Petrovic v Waterhouse & Anor
[2007] NSWSC 508
•19 June 2007
CITATION: Petrovic v Waterhouse & Anor [2007] NSWSC 508 HEARING DATE(S): 18/04/05 - 22/04/05, 26/04/05 - 29/04/05; 29/08/05 - 31/08/05, 02/09/05, 07/09/05, 12/09/05 -16/09/05, 20/09/05, 23/09/05, 31/10/05, 01/11/05 - 03/11/05, 05/11/05, 09/11/05, 14/12/05
JUDGMENT DATE :
19 June 2007JURISDICTION: Common Law Division JUDGMENT OF: Hidden J at 1 DECISION: Judgment for the plaintiff in each case. CATCHWORDS: DAMAGES: - personal injury claim - incident involving runaway horse and plaintiffs in a car - some physical injury but claims primarily for psychological injury LEGISLATION CITED: Civil Liability Act 2002 PARTIES: Natalie Petrovic (plaintiff - 20134/2004)
Ruzica Petrovic (plaintif - 20132/2004)
Gai Waterhouse Racing Pty Ltd (1st defendant)
Australian Jockey Club (2nd defendant)
FILE NUMBER(S): SC 20134/2004; 20132/2004 COUNSEL: P Semmler QC with R Royle (plaintiffs)
J Sexton SC with R Cheney (1st & 2nd defendants)SOLICITORS: Vizzone Ruggero & Associates (plaintiffs)
Henry Davis York (1st defendant)
Riley, Gray-Spencer (2nd defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONHIDDEN J
Tuesday 19 June 2007
JUDGMENT20134/04 Natalie Petrovic v Gai Waterhouse Racing & Anor
20132/04 Ruzica Petrovic v Gai Waterhouse Racing & Anor
1 HIS HONOUR: These two proceedings for damages for personal injury were heard together, and arise from an accident which was as bizarre as it was distressing. In the early afternoon of 22 January 2001, Ms Natalie Petrovic was driving a car in Alison Rd, Randwick. In the front passenger seat was her mother, Mrs Ruzica Petrovic. They were travelling towards Bondi Junction, where they both worked.
2 As the car reached a point roughly opposite the Randwick Racecourse, several horses emerged from the racecourse and galloped across the road. One of them galloped towards the car and tried unsuccessfully to jump over it. It landed on the roof of the car and its hooves penetrated the windscreen. The horse, “Honour & Strength”, weighed about 500kg. It was badly hurt and had to be put down.
3 Both Ms Petrovic and her mother allege that, as a result of the incident, they suffered physical and psychological injury. The horses had been under the control of strappers employed by the first defendant, Gai Waterhouse Racing Pty Ltd. It seems that the animals were startled by the noise of a motor vehicle in the racecourse and the strappers were unable to restrain them. The second defendant, the Australian Jockey Club, was the occupier of the racecourse. The horses were able to kick down a gate giving them access to Alison Road.
4 Both defendants admit their duty of care to the plaintiffs and their breach of it. The only issue is damage. The defendants contend that, if the plaintiffs suffered any injury at all, physical or psychological, both of them have greatly exaggerated it. I received a great deal of expert evidence, all of which is important. However, the plaintiffs’ credibility is central to the resolution of the case.
5 I shall deal as succinctly as I can with the large volume of evidence, oral and written, produced in the course of a lengthy trial. I have the benefit of comprehensive written submissions, developed orally, from senior and junior counsel for the plaintiffs, who were jointly represented, and for the defendants, who also were jointly represented. This judgment will address the issues raised in those submissions. Although the two proceedings are closely related, it is appropriate to deal with the case of each plaintiff separately, examining the background of each of them, her account of the accident and the evidence of its effect upon her.
Background
6 The daughter of Croatian parents, Natalie Petrovic was born in this country on 13 October 1982. She was eighteen years old at the time of the accident and is now twenty-four. Shortly before the accident she had completed her Higher School Certificate, and she intended to pursue a long-standing ambition to become a primary school teacher. She had enrolled in the Bachelor of Science and Education Degree course at the University of New South Wales, and hoped after a year to be able to transfer to the Bachelor of Education course at Sydney University. Since the age of sixteen she had worked part time at K-Mart at Bondi Junction, and she intended to continue working there while at university. She has two older siblings, a sister and a brother, both of whom entered professions after completing tertiary education.
7 She enjoyed good health and kept fit, playing a variety of sports and exercising at a gymnasium. She had a boyfriend and a circle of friends from school and elsewhere. She had a good social life. In evidence, she described her life prior to the accident as “happy and fulfilled”. This was the observation of a number of witnesses called in her case, and I shall refer later to aspects of the evidence of some of those people.
The accident
8 Ms Petrovic’s evidence about the accident was that she had stopped the car at traffic lights at the corner of Alison Road and Doncaster Avenue. She started to drive off when the lights turned green, and it was then that she saw the horses. She stopped the car to allow them to get across the road. She described them as “jumping up like mad” and said that it was “as though they were flying through the air and coming towards us”. When the horse landed on the car, she said, there was a “big bang”, the roof “caved in”, the windscreen shattered and two of the animal’s hooves came through it.
9 She went on to say that the horse’s hooves were “kicking at us”, striking her on “my lower part and my knees.” She turned towards her mother, placing her left leg over her and leaving her right side exposed to the front of the car. She felt the impact of the roof of the car on her head and her right shoulder and was “pushed down” into her seat. She feared for her mother’s life, and her own. She described a fear of “unimaginable” intensity. Both she and her mother were screaming, but she could not see her mother because the roof of the car had “collapsed in between” them. Towards the end of the incident, which lasted some minutes, she could not hear her mother and she thought that she was dead.
10 Somehow the horse got off the car, and a bystander helped her out of it. Her mother remained stuck in the car until she was removed by police and ambulance officers who arrived at the scene. Both of them were taken to the nearby Prince of Wales Hospital.
11 There was relatively little dispute at the trial about the details of the incident itself. However, there was an issue whether the horse’s hooves had penetrated the windscreen. I am satisfied that they did. Some television news footage of the incident was admitted into evidence, on the basis that I would have regard only to what was depicted and not what was said by the newsreader. From that it is apparent that the horse had suffered injury to the lower part of both its front legs. It also shows significant damage to the car’s windscreen, which was explained in evidence by the proprietor of the smash repairs business to which the car was taken and an employee in that business. That said, it appears from the medical evidence that Ms Petrovic was not struck by either of the animal’s hooves with such force as to cause severe and immediate injury.
Physical injuries
12 The hospital notes record that Ms Petrovic complained only of mild headache and mild back pain. However, over a period after the accident she complained, and she continues to complain, of a variety of physical ailments said to be attributable to the accident. For these she consulted her general practitioner, Dr Pang, and a consultant physician to whom that doctor referred her, Dr Kwong.
Headaches
13 Her evidence was that she has suffered from headaches since the accident. Apart from her complaint at the hospital to which I have referred, she told Dr Pang two days after the accident that she suffered from persistent generalised headache and she consistently complained of headaches to Dr Morgan, a psychiatrist who has been treating her and to whose evidence I shall refer later. She also spoke of her headaches to a friend, Ms Rio Leal and a family friend, Mrs Anna Briza. This condition, of course, is consistent with her account of her head having been struck by the roof of the car.
Back
14 She said that her lower back was very sore in the weeks following the accident, and this also is a complaint she made to Dr Pang in her consultation with him two days after it. She said that she has continued to experience lower back pain. Dr Kwong referred her for physiotherapy and hydrotherapy. Since 2004 she has been undergoing osteotherapy which, she said, provides her with some relief.
15 No comment was made about these aspects of her evidence in final submissions by counsel for the defendants. However, as I have said, her credibility generally was challenged.
Left knee
16 She complained from an early stage about pain to her knees, particularly the left knee. Dr Kwong described her complaints about pain in that knee as “persistent”. He noted crepitus in the knee, a symptom of injury which he said could not be feigned. He later observed some wasting of her left thigh, again an objective sign of a problem in the knee.
17 In May 2005 Dr Pang observed a lump at the back of her knee, in the popliteal area, which he diagnosed as a “Baker’s cyst”. This is an uncommon condition, caused by leakage of joint fluid from the knee into the back of the knee area. He saw it as consistent with trauma to the knee caused by her being kicked by the horse in the accident. He referred her to Dr Biggs, an orthopaedic surgeon, who aspirated fluid from the knee and injected it with cortisone and local anaesthetic. A few weeks later Dr Kwong repeated that procedure.
18 Assisted by an abnormal MRI scan, Dr Kwong concluded that she suffered from mechanical symptoms attributable to patello-femoral chondral damage, a condition which he said was hard to treat. Given the persistence of her complaints about the left knee since his first contact with her, he considered trauma from the horse’s hoof as the most likely explanation of the condition.
19 In July 2005 Dr Pang referred her to another orthopaedic surgeon, Dr Rosenberg. That specialist diagnosed what he described as probable patello-femoral joint irritability and loose cartilage in the joint, causing a synovitis and effusion and swelling in the popliteal fossa. He recommended arthroscopy and chondroplasty. However, she was reluctant to undergo surgery, and Dr Kwong advised against it because there had been some improvement in the condition. Nevertheless, he said that she would have some degree of pain and restriction of movement of the knee indefinitely.
20 Among the medical experts relied upon by the defendants were Associate Professor Jones, a specialist in rehabilitation medicine, Dr Harvey, an orthopaedic surgeon, and Dr Schutz, consultant surgeon. Dealing with Ms Petrovic’s physical complaints generally, Associate Professor Jones and Dr Harvey questioned their genuineness, saying that they found no adequate organic basis for them. Dr Schutz provided two reports but did not give evidence. His first report records that the symptoms she described were not borne out by his examination, and he thought it likely that “non organic factors” were influencing her presentation.
21 Associate Professor Jones saw her condition as it was diagnosed in 2005 as degenerative, saying that he had observed no abnormality in the knee when he had examined her in the two preceding years. He agreed in cross-examination that the condition could be the result of “severe and direct trauma to the knee”. However, he did not attribute it to the accident, noting that there was no evidence of trauma of that kind, such as bruising or laceration, at the time.
22 Dr Harvey accepted that she had “an effusion” in the knee and that that was indicative of “some pathology” in that area. He also accepted that the effusion could be the result of trauma if it appeared shortly afterwards. However, given that it did not become apparent until 2005, he also did not attribute it to the accident. Dr Schutz was of the same view, noting in his second report the passage of time and his understanding that there was “no history or evidence of injury” to the knee.
