Polo v The Nominal Defendant

[2019] NSWDC 53

District Court

New South Wales

Medium Neutral Citation:	Polo v The Nominal Defendant [2019] NSWDC 53
Hearing dates:	6-8 February 2019; 11 February 2019
Date of orders:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff the sum of $100,320.18. (3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (4) Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) as above. (5) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – extent of plaintiff's injuries and restrictions – future out-of-pocket expenses – need for future commercial care in dispute
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Bale v Mills [2011] NSWCA 226 at [63]; (2011) 81 NSWLR 498 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 Smith v Alone [2017] NSWCA 287 Sretenovic v Reed [2009] NSWCA 280 White v Benjamin [2015] NSWCA 75 Zhang v Zayati [2018] NSWDC 385
Category:	Principal judgment
Parties:	Rosa Polo (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: R Di Michiel (Plaintiff) A Renshaw (Defendant)   Solicitors: Premier Law (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2018/00057560

Judgment

1. These proceedings relate to alleged injuries suffered by the plaintiff in a motor vehicle accident which occurred on 20 December 2014. At that time, the plaintiff was a passenger in a motor car driven by her adult daughter. A motorcycle travelled onto the wrong side of the road at high speed and struck the vehicle in which the plaintiff was sitting. The motorcycle was unregistered and uninsured at the time and accordingly the Nominal Defendant is the proper defendant in the proceedings. Liability is not in issue.

2. The proceedings therefore involve an assessment of the damages to which the plaintiff is entitled for the admitted breach of the duty of care. These are claimed by the plaintiff under the Motor Accidents Compensation Act 1999 (NSW) (“MACA"). The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of MACA. The plaintiff's claim is for:

1. Past out-of-pocket expenses;

2. Future out-of-pocket expenses;

3. Past economic loss;

4. Loss of future earning capacity and future superannuation loss; and

5. A claim for future assistance on the basis of paid commercial care.

3. As is common in these cases, there is a substantial dispute between the parties as to the amount of damages to which the plaintiff is entitled. This turns on the extent of the plaintiff's injuries, if any, suffered in the accident and any ongoing pain and restrictions.

The pleadings

4. The plaintiff relies on an Amended Statement of Claim filed on 21 March 2018. It is pleaded that on 20 December 2014 at approximately 9:20pm, the vehicle in which the plaintiff was a passenger was proceeding along Cartwright Avenue Busby in Sydney. It is alleged that during the journey, an uninsured vehicle travelling in the opposite direction, being a motorcycle, entered the lane in which the plaintiff's vehicle was travelling, resulting in a front on collision. It is alleged that the plaintiff suffered injury, loss and damages as result of the collision as set out in her Statement of Particulars.

5. The Statement of Particulars alleges that the plaintiff has suffered injuries to the lumbar spine, cervical spine, right shoulder, left wrist, chest, right arm, right leg and psychiatric/psychological sequelae.

6. It seems from the evidence that the main continuing pain and restrictions relied upon by the plaintiff relate to the alleged injuries to the lumbar spine, cervical spine and right shoulder. The plaintiff did not tender any specialist reports from a psychiatrist. Although there are references in the materials in Exhibit A to the plaintiff suffering from post-traumatic stress disorder, the plaintiff stated through her counsel that she was not relying on these materials to establish post-traumatic stress disorder or any other psychological injury.

7. Very extensive particulars of continuing disabilities are set out in the Statement of Particulars including pain in the lower back, neck, right shoulder and left wrist.

8. In the Defence filed by the defendant on 27 March 2018, a breach of duty of care is admitted but the defendant does not admit the plaintiff's allegations as to the extent of the injury, loss and damage alleged in the Statement of Particulars.