Left thigh
23 She also said that she experienced numbness in her left thigh within a few days of the accident and that this has endured. At a consultation in January 2004, Dr Harvey noted that this was over the area of distribution of the lateral cutaneous nerve in that thigh and he thought that she may have a meralgia paraesthetica. On a later examination, in October 2005, he noted that that area of sensory loss was much smaller and it appeared to him that that condition was resolving. However, it seems that she told Associate Professor Jones, also in a consultation in October 2005, that the numbness had not improved. He found that unusual, given that one might expect new growth of cutaneous nerves, and could see no anatomical explanation for the condition.
24 There was relatively little evidence about this complaint, and it was the subject of no more than passing reference in final submissions.
Right shoulder
25 As I have recorded, Ms Petrovic said that in the accident the roof of the car came into contact with her head and her right shoulder. Ms Leal gave evidence that shortly after the accident she began to complain about both shoulders and her neck, that she looked “really uncomfortable” and that she was moving her shoulders in an unusual way. Ms Leal demonstrated this movement, which Mr Semmler QC, for the plaintiff, described as “a kind of ripple movement”. When she first saw Dr Pang he noted tenderness in both shoulders.
26 She gave evidence that over the next few weeks her right shoulder became very sore. She complained about this to Dr Kwong, who noticed a decreasing range of movement in the shoulder. In 2002 an ultrasound provided evidence of thickening of the bursa over the supraspinatus tendon, and a later MRI established that she suffered from supraspinatus tendonitis. He treated the condition with anti-inflammatory medication and recommended a local injection, which she resisted for a period of time. She eventually had the injection, but at a time which he thought was probably too late to be effective.
27 Dr Kwong reported that she developed the condition known as “frozen shoulder”. Dr Peter Isbister, consultant orthopaedic surgeon, reported the same diagnosis after a consultation in August 2002. Dr Kwong described it as a painful condition with significant restriction of movement of her arm generally and, in particular, inability to raise it above her shoulder. Given that the condition had endured for several years, he was of the view that it was permanent.
28 In response to this evidence, the defendants relied upon the reports of a number of specialists and videotaped observations of Ms Petrovic by an insurance investigator. In reports prepared over the period from late 2002 to the end of 2004, Dr Endrey-Walder, Dr Harvey, Associate Professor Jones and Dr Schutz observed no wastage of the right arm, which would have been expected with significant restriction of movement of the limb. Indeed, the right arm was seen to be slightly larger than the left.
29 Dr Schutz was critical of the report of the ultrasound to which I have referred, noting that it made no comment about the range of movement of Ms Petrovic’s shoulder. He considered the movements of the shoulder which he observed in a consultation with her of December 2002 to be inconsistent with frozen shoulder. In a report of December 2004 he noted that the MRI scan found “features of mild supraspinatus tendinosis but no evidence of a tear”. From this he concluded that “while there may be mild changes, there was no substantial defined problem with the shoulder”. He thought that these features would respond to treatment and did not anticipate a “long term” problem with the shoulder. Nor could he see “a likely mechanism for injury” to that shoulder in the accident as he understood it.
30 In a consultation of April 2003, Associate Professor Jones observed that Ms Petrovic seemed to have almost no movement of the right arm during formal examination. However, he noted “significantly more movements” during the interview, although there were no “full range” movements. In a consultation of December 2004 there appeared to have been “very remarkable improvement”, and he noted that power in the right arm commenced at about eighty per cent of normal and proceeded “with encouragement” to normal power. In reports after each of those consultations, he expressed the view that her physical disabilities generally, including the shoulder, had no organic basis.
31 After a consultation of January 2004, Dr Harvey reported that “numerous inconsistencies” observed during his examination of Ms Petrovic indicated that her symptoms were not “physically determined”. As to the shoulder, he observed widespread tenderness extending from the shoulder to the elbow which, he said, was “quite unlike what one sees in shoulder injury, where the tenderness is more localised about the shoulder joint itself…”. He added that she demonstrated a pattern of movement in the shoulder which also was “unlike what one sees in organic shoulder stiffness…”.
32 As I have said, the defendants also rely upon videotaped surveillance of Ms Petrovic, from which four videotapes were admitted into evidence. They depict her:
- * at her local shops on 13 February 2004 (exhibit A);
* walking in the general area of her home on 26 January 2005 (exhibit B);
* at a shopping centre with her mother on 10 March 2005 (exhibit C);
* driving, again in the general area of her home, on 26 March 2005 (also in exhibit C);
* in the foyer of a city building, again with her mother, on 14 April 2005 (exhibit D).
33 Generally, none of the videos shows any stiffness or restriction of movement of the arm. In exhibit A, at a local shop, she is seen to reach out with her right arm and replace a grocery item on a shelf. In exhibit B she appears to be swinging both arms freely at her sides as she walks, and she is seen to adjust the earphones of a walkman with both hands, and with her right hand to scratch her right ear and to adjust a bag behind her waist. In exhibit C, at the shopping centre, she again appears to be walking with her right arm swinging freely, and she is seen to carry items with that arm and to try on a jacket. In the second part of that exhibit she is seen driving a car, opening the car door with her right hand and carrying bags from the car to her home in her right hand. In exhibit D, sitting in the foyer of the building, she appears to be speaking to her mother in an animated fashion, gesticulating with both hands. She is also seen to put a mobile phone to her ear with her right hand. At no time in any of the videos does her facial expression convey that the use of her right arm was causing her pain.
34 Associate Professor Jones and Dr Harvey provided supplementary reports after viewing the videos. Associate Professor Jones saw the activities of which Ms Petrovic appeared to be capable, particularly her mobility and capacity to drive a car, as “somewhat in contrast to her presentation” at his formal interviews with her. Dr Harvey saw the videos as further evidence of inconsistency between her behaviour and her presentation to him, saying that she was seen to move her right arm much more freely than when he examined her. He noted that, while the videos did not show her doing anything strenuous, they did show that “as soon as she felt she was unobserved, she moved her right arm about normally and swung it normally”. He added, however, that at no stage did he see her raise her arm above shoulder level.
Chronic pain syndrome
35 By February 2004 Dr Kwong concluded that Ms Petrovic suffered from chronic pain syndrome with a neuropathic component. As I understand his evidence, this means that her physical injuries and her psychological state, to which I shall turn shortly, interact to cause her stress and what he described as a “vicious cycle of sleep disturbance”. That stress and fatigue then maintains and exacerbates the pain from her physical injuries. For this condition he referred her to a pain specialist, Dr Gorman.
36 This also was not a matter specifically addressed in final submissions for the defendants. I shall revisit the evidence about her physical disabilities when I turn to the question of her credibility.
Psychological injury
37 Of much greater significance are the psychological effects of the accident upon Ms Petrovic. This is the major component of her claim although, as will be seen, her physical and psychological complaints intersect to a significant extent.
38 In evidence, she said that at the hospital after the accident she was “so shaken up” that she did not want to talk to anybody. When she and her mother arrived home she was in a state of disbelief about what had happened, and needed to be close to her mother because she had feared for her life. Thereafter, she slept poorly, cried a lot and found it difficult to concentrate. She withdrew from people. She found it very hard to speak about how she was feeling because to do so would remind her of the accident, which would distress her. She felt depressed, an emotional state she had not previously experienced. These symptoms endured, and from time to time she had suicidal thoughts.
39 This found support in the evidence of other witnesses, who knew her before the accident and were able to speak of how she changed after it. These were her brother, Stjepan, her friend, Ms Leal, a relative, Navenka Jurisic, and family friends, Carole Hopton, Anna Briza and Vera Pazin. It is sufficient to refer to the evidence of her brother and of Ms Leal.
40 Though several years older than her, Stjepan Petrovic was close to his sister. He was living at home at the time of the accident, and he did not leave the home until he married in August 2003, some nineteen months later. He and his wife moved into a unit not very far from the family home, and he maintained regular contact with his sister and his mother.
41 He observed that his mother would retire to Ms Petrovic’s room at night. However, they did not sleep and for much of the night he would hear them crying. He said that his sister became “really withdrawn”, and that she would spend a lot of the daylight hours in her room, rather than with the family. He found that he was unable to talk to her about the accident, saying that whenever he asked her what had happened “she would kind of shut down…”.
42 He frequently drove his sister and his mother to doctors for appointments and, for a time, his sister to university. He noticed that in the car she appeared to be distressed, she would “just clench up and close down”, but he could get no response from her when he asked her what was the matter. Such was his concern for her and for his mother that he and his wife moved back into the family home towards the end of 2004.
43 Ms Leal also described her as having “shut down”. On occasions she would ring Miss Leal in the middle of the night but, while Ms Leal would speak to her, she would simply cry and have little or nothing to say. For a time Ms Leal was the only friend she retained, but eventually Ms Leal could not maintain the relationship and it terminated in about August 2004.
Diagnosis and prognosis
44 Since April 2001 Ms Petrovic has been treated by Dr Hugh Morgan, psychiatrist, to whom she was referred by Dr Kwong. He diagnosed Post Traumatic Stress Disorder (PTSD), complicated by major depression and chronic pain syndrome. That syndrome, he said, is a recognised psychiatric disorder. In his consultations with her he identified dissociative features, which he described broadly as a numbness or emotional disconnection, consistent with a person who had experienced extreme trauma.
45 Ms Petrovic has also been treated by Mr Sam Borenstein, clinical psychologist, to whom she was referred by Dr Pang shortly after the accident. He also diagnosed PTSD and major depression. In reports of September 2002 and March 2003, he recorded a history of loss of physical fitness, disturbed sleep, reduced concentration, loss of motivation and anhedonia, that is, a general loss of enjoyment of life. Ms Petrovic also complained of “flashbacks” of horses jumping on the car and dreams of her mother dying.
46 The diagnoses of Dr Morgan and Mr Borenstein were supported by the evidence of three psychiatrists engaged by Ms Petrovic’s solicitor for forensic purposes. These were Dr Patricia Jungfer, Dr Jonathan Phillips and Dr Patrick Morris, who has a particular interest in PTSD. All these experts provided reports and gave oral evidence.
47 Dr Morgan treated Ms Petrovic with a variety of anti-depressant medication and medication for her insomnia. He also enrolled her in a course of rehabilitation known as the Activate program, but after a few days of the program she found that she could not cope with it. Mr Borenstein treated her through psychotherapy.
48 I have referred to the diagnosis of chronic pain syndrome by Dr Morgan and Dr Kwong. Amplifying Dr Kwong’s explanation of that syndrome, Dr Morgan said that people who are depressed tend to be more sensitive to pain. Ms Petrovic’s syndrome was “exacerbated or perpetuated” by the depression and the PTSD. In so far as her pain originated from the accident, her experience of it reminded her of the incident so as to engender “an association between physical pain and the psychological meaning of that pain”. In that way, her organic symptoms could be “magnified by the psychiatric disorder”.
49 Dr Morris described this phenomenon as “somatic disturbance”, whereby “a person will present psychological symptoms in a physical idiom, for example, as a pain, when underneath the pain there is a psychological component to pain as an expression of pain”. He added that the person’s experience of pain is genuine, and that it can lead to restriction of movement and reduced capacity for physical activity. Evidence to the same effect was given by Dr Jungfer and Mr Borenstein. Dr Jungfer used the expression “somatisation”, referring to a statement in a psychiatric journal that ”PTSD often presents with co-morbid depression or in the form of somatisation”. Mr Borenstein, while acknowledging his inability to comment upon organic complaints, thought it “highly likely” that Ms Petrovic’s psychological condition would “exacerbate and magnify” her physical problems.
50 The evidence of Dr Morgan and Mr Borenstein was that at the time of the trial she had made little progress. At an early stage she had been able to get back into a car and to commence university studies, which she attributed to Mr Borenstein’s therapy. Her university experience is a matter to which I shall return. Otherwise, her symptoms had not abated. Dr Morgan also said that she had continued to suffer from hyperarousal, which he described as a “state of fright … constantly feeling on edge, looking out for something terrible to happen”. This condition, he said, made her prone to irritability and anger. That her condition remained unchanged was confirmed by the observations of her brother and of the other relatives and family friends to whom I have referred.
51 The opinion of all the experts to whom I have referred was that her prognosis was poor. Dr Morgan reached that conclusion in the light of the persistence of her symptoms over a period of years. His view was reinforced by her aversion to any kind of therapy which involved her re-living the experience of the accident, an aversion which he had noted in other patients whom he had treated for PTSD. Nearly a third of the sufferers of that disorder, he said, had the condition chronically and modern psychiatry can do nothing to alleviate their distress.
52 This view was shared by Dr Morris who, as I have said, has made a special study of PTSD. He also noted her lack of response to treatment and concluded that no further recovery could be expected. Like Dr Morgan, he was speaking of the symptoms of her PTSD and her depression. However, he added that psychiatry was becoming aware that PTSD is “one of the most chronic and disabling of conditions” for which there is no “really effective treatment”. He continued, “We are talking about people trying to cope with it rather than looking at recovery because it is a chronic condition”.
53 Mr Borenstein was equally pessimistic about her future, as were Dr Phillips and Dr Jungfer. Mr Borenstein also referred to the significance of her age at the time of the accident, commenting that it was “absolutely devastating” for her to have had such an experience “at a crucial stage of her adolescent development and young adulthood …”. Dr Jungfer’s evidence was to the same effect, stressing the importance of the fact that the incident occurred at an age when she was “establishing …her adult identity, aspects of personality were continuing to form but also her adult social networks, her occupational networks, her intimate relationships”. She also referred in one of her reports to “evidence in the literature” demonstrating that people with PTSD which continues for more than twelve months have a poor chance of recovery.
54 Several of these experts commented upon the effect of the present litigation upon Ms Petrovic. They were in general agreement that it was an additional and immediate source of stress for her, but that the resolution of the case would not lead to her recovery. The same view was expressed by her general practitioner, Dr Pang. Dr Phillips said that for most people litigation of this kind was “an issue of some importance”. He said that he had seen patients make significant recovery after being relieved of the stress of litigation, but he added that research had shown “that the outcome post litigation is far less positive than one would immediately think”.
55 The defendants had Ms Petrovic attend upon two psychiatrists, Dr Eli Revai and Dr Phillip Brown, and a psychologist, Dr Wendy Roberts. All three provided reports, and Dr Brown and Dr Roberts gave oral evidence.
56 After a consultation in December 2003, Dr Revai reported that he was sceptical about her presentation, saying that he found it hard to understand why her present disabilities had not resolved. He thought that she was “extremely passive towards her rehabilitation”, and gained the impression “that she continued to see her treating specialists, not for the purpose of relief of symptoms, but to justify their existence”. He expressed the opinion that she had set out “to justify their perpetuation until she has her day in court”. He did not arrive at any psychiatric diagnosis. His view was unchanged after another consultation in October 2005. Speaking of the physical and psychological symptoms she described, he reported that “if Natalie was as disabled as she claims to be she would have been hospitalised long ago for treatment of such serious disorders…”.
57 Dr Brown saw Ms Petrovic on three occasions between April 2001 and July 2002, and again in October 2005. He accepted that she had developed PTSD after the accident, but he saw it as short lived and considered that it had subsided by the time she went to university in 2001. During the earlier consultations he noted her lack of progress under psychological treatment, which led him to express the view in his first report that “the cause of her symptoms has moved from the accident to her psychological constitution, the mechanism of which could be a psychological overlay or malingering”. He considered that she was exaggerating her symptoms and that her attitude to recovery was negative. After the 2005 consultation, he concluded that she was not motivated to recover, that her described symptoms did not match his clinical observation and that, accordingly, there was “significant malingering”.
58 The same conclusion was reached by Dr Roberts, to whose evidence I shall turn a little later. It will be seen, then, that there is a stark conflict between the evidence of the experts relied upon by the opposing parties. Particular attention was devoted to two issues: the question whether Ms Petrovic was malingering and her progress at university. It is convenient to deal first with the latter.
University
59 I have earlier referred to Ms Petrovic’s aim to be a primary school teacher and her plan to undertake university study to that end. I heard evidence from Ms Elizabeth Maclean, a teacher at the high school which she had attended, that she had been a diligent, capable and ambitious student. Ms Maclean had no doubt that she would have been able to complete a university course qualifying her as a primary teacher.
60 In 2001 she embarked upon the Science and Education course at the University of New South Wales, as planned. She completed the year, and did well. Of six subjects undertaken, she passed four, gained a credit in one and a distinction in another. Her evidence was that, nevertheless, she found attendance at university very difficult. She found it hard to concentrate and to cope with being around other people and interacting with them. She said that she was reliant upon the help of her brother, Stjepan and Ms Leal, who did her assignments for her. Both were themselves undertaking tertiary study.
61 In 2002 she was able to transfer to the Bachelor of Education course at Sydney University. She said she found that more demanding, and she continued to rely upon her brother and Ms Leal. In addition, the University Disability Centre provided a person to attend lectures and take notes for her. She was granted extensions to hand in assignments and was given special consideration for her exams. That said, she completed the year and of eleven subjects undertaken, she passed five, gained a credit in one, and distinctions in the other five.
62 She deferred her studies in 2003 because, she said, she could not cope. By then, her brother and Ms Leal could not help her as they had been doing. Stjepan had finished his university course and was working, and Ms Leal had increased commitments in her course. She said that she wanted to go back to university and felt “really down” at the fact that she could not.
63 She deferred study again in 2004, saying that at that stage she felt she could not go back. She was told by the University authorities that she could not defer again, and she re-enrolled for the 2005 academic year. However, her brother and his wife arranged to take her on a holiday as a surprise, and on her return she found that she could not bring herself to attend the University. As she put it, “I was always contemplating going back, but always felt that I couldn’t cope.”
64 Ms Petrovic’s account was generally supported by the evidence of Ms Leal and her brother. It is unnecessary to recite Ms Leal’s detailed evidence about this aspect of the matter. It is sufficient to say that in 2001 she afforded considerable assistance to Ms Petrovic, even though she was herself studying at a different university. She attended lectures with her when she was free to do so, and took notes. She wrote assignments for her, having done the relevant research, sometimes with the help of Stjepan. She helped her prepare for exams.
65 She afforded the same kind of assistance in the following year, having herself transferred to Sydney University. Although she was doing a different course, they had some subjects in common and attended some tutorial classes together. Generally, it appeared to her that Ms Petrovic had difficulty concentrating and to be uncomfortable in large groups of people. She had never been like that before the accident.
66 Stjepan Petrovic gave evidence that he had encouraged his sister to commence university. He observed the assistance which Ms Leal provided to her. He helped by doing some of the background reading necessary for her assignments, providing an outline of what needed to be done and sometimes completing the assignments himself. On a few occasions he attended lectures with his sister, and he observed her to be restless and inattentive. As he put it, he found “that she could not focus in class”. She complained to him that she found it uncomfortable to sit in lecture theatres and difficult to concentrate.
67 Generally, he said that she “didn’t seem very motivated to be there”. When she deferred her study in 2003, he tried to encourage her to continue with it. However, he found it hard to talk to her about it, saying that she would not “open up” to him and would “just break down and start to cry…”. He felt that he could not pursue the issue with her. Like Ms Leal, he noted the marked difference between his sister’s approach to study after the accident from that which she had exhibited before it. She had never needed his help in that way when she was at school where, he said, she was “quite self sufficient”.
68 As will be seen, the defendants rely upon the evidence of Ms Petrovic’s performance at university on the question of her credibility. It also relates specifically to the issue of malingering, to which I now turn.
Malingering?
69 I have referred to the evidence of Dr Revai and Dr Brown on this issue, and I shall turn shortly to that of Dr Roberts. Before doing so, however, it is necessary to examine the evidence of another expert engaged by Ms Petrovic’s solicitor, to whom I have not referred. This was a neuro-psychologist, Mr Peter Rawling, who subjected her to certain tests towards the end of October 2002. He provided reports and gave oral evidence.
70 Based on her education record prior to the accident Mr Rawling estimated her intelligence to fall into the upper end of the average range. However, she performed very poorly in a series of conventional tests of intelligence, memory and attention which he administered. Her IQ scores fell within the borderline defective range and he noted that, even on subtests “not known for sensitivity to stress or brain injury, her scores were well below expectation”. Generally, the tests pointed to a “severe, global impairment in intellectual, memory and attentional processes”, which he found surprising in the light of her university results.
71 That being so, he decided to administer a test “designed to screen for simulated memory impairment”. This was the Test Of Memory Malingering, or TOMM. This test requires a patient to memorise 50 drawings of common objects. The test is quite simple, even for patients with a significant head injury. Scores within the range of 18 - 32 out of 50, termed the “chance level”, can be assumed to be the result of incomplete effort on the patient’s part. Ms Petrovic’s scores were within that level. Scores below it indicate that “the failures were deliberate or consciously made”. In oral evidence, he explained that chance level scores indicate “poor effort for whatever reason”. Obviously, the test cannot reveal what the reason might have been.