General matters established on the evidence

9. The evidence established the following general matters:

1. The plaintiff was born in Peru in South America in October 1969;

2. In 2000 she moved to Spain and worked as a cleaner/childminder;

3. In 2006 the plaintiff moved to Australia;

4. The plaintiff’s four children live in Australia;

5. On 10 September 2009, the plaintiff commenced as a patient at the Ingleburn Medical Centre at Ingleburn in Sydney;

6. On 14 October 2013, the plaintiff commenced part-time employment at Star Linen as a person who undertook industrial ironing;

7. The accident in relation to which the proceedings are brought occurred on 20 December 2014;

8. On 20 December 2014, the plaintiff and her two daughters who were in the vehicle at the time of the accident were transported by the plaintiff’s adult son to Liverpool Hospital for treatment and the plaintiff was discharged early the following morning;

9. On 7 January 2015, the plaintiff first attended for medical advice and treatment at the Ingleburn Medical Centre following the accident;

10. In February 2015, the plaintiff commenced employment as a cleaner at Best Western The Haven Hotel in Glebe in Sydney;

11. In May 2015, the plaintiff commenced taking the medicine Lyrica which is for the purposes of dealing with pain and is a prescription medicine;

12. In May 2015, the plaintiff commenced physiotherapy treatment with the physiotherapist at Ingleburn Medical Centre;

13. At the time of the accident, the plaintiff was separated from her partner who was the father of her four children. Subsequently, the plaintiff married her current husband, Mr Norman Bereche, who travelled to Australia from Peru. The marriage occurred in December 2016;

14. In December 2016, the plaintiff was examined by MAS Assessor, Dr Truskett in relation to alleged injuries to the lumbar spine, cervical spine, right shoulder and left wrist;

15. Recently, the plaintiff has commenced further physiotherapy treatment.

The evidence for the plaintiff

The plaintiff's oral evidence.

10. The plaintiff gave extensive oral evidence in the proceedings.

11. The plaintiff stated that she was born in October 1969 in Lima in Peru and was educated in Peru to the equivalent level to Year 12. After she finished school, she commenced certain studies which she did not finish as she became pregnant with her first child. Ms Polo gave evidence that she had four children to the father of her first child and that the relationship ended in 1999.

12. Ms Polo gave evidence that she left Peru in 2000 to go to Spain where she worked completing cleaning and child minding duties. The plaintiff gave evidence that she came to Australia in 2006 from Spain. She stated that she had worked full or part-time in Spain for six years and had no difficulties completing her work during that time.

13. The plaintiff gave evidence that she did not obtain employment on first coming to Australia in 2006 other than cooking at home and selling the food. The plaintiff said that her fourth child, Jasmine, was born in 2007.

14. The plaintiff gave evidence that she was granted a permanent residency visa in 2009 and from that time was entitled to claim for medical treatment on Medicare. From 2009, she attended as a patient at the Ingleburn Medical Centre in Sydney.

15. The plaintiff gave evidence that she started to receive a New Start Allowance from Centrelink when she obtained permanent residency in 2009. In 2013, the plaintiff stated that she obtained employment through Centrelink at a job undertaking commercial laundry work at an employer called Star Linen. This job was undertaken during school hours so that she could do the work while her children were at school. In this role the plaintiff undertook ironing using a machine. The plaintiff stated that she worked for 20 hours per week. The plaintiff said that this was the maximum amount of work available as she was employed on an informal basis. The plaintiff said that she asked for more than 20 hours work when her younger daughter was older but was told that there were no more hours available. The plaintiff said that she did not suffer from pain or discomfort in the job when she started it. The plaintiff said she had a good relationship with the management at Star Linen who were impressed with her work.

16. The plaintiff gave evidence in relation to the motor car accident the subject of the proceedings, which occurred on 20 December 2014. The plaintiff said that she was a front seat passenger in a vehicle being driven by her elder daughter. She said that they were almost home when her daughter told her to look at a man who was travelling on a motorcycle very fast. Just as the plaintiff was beginning to turn to look, the motorcycle hit the vehicle in which the plaintiff was travelling and went underneath the car. The plaintiff said that her airbag was inflated and she thought she had died as “everything went white”: T18.32. The plaintiff said that she could not open her car door and got out of the driver’s side door.