72 He reported that Ms Petrovic was “substantially depressed and anxious” at the time of the test, and thought it reasonable to conclude that “her mood disorder had undermined her application and effort on testing”. Given that she had not scored below the chance level, he could not say “with any degree of certainty” that she was making errors deliberately. As to the neuro-psychological testing generally, he reported that her poor performance could be the result of incomplete effort or of her “exaggeration of disability”. Given “the high levels of depression, anxiety and stress apparent on mood state questionnaires”, he thought it more likely that her performance was “the product of her disturbed mood state”. However, he acknowledged that those emotional symptoms themselves “could be subject to exaggeration”.
73 Dr Roberts assessed Ms Petrovic at the end of November 2004. She administered a number of tests, including the TOMM. Ms Petrovic’s scores were again at the chance level. Dr Roberts reviewed Mr Rawling’s test results, and concluded that they provided evidence of exaggeration. In one of her reports, referring to those results, she wrote:
- She obtained extremely poor scores with her IQ scores falling in the range where if genuine, she would have been in special low learners’ classes at school. She could not possibly have either enrolled in or concurrently performed as she did at University with genuine scores at this level. Her memory scores as assessed by him were also abysmally poor and in particular, she had no delayed memory to speak of. The overall level of the rest of the scores was in the slow learner class range…. Her actual marks at University suggest that she must have been of at least average to high average intelligence and cognitively intact.
74 Another test Dr Roberts administered was the Minnesota Multiphasic Personality Inventory - 2 (MMPI – 2). This test assesses emotional functioning, requiring the patient to answer some 567 questions. A good deal of evidence was given about it, principally by Dr Roberts, and some articles about it were tendered. However, it was the subject of only brief oral argument by Mr Sexton SC, for the defendants, although it was developed more fully in written submissions for the plaintiff. Given the view I have formed of the case generally, it is not necessary to examine this evidence in any detail.
75 The test is generated by computer and the patient selects one of a limited number of answers to the questions. The computer program allocates scores to those answers and these are interpreted by the clinician. It has validity scales from which the genuineness of the patient’s responses is assessed. Ms Petrovic’s scores were such that Dr Roberts concluded that they were the product of conscious exaggeration. Indeed, it was largely because of these scores that she decided to administer the TOMM test.
76 In evidence, Ms Petrovic denied having fabricated her responses to the tests conducted by Dr Roberts or Mr Rawlings. Asked about the TOMM test administered by Dr Roberts, she said that she had tried very hard but found it very difficult, adding that she did not want to be there and could not concentrate. She and her mother attended Dr Roberts’ rooms on the same day and were there from 8.30am to 4.20pm, although there were breaks in their consultations and they were provided with refreshments. Dr Roberts observed her to be unhappy to be there and described her as “sullen”. She completed the MMPI-2 slowly and complained frequently.
77 Mr Rawlings gave evidence that he did not support the use of the MMPI-2 test for forensic purposes, describing it as “too long and demanding”. When it was put to him that Ms Petrovic had undertaken the test on an occasion when she had been at Dr Roberts’ rooms for the best part of a day, he expressed the view that it was “a very strong ask, very demanding thing to require of a patient”. Dr Jungfer described the test as “huge”. She said that, in her clinical experience, “if someone indicates a strong lack of preparedness to participate” in a test, the effort was likely to be fairly low “and you might get what are uninterpretable results as a consequence of that lack of effort”.
78 Mr Borenstein considered possible reasons for her scores on the MMPI-2 test, including that she was faking her responses. However, based on his clinical experience with her, he thought it most likely that she was “avoidant of that activity”, that she had “taken on a level of resistance” and that she “probably attempted the task somewhat haphazardly”. He said that poor mood can effect both concentration and motivation and expressed the view, knowing Ms Petrovic as he did, that the test would be “an enormous task for her…”. He also saw her poor mood and test resistance as explanations for her scores in the TOMM test.
79 On the question of malingering generally, three practitioners who had been treating her over an extended period of time believed her complaints to be genuine. Dr Morgan found them to be “entirely consistent”, and he saw no sign of malingering or exaggeration and no evidence of secondary gain. Mr Borenstein gave evidence to the same effect, as did Dr Kwong. Dr Kwong also said that there was objective evidence to support her physical complaints, although he added that it was well recognised that there could be an interaction between disorders of the mind and those of the body and that there was such interaction in her case.
80 Dr Morris saw no hint of exaggeration in his examination of Ms Petrovic. Her behaviour in the videos was put to him (although they were not shown to him). Asked if that behaviour would cause him to doubt his diagnosis, he said that he would need to know what her psychiatric state was at the time. In particular, he would need to know what she was thinking, and whether she was doing things easily or with “a lot of intense psychiatric stress …”. He did not think he could judge that from viewing the videos.
81 Dr Jungfer denied that anything in Ms Petrovic’s presentation suggested that she was exaggerating her symptoms. The effect of the videos was also put to her and she said that that material would not lead her to question her diagnosis. In particular, the fact that she was seen to be in animated conversation with her mother in the foyer of the city building conveyed to the doctor no more than the “very particular bond” which one might expect of “two survivors of a traumatic event”. She added that they could be expected to “comfort and support each other” and that they would “interact probably best together rather than with anyone else”.
Other effects
82 As I have said, prior to the accident, Ms Petrovic had been working part time at K-Mart at Bondi Junction. She had intended to continue that part time work during her university studies. Following the accident, she returned to work at K-Mart in the middle of 2001, initially only working two hours per week and gradually increasing that to ten hours per week. Her evidence was that her right arm became sore, and she found it difficult to cope with customers and co-workers because of her anxiety, her depression and intrusive thoughts about the accident. She terminated her employment in May 2002.
83 Before the accident, she did a wide variety of household tasks, such as preparing meals, cleaning, washing clothes and gardening. She said that it was the Croat tradition that housework was done by the mother and the daughters. Since the accident, she said, she has required the help of family members for these activities.
84 I shall return to these aspects of the evidence when I deal with the question of damages. I turn now to consider Ms Petrovic’s credibility and to assess the strength of her claim.
Ms Petrovic’s claim
85 I have no doubt that this accident was a terrifying experience for Ms Petrovic, in which she feared for her mother’s life and her own. When she recounted it in evidence-in-chief, her delivery was hesitant and she became visibly distressed in a manner which I accept was unfeigned. Generally, her demeanour was rather sombre and occasionally she displayed irritation under cross-examination. In the circumstances, I do not find this surprising. Sometimes she asked for questions to be repeated, but this appeared to me to be a difficulty with concentration rather than evasiveness on her part.
86 I found her a satisfactory witness and I certainly do not believe that she was dishonest. Counsel for the defendants fairly pointed out that, on her own account, she improperly submitted as her own university assignments to which she had made little or no contribution. While one might understand why she did that, it was a course of dubious probity. However, it does not lead me to question the credibility of her evidence. Counsel for the defendants also referred to statements she had made to a number of doctors and psychologists tending to suggest that she had not done as well at university as her results would indicate. However, to several of them she disclosed the help she had received from Ms Leal and her brother, and it is understandable that she would feel dissatisfied with her performance when she had been so dependent upon others to achieve what she did.
87 I am satisfied that, as a result of the accident, she has suffered serious and enduring psychological injury. I am also satisfied that she suffers from the physical disabilities of which she complains, even though not all of them might have an organic basis. Her evidence of her problems, physical and psychological, are supported by the evidence of the other witnesses to whom I have referred. Their credibility was not challenged by counsel for the defendants. Nevertheless, I should record that I accept the evidence of Ms Leal notwithstanding her part in the preparation and submission of the university assignments. I should also record that I found Stjepan Petrovic a particularly impressive witness. He presented as a decent and intelligent young man, whose concern for his sister and his mother was as obvious as it was understandable, but whose evidence was both insightful and patently honest.
88 I have given careful consideration to the videotaped material, but it does not lead me to reject her evidence. Consistently with the views of Dr Morris and Dr Jungfer, I cannot determine her mood from viewing the videos. I accept that her movements, particularly of her right arm, appear to be unimpeded. However, as Dr Harvey pointed out, she is not observed to be doing anything strenuous and at no time does she raise her right arm above shoulder level. Put shortly, the videos display her engaging in unremarkable activity and they disclose nothing of significance, one way or the other, about her physical capacities or her psychological state.
89 I accept her evidence about her difficulty in maintaining university study, notwithstanding her good results in the two years she completed. Her evidence on this aspect found significant support in that of Ms Leal and her brother. I am satisfied that it was only because of the large measure of assistance afforded by both of them, particularly Ms Leal, that she was able to achieve what she did in those two years. When that assistance was no longer available, she could not cope.
90 Turning to the medical evidence, counsel for the defendants referred to the subjective nature of her symptoms, both of psychological distress and physical pain, pointing to the extent to which the various diagnoses upon which her case is based are dependent upon her account of them. That, of course, is the case and was accepted by all the experts who gave evidence. In particular, it is true of PTSD and, in so far as the diagnosis of depression relied upon tests such as the Beck Depression Inventory, those tests are dependent upon the subjective responses of the patient.
91 Counsel referred to the need, spelled out in the familiar diagnostic manual known as DSM IV, to be aware of the danger of malingering when providing reports which might lead to a financial benefit for a patient, and to consider whether it can be ruled out. It was also put that the evidence of the doctors and the psychologist who had been treating Ms Petrovic lacked the objectivity which might be expected of a practitioner engaged for forensic purposes, because their task of treating her necessarily involved an uncritical acceptance of what she told them.
92 However, I found Dr Pang, Dr Kwong, Dr Morgan and Mr Borenstein all to be persuasive witnesses and, notwithstanding their role as treating practitioners, I had no reason to question their objectivity. They all presented as caring practitioners and, indeed, at one stage in his evidence Dr Morgan acknowledged his concern for Ms Petrovic and her mother and accepted a measure of tension between the position of a treating practitioner and that of one engaged for medico-legal purposes. Nevertheless, he said that as a clinician “you are always mindful of how people are presenting” and of the possibility of “some underlying secondary gain”. Mr Borenstein, asked whether he maintained any degree of scepticism when people present for therapy, said that he did not initially and that he always took people “at face value”. He added, however, that a question would be raised in his mind if a patient did not respond to therapy over a period of time, particularly when litigation was on foot.
93 Counsel for the defendants questioned the credibility of Dr Morgan and Mr Borenstein because of reports they had provided in 2004 for the purpose of an application for an expedited hearing of these proceedings. The effect of those reports was that the recovery of both plaintiffs was being impeded by the prolongation of the case, and this was said to be inconsistent with their evidence that the resolution of the matter would not lead to the recovery of either of them. However, I do not read those reports as asserting that either plaintiff could be expected to recover when the proceedings are completed. Rather, they were saying that the case was putting any progress they might make on hold because it contributed to their suffering by its continued focus on the accident, together with the requirement that they attend numerous medico-legal examinations. The reports are not inconsistent with their evidence.
94 Moreover, the evidence of Dr Morgan and Mr Borenstein found significant support in that of Dr Morris, Dr Jungfer and Dr Phillips, all of whom were engaged for forensic purposes. I prefer the evidence of these practitioners to that of the experts relied upon by the defendants, while not denying the standing and experience of those practitioners. The evidence of the doctors and psychologist who were treating Ms Petrovic is strengthened, not undermined, by the length of their clinical association with her.
95 Undoubtedly, her results on the TOMM test were surprising. However, on the whole of the evidence, I am satisfied that they were not the product of exaggeration but were explicable by her psychological condition. In so far as they appear to be far removed from her academic results, I have already observed that I accept that those results could not have been achieved without the help of her brother and Ms Leal. Similarly, her scores on the MMPI–2 test can be explained satisfactorily by her mood, by the length of the test, and by the circumstances in which it was undertaken.
96 On this aspect of the matter the defendants relied to a significant extent upon the evidence of Dr Roberts. I have to say that I have approached her evidence with some caution, as she did not always display the objectivity one would expect of an expert witness. She was somewhat combatative with Mr Semmler during cross-examination, and on occasions she was prepared to express an opinion about the merits of the case outside the area of her expertise.
97 As will be seen, Ms Petrovic’s psychological problems are of the same nature as those of her mother. This led Mr Borenstein to observe in one of his reports that “they feed off each other somewhat …”. Doctor Jungfer was of the same view, observing in one of her reports that “there is little doubt that the fact that her mother was also in the vehicle and injured with similar psychiatric symptomatology” had “in some ways maintained and continued the disorder”. Dr Morgan agreed, reporting that the similarity of their psychiatric conditions was “not surprising or unlikely”. He added:
- Given that they are living with each other, and observe each other’s condition on a daily basis, it is possible that the other person’s symptoms trigger reminders of the accident and of their own physical and mental condition, thus serving to heighten their individual awareness of their symptoms.
98 Dr Schutz wrote of Ms Petrovic that she “demonstrated difficulty in separating her problems from that of her mother”, and that she “often referred to ‘Mum and I’ when describing her symptoms and treatment”. In a later report he related this observation to her physical complaints, saying:
- Having now had the chance to see both Mrs Petrovic and her daughter Natalie again, I am again struck by the similarity of symptoms in the neck and right shoulder girdle and the right arm down to the elbow. I am also struck by the similarity of the other complaints reported by both individuals.
99 Dr Schutz’s comments raise the question whether Ms Petrovic and her mother had put their heads together to exaggerate or fabricate their symptoms, both physical and psychological. I am satisfied that that is not the case. I shall examine Mrs Petrovic’s physical injuries when I turn to her case but, given the nature of the accident, I do not find it surprising that there would be some similarity between her injuries and those of her daughter. That their psychological disorders are the same is readily explained by the expert opinions to which I have just referred. The two plaintiffs, already bonded by mutual affection and their familial relationship, shared a traumatic experience and face its aftermath together. As Dr Morgan also observed, “Recovery for Rosa [Mrs Petrovic] is very important to the recovery of Natalie and vice versa.”
100 Put shortly, the defendants’ case is that Ms Petrovic should receive no more than a modest award of damages for non-economic loss and a very limited amount for past economic loss, reflecting no more than a period of convalescence after the incident. Otherwise, the defendants assert that she has fabricated or exaggerated her symptoms, physical and psychological, for financial gain. For the reasons I have given, I reject that assertion. As counsel for the plaintiffs submitted, it is highly improbable that a young woman of her disposition, energy and promise would choose to put her life on hold, subjecting herself to the stress of lengthy court proceedings and a protracted routine of medical and legal consultations, for the uncertain prospect of substantial compensation. The very fact that she went to university for as long as she did, and returned to part time work for a period, demonstrates that she tried to put the experience of the accident behind her and to get on with her life. Unfortunately, she was unsuccessful in that endeavour.
Damages
101 I am indebted to counsel for Ms Petrovic for detailed written submissions on the question of damages, including precise figures. I find those submissions a useful framework for preparing my reasons, and I shall follow its format in expressing them. I shall set out my findings in relation to each head of damages but, because I am unable to accept all that is put in the submissions and also because a lengthy period of time has elapsed since they were prepared, it will be necessary to have counsel calculate the amount to be awarded.
102 As I have said, apart from a modest award for non-economic loss and past economic loss, the defendants’ position is that no damages should be awarded under any other head. Generally speaking, as to those other heads they did not articulate a fallback position, that is, a more modest approach to any of those heads which I might find established. Consistently with familiar authority, my task in assessing damages is to determine what is reasonable rather than what might be ideal.
Treatment expenses
103 Expenses for past and future treatment, including medication, are dealt with at pp 39-47 of the submissions. The rates and prices referred to are agreed but, of course, the defendants do not accept the reasonableness of the expenses incurred thus far or the future expenses contended for.
104 I am satisfied that the past expenses claimed, including travel expenses, are appropriate and should be assessed in accordance with pp 39-40 of the submissions. Counsel for the defendants made no submission directed specifically to them.
105 The evidence bearing upon future treatment, including medication and travel expenses, is set out at pp 40-47 of the submissions. Put shortly, the effect of the psychiatric evidence was that, although Ms Petrovic’s prognosis is poor, continued treatment is necessary to ensure that she does not regress. Dr Morgan thought that she would need weekly or fortnightly consultations, which might become monthly or three-monthly over a period of time. Such a regime, he thought, should last for three to five years, when it would be necessary to review the position in the light of whether she was obtaining any benefit from the treatment. He also thought that she would benefit from continuing contact with a psychologist for three to five years or, possibly, indefinitely. Mr Borenstein agreed that she may need psychological assistance for life.
106 Her counsel proposed allowance for weekly consultations for three years, fortnightly consultations for a fourth year, and thereafter a cushion or buffer against the possibility that consultations may have to continue for life. For this, an amount based upon the value of six consultations per year for the remainder of her life was proposed. For psychological consultations, they argued for an allowance based on weekly consultations for four years, followed by fortnightly consultations for life.
107 The defendants’ position was that, even accepting the genuineness of Ms Petrovic’s complaints, treatment thus far had not led to her recovery and there would be no point in continuing it. I accept that there should be an allowance for future psychiatric and psychological treatment, but I consider that what is claimed is significantly more than is called for. For psychiatric treatment, I would allow an amount based upon fortnightly consultations for two years, monthly consultations for a further two years, and a buffer of $4,500 for treatment thereafter. For psychological treatment, I would also allow for fortnightly consultations for two years, monthly consultations for a further two years, and a buffer of $25,000 for subsequent visits.
108 There is a claim for continued treatment by Dr Pang and Dr Kwong, for osteotherapy and physiotherapy, and for medication. Those claims are posited upon the assumption that that treatment and medication will continue for the rest of Ms Petrovic’s life. I accept that she has benefited from treatment and medication of that kind, and is likely to do so for some time in the future. However, I cannot allow claims of the order sought. The claim for treatment arrives at an amount close to $140,000, and for medication a little over $80,000.
109 I think it appropriate to deal with these claims by way of lump sums as a buffer. For treatment I would allow $70,000 and for medication $45,000. There is a claim for the expense of travel for attendance upon doctors and other health professionals, amounting to a little over $10,000. I would allow $4,000.
Non-economic loss
110 Non-economic loss is dealt with in the submissions at pp 47-8. In accordance with s16 of the Civil Liability Act 2002, it is necessary to determine a proportion of a most extreme case. Counsel for Ms Petrovic proposed 75%, which I consider excessive. I would allow 60%.
Economic loss
111 The evidence of the effect of the accident upon her part-time employment at K-Mart is summarised at pp 48-9 of the submissions. Again, rates of pay are not in dispute. I accept that prior to the accident she was working four to five days per week, and that she was unable to return to work after the accident until the middle of 2001. I also accept that she had intended to work for about twenty hours per week while she was studying at university, and for thirty hours per week during university holidays.
112 After she returned to work in July 2001, she commenced at two hours per week and gradually increased it to ten hours. She stopped work in May 2002, and I accept that that was because of the physical and psychological problems arising from the accident to which I have referred earlier. That conclusion is supported by the evidence of Dr Kwong and Dr Morgan.
113 As to the future, I am satisfied that, but for the accident, she would have completed university and realised her ambition to become a primary school teacher. Her counsel’s position in relation to loss of work capacity is to be found at pp 53-7 of the submissions. A report by Furzer Crestani Services assesses amounts for future economic loss based on two alternative scenarios. The first scenario assumes a certain measure of progression as a primary school teacher, while the second scenario assumes that she would have progressed beyond that stage to the position of Senior Assistant and ultimately to Principal. It was acknowledged that if the second scenario were adopted, the discount for vicissitudes would be effectively 25%.
114 There is abundant expert evidence that she now has no prospect of employment as a primary school teacher or, indeed, of employment of any kind. This was the view of Dr Morgan, Dr Kwong, Mr Borenstein, Dr Morris and Dr Jungfer. I must say that I find such a bleak prospect for a woman so young very disturbing, and I have some reservations about it. Nevertheless, I think it appropriate to award damages for total loss of work capacity but to increase the normal discount for vicissitudes. I would do so on the basis of the first scenario in the Furzer Crestani report. The further progression posited in the second scenario is based upon assumptions of fact of which there is no evidence, and which I would not be prepared to infer from such evidence as there is of her pre-accident capacity. The award has been assessed with regard to ss12 & 13 of the Civil Liability Act. It should be discounted by 20% for vicissitudes.