17. The plaintiff said that the car was not driven again and that her elder daughter had called the police, the fire service and the ambulance. The plaintiff said that she was not taken anywhere by the ambulance and one of her adult sons later took her and her two daughters to Liverpool Hospital.

18. The plaintiff gave evidence that at the time, the only pain she was experiencing was in the back but that she had had a “huge fright”: T19.23. The plaintiff said that she was in the hospital for about three hours. The medical advice given to her was to take Panadol if the pain got worse.

19. The plaintiff gave evidence that after her discharge from hospital on 21 December 2014 she began to experience pain in her right shoulder and her neck as well as her back: T20.11. She said that she did not return to work on 21 December 2014 but asked for a week off work and rested. She said she was not paid for this week.

20. The plaintiff said that her pain got worse in January 2015 and she began to take more painkillers. The plaintiff said that her neck and right shoulder pain commenced on 6 or 7 January 2015: T20.28.

21. The plaintiff stated that on 7 January 2015 she consulted with a doctor at the Ingleburn Medical Centre in relation to her pain, as she found the pain unbearable and she was taking a lot of Panadol: T21.1. She said that she delayed going to the doctor from 21 December 2014 to 7 January 2015 for treatment as she was taking Panadol and could bear the pain, but went when the pain became worse.

22. The plaintiff said that she started suffering from some psychological symptoms or feelings after the accident when she was a passenger in the car when her children were driving. She said she felt that they were going to crash and that she had a fear of crashing and was telling them to slow down. She said that this fear began even when she was in the car with her son being driven to hospital on 20 December 2014. She denied any other psychological symptoms other than having a fear when she heard the sound of a motorcycle as she thought there could be an accident. She said that she was more stressed since the accident: T22.23.

23. The plaintiff stated that since 2015 she had also taken Lyrica as well as Panadol. She said she had not taken Lyrica for any pain prior to 20 December 2014. The plaintiff said that she was still taking Lyrica but was very careful with it because it caused other symptoms. She said she was also taking Ibuprofen as well as Panadeine Forte. In relation to Panadeine Forte, the plaintiff said that the doctor had prescribed it twice but that she had heart palpitations when she took it. The plaintiff said that she did not know the cost of the Lyrica as her husband bought it. She said she only took Lyrica when she had strong pain and that a box of Lyrica lasted her between 15 and 20 days and a month.

24. In relation to Panadol, she said either her husband or her daughter bought it for her and although she was not sure, she thought that it lasted about 20 days. She did not know the cost of the Panadol.

25. In relation to the Ibuprofen, the plaintiff said that she swapped it with Panadol and that a box of it lasted her between a month and six weeks. She said she was not sure of the cost of it but thought it was around $18 for the box: T23.33.

26. The plaintiff said that in 2015 after the motor vehicle accident she began seeing a physiotherapist at her general practitioner’s surgery and she regarded the physiotherapy as being of minimal benefit. She said that she had recently undertaken further physiotherapy with Rehab HQ. This was because of problems with her back and neck. She thought the more recent physiotherapy had been of assistance and she went once per week which cost her between $80 and $90 depending on the time. The plaintiff said that she also believed she had acupuncture.

27. The plaintiff gave evidence that after the accident when she returned to work at Star Linen, she suffered pain and discomfort in her back, neck and right shoulder. She stated that her duties at Star Linen required her to use both arms standing up and to feed the linen into the machine to iron it. The plaintiff stated that she stopped work at Star Linen in early 2015 as she was offered a job at the Best Western The Haven Hotel at Glebe in Sydney. The plaintiff said that she kept working at Star Linen in early 2015 despite her pain as she needed to earn money and had to work to get paid. The plaintiff confirmed that she ceased working at Star Linen on about 16 February 2015. In relation to her job at The Haven Hotel, the plaintiff said that she obtained the job through contacts at Star Linen. Initially she assisted with the starting up of the hotel which had been recently renovated. Then she undertook housekeeping duties which involved cleaning the rooms, checking on them and ensuring that everything in the rooms was correct and working: T26. She said that there were about eight people doing the housekeeping and she could obtain help if something heavy needed to be lifted.