115 Again, without conceding the appropriateness of any award for loss of work capacity and the amount specifically sought for past loss of income, counsel for the defendants did not challenge the figures upon which those claims are based. Nor did they direct any argument specifically to the claim for past loss of income, which should be assessed upon the basis set out in the Furzer Crestani report which is summarised at p 56 of the submissions. Of course, these assessments will need to be adjusted to take into account the period during which this judgment has been reserved. Claims are also made for loss of superannuation, a Fox v Wood component, and loss of long service leave entitlement. These are set out at p 57 of the submissions. Subject to the basis upon which I have allowed for future economic loss, these are uncontroversial.
Domestic assistance
116 This is dealt with in the submissions at pp 57-63, prepared with regard to s15 of the Civil Liability Act. I referred earlier to Ms Petrovic’s evidence, which I accept, of her difficulty in attending to a variety of household tasks. These have been attended to by members of the family, and I accept that it was also necessary for her to be driven to university and medical appointments. She estimated that the time spent on those services, including Ms Leal’s assistance to her in her university tasks, was about fifteen hours per week. At the time of the hearing she said that it was about ten or eleven hours per week.
117 This evidence was supported by a body of expert evidence relied on in her case. Dr Morgan considered that her condition restricted her capacity to do for herself the things she used to do, and that she would require domestic assistance for the rest of her life. Mr Borenstein expressed a similar view, as did Dr Jungfer. I received reports from two occupational therapists, Ms Jenny Phuong and Ms Julie Thornton, to the effect that an average of thirteen hours assistance per week from the day of the accident to the date of their assessment was required. Ms Danielle Robertson, of Dial an Angel, expressed the view in a report that ten hours per week would be required for the foreseeable future.
118 Counsel for Ms Petrovic sought twelve hours per week for past assistance and ten hours per week for assistance in the future. The amounts claimed are based upon rates set out in the Dial an Angel report. The defendants did not take issue with those rates but, of course, did not accept that any allowance under this head was appropriate. Submissions by counsel for the defendants were directed primarily to the claim for future assistance. They relied upon expert evidence in their case, particularly from Dr Brown, to the effect that assistance of that kind would be counterproductive, inhibiting the process whereby both plaintiffs might come to terms with their disabilities and get on with their lives.
119 There is no need to explore this aspect of the matter in any further detail. I accept that Ms Petrovic has required a measure of assistance in the past and will need assistance in the future. Nevertheless, this claim has troubled me. The need to arrive at an assessment which is reasonable, while falling short of the ideal, looms large. I would allow an award for gratuitous assistance based on eight hours per week in the past and five hours per week in the future. These amounts should be calculated by the method adopted in the submissions at pp 61-3.
120 Because of Ms Petrovic’s psychological symptoms, there is also a claim for a case manager. I am not satisfied that a case manager is called for, particularly given the regime of psychiatric and psychological care which is already in place. That claim is not reasonable and I reject it.
121 Mrs Ruzica Petrovic’s case can be dealt with somewhat more briefly than her daughter’s. I have already considered the evidence about the accident, the principal expert witnesses are the same and, as I have said, the psychological complaints of both women are similar.
Background
122 Mrs Petrovic was born in a small village in her native country on 30 March 1948. She was fifty-two years old at the time of the accident and is now fifty-nine. She is one of a large family and was educated until she was twelve years old. At the age of fifteen she married and she had her first child, Natalie’s older sister, when she was seventeen. She came to this country with her family in 1969, when she was twenty-one. At that time she could not speak English, and she still cannot write it.
123 Within two months of her arrival in Sydney, she obtained and maintained unskilled manual work until 1978, when Stjepan was born. Her husband was incapacitated following an accidental injury not long after the birth and, because they were in financial difficulty, she started work at Johnson & Johnson towards the end of 1978.
124 There she again undertook repetitive manual work. One of her fellow workers at the time, Ms Maritza Golac, gave evidence. Ms Golac described her as a hard and efficient worker, and a happy person who enjoyed the work. However, after a time she developed pain in the right forearm. She continued working because the family needed the money, but in late 1984 she could work no longer. Ms Golac said that she was obviously distressed at having to leave the job.
125 She made a Workers’ Compensation claim, which was contested, and she received an award for partial incapacity in late 1986. In August 1994 her employer filed an application for review, diminution or termination of her weekly payments, and in March 1995 the matter was settled by the payment of a lump sum of $50,000. It will be necessary to return to this litigation, and to her physical and mental state during a period of unemployment between 1984 and 1985.
126 In July 1995, a few months after the settlement, she commenced work at K-Mart. She said that she was anxious to put her problems behind her. The job was not physically demanding and her work increased from one day a week initially to four days a week by 2001. A fellow worker in the late 1990’s, who shares the name Debbie Reynolds with a celebrity of my youth, described her as a “very bubbly, … very helpful and friendly” workmate. The evidence of another co-worker, Robyn Cutler, was to the same effect.
127 Generally, her evidence was that in the period prior to the accident her life was fulfilled. Her family life was happy, and she was coping well with her employment and her household tasks. She enjoyed a number of hobbies and had a good social life. She played lawn bowls and did some exercise at a gymnasium. She described herself as “100 percent myself physically and mentally”. Apart from Ms Reynolds and Mrs Cutler, this general picture was confirmed by other witnesses to whose evidence I shall refer later.
The accident
128 It is unnecessary to repeat my general description of the accident and my findings about it when dealing with the case of Natalie Petrovic. Mrs Petrovic described the horses which escaped from the racecourse as “just like flying, not on the ground at all …”. She said that, when the horse landed on the roof of the car, there was a “sort of big noise crushing the car”. She said that the roof “just went right down”, that it hit her on the top of her head and “sort of squeezed me down into the chair and the roof came between me and my daughter”. It was leaning towards her right side and she could not see Natalie.
129 She also said, and I accept, that the horse’s legs penetrated the windscreen. Speaking of the horse, she added that every time “he tried to get out he couldn’t and his legs came back inside and his head hit the roof again and the roof came more closer to my face”. She described being struck on the top and the side of her head, on her shoulder, her chest, her legs, her stomach and her knee. I understand these blows to be caused partly by the impact of the roof and partly by the horse’s hooves.
130 Like Natalie, she said that the incident seemed to be “going on forever”, that initially both of them were screaming but that at some stage the screaming stopped. She thought that her daughter was dying.
Physical injuries
131 Ambulance officers placed Mrs Petrovic in a neck brace before taking her to the hospital. The brief hospital notes refer to injuries to the right side of her face and her left hand, and right deltoid bruising. She attended Dr Pang three days after the accident, and he noted “soft tissue bruises, lacerations and abrasions to multiple body sites”. These included her left hand, the right side of her face, her back, shoulders, right chest area and right thigh area. He referred her to Dr Kwong, whom she saw initially towards the end of March of that year and who continued to treat her. I shall turn to the injuries which she says have been enduring.
Headaches
132 From shortly after the accident she complained to Dr Pang of frequent headaches, as she did later to Dr Kwong. She said in evidence that her headaches were “constantly there”, and that they were made worse by “anxiety attacks”. Apart from the doctors, she complained about the headaches to a long standing friend who gave evidence, Ms Ruzica Juric.
Back
133 She said that she noticed that her back was “not right” very soon after the accident. She complained of lower back pain to Dr Pang, and she said that the pain became very bad when she sat for a long time. Dr Kwong gave evidence that a CT scan undertaken in November 2001 showed evidence of facet joint arthritis, which he described as “wear and tear arthritis in the back”. He went on to say that arthritis of that kind can become symptomatic following a compression injury by which the head is pushed down suddenly by an object from above, placing pressure on the spine. It is Mrs Petrovic’s case that her back pain was the result of pressure from the roof of the car during the accident.
Right hip
134 Dr Kwong also diagnosed right trochanteric bursitis, which he explained as an injury to the outside of the right hip.
Left ulnar nerve
135 Dr Kwong found left ulnar dysfunction attributable to traumatic injury to the left ulnar nerve at the elbow level. Objective evidence of this condition was found by a nerve conduction study conducted at a hospital in September 2001. He saw it as consistent with a blow or blows to the left arm from the hooves of the horse during the accident.
Right median nerve
136 The same nerve conduction study also revealed evidence of right carpal tunnel symptoms, which were indicative of an injury to the median nerve at the wrist level of the right arm. It was a repetitive strain injury to that arm which, as I have said, led to the termination of Mrs Petrovic’s employment with Johnson & Johnson in 1984. She said in evidence that immediately before the accident she had not been free of problems with that arm, although she had been able to work at K-Mart. She added, however, that she found it “much harder to cope” with her arm after the accident, that it did not revert to its pre-accident condition, and that she could not lift her arm “straight up in the air”. Dr Kwong attributed this injury also to the accident, and the history of her earlier work related condition did not cause him to change that opinion.
Shoulders
137 Dr Kwong diagnosed multiple soft tissue injuries and tendonitis over both shoulders. At his initial consultation of March 2001 he found that “impingement signs were positive in both directions”, that is, that there was a reduced range of movement attributable to injury to the bursa or soft tissue. She described a continuing sensation “like a burning pain and a heaviness” in her left shoulder. Injury to the right shoulder was noted, but it had improved over a period of months after the accident.
Right knee
138 She complained of injury to her right knee, but whether that injury was attributable to the accident is very much in contention. She returned to work at K-Mart in 2001, and there she injured her knee in a twisting accident in March 2002. Her knee gave way under her and she found that it continued to do so thereafter. She sought treatment for the condition from a physiotherapist, to whom she was referred by Dr Pang.
139 The defendants rely upon the fact that she does not appear to have mentioned any problem with the right knee to any of the practitioners who were treating her at a time proximate to the accident. There is no reference to it in a report of Dr Pang of January 2003, and he said in oral evidence that he could not recall her complaining of pain in the knee until after her fall at K-Mart. Nor is there any reference to such a complaint in the reports of Dr Kwong prior to 2002, and in a report of October in that year he referred to her having “also sustained a twisting injury of her right knee at work this year”.
140 On the other hand, Dr Kwong noted in a report of September 2001 that her right knee had a “small effusion”, although there was a good range of movement. As I understand his oral evidence, this followed her telling him that she had complained about right knee pain to a surgeon in Croatia during a visit to that country in May 2001. Dr Morgan’s notes of 31 January 2002 referred to her knees getting “swollen”, to her “standing up job”, and to a complaint that her knee “can give way” and that “this had been happening ever since the accident”. There is a reference to “knee pain” in Mr Borenstein’s notes of 23 January 2002.
141 In an employer’s report of injury form in respect of her, prepared by K-Mart on 23 January 2001, there is reference to “numbness right leg”. In a report of 11 April 2001 prepared for K-Mart’s insurer by Dr Govind, occupational physician, “right leg pain” is recorded. In a status report by CRS Australia of 4 June 2001 there is reference to soreness in her right leg. The same organisation provided progress reports after her return to work and one of those, dated 6 February 2002, noted that she had been experiencing “some right knee pain”.
142 Although Dr Pang could not recall her having complained of right knee pain before the twisting injury in 2002, he referred to a previous problem with the knee in a Workers’ Compensation medical certificate which he prepared in April 2002. In that document he recorded that she suffered right knee pain, having twisted her knee at work, but added that this was “related to previous knee problem”. It is Mrs Petrovic’s case that her knee was injured in the accident, and that it was this condition which led to her twisting injury at K-Mart. The joint effusion to which Dr Kwong referred in his report of September 2001 was confirmed by an MRI, which also disclosed degenerative changes.
143 Counsel for the defendants argued that her evidence about this aspect raises a matter bearing upon her credibility. In evidence-in-chief she said nothing about the twisting injury, although it does not appear that she was asked about it. In cross-examination (T 607.40) she said, in answer to a question about that injury, that she did not hurt her knee at K-Mart. However, in re-examination (T 751.5) she said that her knee was “very bad” when she returned to work at K-Mart, and that the twisting injury occurred because it was “giving up on her”.
144 Counsel submitted that her answers in re-examination were a change of heart, and that she had sought in her earlier evidence to suggest that her knee problem was the result of the accident rather than an unrelated injury sustained at work. Her motive, it was said, was to found a claim that her leaving work at K-Mart could be contributed to the accident. However, the answer she gave in cross-examination must be understood in its context and in the light of the fact that English is not her first language. By saying that she did not hurt her knee at K-Mart, I understand her to mean that the twisting injury was not the origin of her knee problem but, rather, was the result of a pre-existing condition.
Chronic Pain
145 Dr Kwong also diagnosed Mrs Petrovic, like her daughter, to be suffering from a chronic pain problem. For this, he said, she needs long term pain management. With her also, Dr Kwong said that there was an interplay between her physical problems and her psychiatric disorder.
Defendants’ case
146 In relation to Mrs Petrovic’s evidence about the injury to her right leg, right arm and back, the defendants rely upon the videotapes to which I have referred in which she is seen with her daughter, exhibits C and D. There are two further videotapes in which only she is depicted, exhibits E and G.
147 In exhibit C, showing them at the shopping centre in March 2005, she is seen to be walking with a stick, but apparently without difficulty. It was put to her in cross-examination that on occasions she was not putting any weight on the stick. She did not accept that, and it is not apparent to me when I view the video. She does appear to move her right arm freely.
148 In exhibit D, where they are seen in the foyer of a city building in April 2005, she is seated for an extended period of time. No discomfort is apparent, although most of the footage is focussed upon her daughter and the view of her is largely peripheral. Eventually, she is seen to get up from the chair and walk, using her stick. Again, she did not accept in cross-examination that she was not putting weight on the stick and, again, that is not apparent to me.
149 Exhibits E and G show her playing poker machines at a club near her home. Exhibit G is the earlier in time, consisting of two videotapes depicting her on 31 January and 13 February 2004. Exhibit E was filmed on 5 January 2005.
150 These videotapes depict her seated on a stool, playing poker machines, for lengthy periods of time. Again, she appears to move her right arm freely, and in the video of January 2004 she is seen to lift it to a level estimated by Associate Professor Jones to be fifteen to twenty degrees above the horizontal. In exhibit E she is seen arriving at the club on foot, walking with apparent ease and without her stick. The videotapes also depict her occasionally walking in the club, again without the stick.
151 Associate Professor Jones gave evidence that at his consultations with her, before and after January 2004, she did not lift her arm above the horizontal. Generally, he reported of the videotapes that they were “remarkable in the extent of her ability to sit at poker machines and to undertake various activities…”. He saw them as “quite amazing” in the light of the “litany of symptoms” which she had described to him.
152 Dr Harvey reported that he found “numerous inconsistencies” during his examination of her, indicating that many of her symptoms were “without organic basis”. It is unnecessary to recite those inconsistencies, which he set out at p10 of his report of 14 January 2004. In a report of August 2005, he wrote that that lack of organic basis was apparent from the videos, which demonstrated that she was “greatly exaggerating” the extent of her pain and disability when she saw him. In a final report of October 2005, he expressed the view that “continuing interventions for complaints that obviously are largely unrelated to organic disease is counterproductive and only encourages further illness behaviour”.
153 Dr Schutz reported in December 2004 that the symptoms she described were most likely due to age and degeneration and to “clearly evident non organic factors”. He expressed the same view in his final report of October 2005. He thought it likely that at most the accident caused “transient aggravations … in areas of degeneration in the neck and in the back”, and that any symptoms in those areas beyond three to six months after the accident should be considered to be due to “pre-existing degeneration”. He could not rule out the possibility of injury to the right arm and shoulder in the accident, but found no evidence of it. As to the right knee, he attributed her “currently reported symptoms” to “pre-existing degeneration and other pathology”.
Psychological injury
154 This is the major component of Mrs Petrovic’s claim, as it is of her daughter’s. Nevertheless, there is no need to dwell on it because the nature of the two claims is virtually identical. As with the evidence of physical injury, the conflict in the expert evidence is between the same groups of practitioners.
155 The same distress, sleeplessness, withdrawal and depression her daughter described is to be found in her evidence of her own condition, and in the observations of her son, her sister, Mrs Jurisic, and the friends of the family, Mrs Hopton, Mrs Briza and Mrs Pazin. All these witnesses commented upon the marked change in her from her disposition prior to the accident. The effect of the evidence of her K-Mart workmates, Ms Renolds and Mrs Cutler, was the same. When she returned to work towards the end of 2001, Mrs Cutler said that she was not the same person. Ms Renolds said, “It was Rosa’s body but it wasn’t Rosa.” Her relationship with her husband has been compromised.
156 Before the accident she used to share with her daughter a variety of household tasks, such as cleaning, washing and gardening, but she said that she could do them no longer and relied upon her husband and her son to attend to them. She used to enjoy cooking and she made a lot of dishes which involved pastry, but she said that she could no longer make pastry because of her problems with her hands. She also said that she came to feel unsafe being on her own, and needed company at home and when she ventured out, for example, to do shopping. I shall revisit these matters, together with the effect of her condition upon her work, when I turn to the question of damages.
157 In her case also, Dr Morgan diagnosed PTSD, depression and chronic pain disorder, and these diagnoses were supported by the evidence of Mr Borenstein, Dr Morris, Dr Jungfer and Dr Phillips. Dr Phillips also found intermittent panic disorder, but emphasised the need to view these various diagnoses in their totality. He said in oral evidence that “she has not only a major psychiatric problem, but she carries a very substantial burden in life because of this”.
158 She also has been treated over an extended period by Dr Morgan and Mr Borenstein. Both those experts expressed the view that her prognosis was poor and that, like her daughter, it was unlikely that she would ever recover. This outlook also was shared by the other three practitioners.
159 In answer to this evidence, the defendants rely again upon the reports and oral evidence of Dr Brown and Dr Roberts, and the reports of Dr Revai. Their evidence was to the same effect as that in relation to Ms Petrovic. Dr Brown accepted that she might have had PTSD “in the early days”, but considered that the symptoms she presented to him were exaggerated and raised the possibility of her malingering. Dr Revai made no psychiatric diagnosis and was sceptical about her “whole presentation”. He wondered if there was not “a conscious motivation on her part not to give up her symptoms until she has had her day in court”, and expressed the “feeling” that she may well improve when the case is finalised.
160 Dr Roberts found that her account of her symptoms met the criteria of PTSD and depression “at face value” but, in the light of the whole of the material available to her, had ”serious concerns” about her account. Part of the material to which Dr Roberts had regard was that relating to her work related injury in the 1980s and the ensuing Workers’ Compensation claim, to which I am about to turn. Dr Roberts shared the view of Dr Brown and Dr Revai that she was exaggerating her symptoms.
Workers’ Compensation claim
161 The defendants rely upon Mrs Petrovic’s Workers’ Compensation claim arising from her injury at Johnson & Johnson as a matter bearing significantly upon her credibility. This was the subject of a good deal of evidence, comprising cross-examination of her and the tender of a number of medical reports prepared for the purpose of that claim, and it was considered in some detail in final submissions of counsel for the defendants. I shall deal with it relatively briefly, but that is not to deny its importance.
162 Put shortly, what this material establishes is that between 1984 and 1995 she complained to a number of doctors and other health care professionals of a variety of debilitating symptoms, physical and psychological. Her physical complaints centred upon pain and numbness in her right arm, right shoulder, her neck and the right side of her face, but included headaches, palpitation and breathlessness. Her psychological symptoms included a depressed mood, irritability, anxiety, fatigue and insomnia. She also complained of various phobias, including of being alone at home at night time. Some of the doctors she saw in the mid- 1980’s considered her physical symptoms to be without organic basis and exaggerated, although a psychiatrist diagnosed her as suffering from endogenous depression.
163 As I have said, she was awarded weekly payments for partial incapacity towards the end of 1986. Over the ensuing years, she continued to have consultations with various health professionals, including two chiropractors and a physiotherapist. These continued until 1995, the year in which her employer’s application for review of her award, initiated in the previous year, was settled. She maintained the same complaints, including a tendency to drop things because of weakness in her right hand. Indeed, if anything, she suggested that her symptoms were worsening.
164 In September 1994, a physiotherapist reported that her condition was incurable and that there was no possibility of her returning to work “in her present situation”. In February 1995, a similar view was expressed by a chiropractor, who saw her work options as “very restricted”. In March of that year, the month in which the matter was settled, an orthopaedic surgeon found that there was a “psychogenic component” to her condition, but concluded that she was incapacitated for employment as a process worker and likely to remain so.
165 Yet four months later, in July 1995, she started work at K-Mart. The effect of this evidence, counsel for the defendants submitted, is that she presented to a number of doctors over a period of years with a constellation of symptoms, including physical complaints for which there was no organic basis, and managed to deceive some of them about her incapacity for work as late as March 1995. Moreover, it was said, the physical and emotional problems of which she had complained were not borne out by witnesses called in her case in the present proceedings.