28. The plaintiff said that she felt pain and discomfort in completing her duties at the hotel but the job was desirable as the hotel paid her tax and superannuation. The plaintiff said that she was paid $15-$16 per hour at Star Linen and $23-$24 per hour at The Haven Hotel in Glebe: T26.50. The plaintiff also said that more hours of work were on offer at the hotel.

29. The plaintiff stated that in performing her duties at The Haven, her pain and discomfort included when lifting her right arm and that she was only able to lift her arm directly in front of her with the palm facing out. She said she also suffered pain when she stood up for a long time in performing her duties. On occasion, she was able to sit down and relax to relieve the pain.

30. The plaintiff said the duties which led to her feeling pain and discomfort included vacuuming. She told this to the manager at the hotel and the manager asked for another employee to do the vacuuming. At that time, the vacuum cleaner was carried on the employee's back but now there was a new and lighter vacuuming machine. The plaintiff said that she asked other colleagues to undertake the vacuuming for her and they did this as they each helped each other with duties as required: T28.15. The plaintiff said that the managers at the hotel carried the heavy linen bags.

31. The plaintiff expressed the opinion that if she was not given help to do heavier duties such as vacuuming, she would not be able to finish the work required for her job: T28.34.

32. The plaintiff gave evidence that in 2015 she formed a relationship with her current husband Norman Bereche (“Norman”) who she had known since childhood. He was living in Peru at the time and he moved to Australia in July 2016 and moved in with the plaintiff at her home at Glenfield.

33. Initially, Norman came to her job at The Haven Hotel in Glebe and assisted her with heavier duties without being paid such as vacuuming, making the beds and lifting. After three weeks, Norman was offered employment and he started work at the hotel.

34. The plaintiff gave evidence that her husband helps her at work including in making the beds and vacuuming. She expressed the view that if her husband Norman did not assist her that she would not be able to complete her duties at the hotel as it has been a while since she was able to undertake the heavier duties. The plaintiff confirmed that she did not have any difficulties undertaking similar duties when she lived in Spain.

35. The plaintiff indicated that she started working 37 hours a week at the beginning of 2016 before Norman started assisting her with her work. At this time she was getting assistance in performing heavier duties such as vacuuming from her friends with whom she worked.

36. The plaintiff said that she still worked 37 hours per week full-time at the hotel in 2017 but noted that she started suffering more pain and had a decrease in her strength. The plaintiff gave evidence that in December 2017 the pain had increased in her back and hands and that she had used all her sick leave so she took three weeks leave without pay.

37. The plaintiff gave evidence that in December 2017 she was referred to a spinal surgeon at Campbelltown, Dr Darwish. This was because of the pain which she had and because she wanted to stop taking painkillers. At that time she said that the pain was in her neck, back, right shoulder and arm. The plaintiff said that she saw Dr Darwish only once and that he asked her to see him again but she did not as he was too expensive. She said that she would go to see Dr Darwish again if she had the money to do so.

38. The plaintiff gave evidence that after her three weeks of leave without pay in December 2017 that she returned to work at the job at The Haven Hotel full-time working 37 hours per week but her “rhythm” was not the same: T36.31. She said that she continued working 37 hours per week until July 2018 when she moved to casual part-time work, working 20 hours per week which she continued to do at present.

39. The plaintiff said that she changed to 20 hours per week because of her back pain, shoulder pain and neck pain and the increased tablets she needed to take to deal with it. She said she took Lyrica if the pain was excessive.

40. Prior to the accident, the plaintiff said that she had not really thought when she would retire but she thought she would always work, especially at The Haven Hotel which she regarded as a great job. She also noted that she had a younger daughter to look after and wanted at some stage to buy a house. However, the plaintiff said that she had pain and she continued to work part-time despite the pain. She said that the back pain was, in particular, the focus of her problem.