166 Generally speaking, those witnesses did not disclose any knowledge of her disabilities over this period when giving evidence about her disposition prior to the accident. For example, none of them spoke of her tendency to drop things. Indeed, Natalie had no recollection of it. Her longstanding friend, Ms Juric had not seen it and was not aware of any “health issue” before the accident.
167 On the other hand, Mrs Pazin, also a friend of long standing, said that before the accident she was “like a little bit down”, adding that she had “some problem with the hand … for little while”. Mrs Pazin could not say when that was, except that it was a “long time”. Moreover, when she did return to work in July 1995, she eased herself back into it. Initially, she worked for only one day a week, and the job involved handling clothes and was not physically taxing. The effect of her evidence was that it was over a significant period that her hours of work increased and her tasks diversified.
168 Counsel for the defendant submitted that in the Workers’- Compensation proceedings she had deliberately exaggerated her symptoms for the purpose of financial gain, and that this was demonstrated by the fact that she resumed work (and, apparently, a normal life) soon after the proceedings were resolved. It was argued that she is approaching the present proceedings in the same way and that, no doubt, the problems of which she now complains will evaporate when the case is over. Her own counsel submitted that I would accept her symptoms as genuine, both in the Workers’ Compensation proceedings and in the present case, pointing to the fact that her return to work some months after the Workers’ Compensation claim was settled was, at best, tentative.
169 As in the case of her daughter, Mrs Petrovic’s credibility is of central importance. To that question, and to an assessment of the strength of her claim, I now turn.
Mrs Petrovic’s claim
170 I found Mrs Petrovic to be an emotional, and sometimes voluble, witness. Allowance must be made for the fact that her spoken English was adequate, but far from fluent. However, I did not find her an unsatisfactory witness and I do not believe that she was dishonest.
171 Her counsel acknowledged that the evidence in the present case and that relating to the Worker’s Compensation claim show that she has a propensity to develop a psychiatric disorder in conjunction with physical injury. Dr Morgan described her as a person who is “psychiatrically vulnerable”. I think that there has been a measure of exaggeration in her description of her present symptoms, as there was in her complaints arising from the injury at Johnson & Johnson. However, I do not think that it is marked and I certainly do not believe it to have been calculated. That is how I view the evidence about the Workers’ Compensation claim. It is also how I see the present case, including the videotaped material.
172 I am satisfied that for her, as for her daughter, the accident was a terrifying experience in which she feared for both their lives. I am also satisfied that it has caused her a major psychological injury, from which she may receive a measure of relief over time but from which she will never recover. For the reasons expressed when dealing with her daughter’s case, I prefer the expert evidence relied upon in her case to that produced in the defendants’ case. Again, I acknowledge the advantage enjoyed by the doctors and the psychologist who have been treating her over a long period.
173 I accept that the physical problems of which she complains are genuine and are fairly attributable to the accident. In so saying, I have given careful consideration to the evidence about the right knee and have concluded that it is sufficient to link that condition to the accident. That her symptoms may have a significant psychogenic component is, of course, not to the point. This is not to deny that, as I have said, I do not believe that they are as severe as her evidence would suggest. As far as her back is concerned, this is apparent from the videos, particularly those depicting her sitting for long periods at the club. Those videos also raise a question about the severity of the condition of her right leg, given that she is seen to walk without the aid of a stick, and possibly that of her right arm, although she is not seen to do anything strenuous with it.
174 In assessing damages, I have had regard to the measure of exaggeration I have found. However, I reject the defendants’ case, put against Mrs Petrovic as against her daughter, that she is malingering and that she is entitled to no more than a modest award of damages, reflecting a period of convalescence immediately after the accident and a limited period of past economic loss. This woman’s life has been gravely affected by the incident. Within her limitations, she has done her best to cope with its effects, as is demonstrated by her return to work in November 2001.
- Damages
175 Here again, counsel for Mrs Petrovic have supplied detailed written submissions, useful as a framework for my findings. In this case also it will be necessary for counsel to calculate precise figures under the various heads of damage in the light of those findings. The matters in contest are very similar to those agitated in Ms Petrovic’s claim, and I have again sought to determine what is reasonable in all the circumstances. As with the case of Ms Petrovic, the rates and costs which form the basis of claims for treatment expenses and economic loss are not at issue.
Treatment expenses
176 These are dealt with in the submissions of counsel for Mrs Petrovic at pp 22-8. No argument was directed by counsel for the defendants to the assessment of past treatment expenses, and they should be allowed upon the basis referred to at p 22 of the submissions.
177 The need for future treatment is challenged on much the same basis as it was in Ms Petrovic’s case. However, I am satisfied that an allowance for that treatment is appropriate. Dr Morgan recommended psychiatric review over the next three to five years, with monthly consultation for the first two years and three monthly consultations thereafter. With the general support of Mr Borenstein, he also recommended a further twenty to thirty psychological consultations. Mr Borenstein thought, however, that the process of reducing psychological visits would be a long-term one, spanning many years.
178 Allowance is sought for those projected consultations, psychiatric and psychological, together with a buffer in each case of $10,000 against the possibility that continued treatment might be required. The result is a total claim in the order of $30,000. That is not a large amount, but I think that it is more than is called for. I would allow a lump sum for psychiatric and psychological treatment of $20,000.
179 There is also a claim for continued treatment by Dr Pang and Dr Kwong, together with treatment for chronic pain, physiotherapy and osteotherapy. These claims are based upon the assumption that the treatment and medication will be required for the rest of Mrs Petrovic’s life. Like her daughter, I accept that this treatment and medication will be of benefit to her for some time but consider that the claims made are excessive. The claims for treatment total almost $128,000 and for medication a figure in excess of $35,000.
180 Here again, I think it appropriate to award lump sums as a buffer. For the treatment I would allow $65,000 and for the medication $20,000. In her case also, there is a claim in excess of $22,000 for the expenses of travelling to appointments with doctors and other health professionals. I would allow $10,000.
- Economic loss
181 This is considered in the submissions at pp28-34. Having commenced work at K-Mart in 1995, Mrs Petrovic gradually increased her working time to twenty-eight hours per week by the time of the accident. At that stage her task was to stand at the door of the store, greeting customers as they arrived. When she returned to work after the accident, in November 2001, she gradually increased her hours and varied her tasks. However, she found that she could not sustain a position as a “greeter” or at the check-out, because she found the work stressful, she lacked confidence and she could not cope with the continuing parade of customers. She ceased work in July 2002.
182 Insofar as part of her problem was an inability to stand for periods of time because of the condition of her right knee, I am satisfied for the reasons I have expressed that that condition is attributable to the accident. Similarly, I am satisfied on the medical evidence that her emotional distress at work was associated with the psychological condition which the accident visited upon her. In her case also, the opinion of Dr Kwong, Dr Morgan, Dr Jungfer and Dr Morris was that she is unlikely to become fit for any occupation. Given her age, her limited education and her lack of skills, I accept that that is so.
183 Again, counsel for the defendants directed no argument specifically to the claim for past loss of earnings, which should be assessed by the methods set out in the Furzer Crestani report admitted in her case. That approach is summarised at p 31 of the submissions.
184 Subject to the discount for vicissitudes, I would assess her future economic loss also in accordance with the Furzer Crestani report, the effect of which is summarised at pp 32-3 of the submissions. However, given that a relatively limited period of future loss is involved, her counsel submitted that the discount for vicissitudes should be only 5%. Counsel for the defendants, on the other hand, submitted that the discount should be significantly in excess of the conventional 15%. For this, Mr Sexton, in oral submissions, returned to the evidence about the Workers’ Compensation claim and put an alternative submission based upon it. He argued that, assuming that the symptoms she described in association with her claim were genuine, her return to work in July 1995 demonstrates a capacity on her part to recover from symptoms of that kind in a very short period of time. For the reasons I have given, I do not accept that submission either. Equally, however, I am not prepared to reduce the discount for vicissitudes to 5%. The conventional discount of 15% should be applied.
185 Again, there are claims for loss of superannuation and long-service leave entitlement, together with a Fox v Wood component. They are summarised at pp 33-4 of the submissions and are also uncontroversial.
Domestic assistance and care
186 This is dealt with at pp 34-45 of the submissions. I have earlier referred to Mrs Petrovic’s difficulties since the accident with a number of household tasks and to her evidence, which I accept, that she relied upon her husband and her son to do them. This was confirmed by a number of witnesses, including her son and her sister (Mrs Jurisic). Mrs Jurisic gave evidence that she also helped with the household duties. Dr Morgan gave evidence that her difficulty with these tasks was consistent with her condition, an opinion shared by Dr Kwong, Mr Borenstein and Dr Jungfer.
187 The effect of the evidence is that she has required domestic assistance since the accident for at least ten hours per week, and it is that figure which is the basis of her claim under this head, past and future. I accept that there has been a need in the past and that it will continue. However, for the reasons which I expressed when dealing with such a claim in her daughter’s case, I am troubled by the extent of the claim and consider that it must be moderated to achieve a result which is reasonable. I see no reason to depart from the allowance in her daughter’s case, that is, eight hours per week for the past and five hours a week for the future.
188 There is also a claim for companion care arising from her fear, to which I have also referred, of being alone. Again, that is confirmed by the evidence of other witnesses, including her son. That fear, and the desirability of her being accompanied at relevant times, also finds support in the evidence of Dr Morgan, Mr Borenstein, Dr Morris and Dr Jungfer. The effect of that evidence is that she would require companion care of about twenty hours per week, taking into account the variety of circumstances, at home and outside it, when she might need to be accompanied.
189 The resulting claim, based upon rates in the Dial an Angel report admitted in her case, is in excess of $400,000. A claim of that order simply cannot be sustained. Counsel for the defendants pointed out that expert evidence about it emerged only orally, it not having been the subject of any comment in any of those practitioners’ reports. This appears to me to be very much a claim for the ideal rather than the reasonable. I have considered carefully whether a modest amount should be allowed under this head, but have concluded that it should be rejected.
190 In her case also, there is a claim for a case manager. For the same reasons I gave in her daughter’s case, it is rejected.
Non economic loss
191 This is the last matter dealt with in the submissions, at p 45. Counsel for Mrs Petrovic contended that non economic loss should be assessed at 60% of a most extreme case. Without resiling from my finding that the accident has seriously affected that unfortunate woman’s life, that is more than could be justified. I would allow 45%.
ConcIusion
192 I request the parties to bring in short minutes giving effect to my findings in each case. Counsel should feel free to inform me if in assessing damages I have made any technical error or have failed to deal with any relevant matter. If necessary, I shall hear the parties on costs.
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