41. In her evidence in chief the plaintiff said that she did the domestic duties at her home prior to the accident: T47.12. The plaintiff said that she undertook all household tasks including washing, ironing, cooking, washing windows, cleaning, vacuuming, sweeping, mopping, changing the beds, cleaning the bathroom and toilet, gardening including lawn mowing and shopping. Although the plaintiff said that sometimes her children helped in relation to spring cleaning, she said she undertook the other tasks. The plaintiff denied that her sons helped her with the lawns: T48.13. She said that she loved gardening and did the lawn mowing in the front and the back yards. The plaintiff said that in relation to domestic duties, prior to the accident no one assisted her as she was fairly particular: T49.20.

10. In relation to the position after the accident, the plaintiff said she had difficulties completing domestic duties at home and that these required a big effort from her. She said she had difficulties with most domestic tasks after the accident including vacuuming, sweeping, mopping, cleaning the bathroom and toilet, changing the bed linen, laundry, shopping and gardening. She also had problems with spring cleaning and window washing. The plaintiff put her problems down to the pains which she had, those pains being in the back, neck, and shoulder when she lifted her arm. She denied having pains in those areas prior to the accident: T50.34. The plaintiff said that after the accident she undertook domestic duties with a lot of effort and her children started to help her.

11. The plaintiff gave evidence that her husband, Norman, now undertook all domestic duties in the house: T50.43; T51.1. When asked how long her husband Norman spent undertaking the domestic duties now, the plaintiff said approximately three hours per week “more or less”: T52.3-.18. It is noted that there is no claim by the plaintiff for future gratuitous attendant care services. The plaintiff said that if she had not received her injuries in the accident she would have continued completing the domestic duties in the house. She stated that if she was now provided with the money to do so, she would employ someone to do them: T52.27.

12. The plaintiff confirmed that she had always told the truth to the doctors at the Ingleburn Medical Centre and to the medicolegal doctors whom she had seen. She confirmed that she now had pain in her back, neck and right shoulder and wanted to continue receiving medical treatment in relation to her injuries: T52.37-.48. She agreed that she wished to have treating occupational therapy consultations as recommended by Ms Goron in her 2018 report and also wished to have the specialised equipment which Ms Goron recommended in her report: see Exhibit A pages 98-99.

13. The plaintiff said she was now working 20 hours per week at The Haven Hotel and did not believe that she could return to 37 hours per week because of her pain in her back, neck and shoulder: T53.36-.50. She also did not believe that she could return to work at 37 hours per week in the future as the pain has become worse over time since the accident.

14. The plaintiff stated that she intended to work until normal retirement age prior to the accident which she regarded as 70 years of age but did not think she could now work until that age.

15. The plaintiff was subject to extensive cross-examination. She confirmed to counsel for the defendant that prior to the accident she did all the housework in her house and had no assistance from anyone including her children who were studying: T55.1-.16. This evidence should be compared with paragraph 4.3 of the report of the plaintiff’s occupational therapist, Ms Shearer, who states that prior to the accident the plaintiff was independent with personal care tasks and shared domestic tasks with her family: Exhibit A page 44.

16. The plaintiff confirmed in cross-examination that after the accident she stopped undertaking various household tasks because of her pain including vacuuming (which was stopped immediately after the accident), cleaning the bathrooms and making the beds: T55. The plaintiff confirmed her evidence at T26.15-.30 as to her limited duties in her current job. She confirmed that she did not undertake vacuuming in the rooms at the hotel or the cleaning of the bathrooms or changing the beds. This evidence should be compared to the plaintiff's statement signed by her dated 31 July 2017 which became Exhibit 2 which provides:

“28. My job includes vacuuming and tidying up rooms as well as making beds and cleaning bathrooms. After cleaning each room, before I start the next one, I have to sit down and rest my back and neck as they start to ache.

29. Whenever I do any activity where I have to use my hands and arms, this seems to cause pain in my back.

30. I am fortunate enough to have a sympathetic boss who allows my co-worker husband to assist me with my tasks. Often I have to have days off due to aggravations and pain, which my employer luckily allows me to do.”

49. The plaintiff confirmed that she had no records of her employment at Star Linen laundry, as she was not given any. This included payslips. The plaintiff could not confirm that she earned $300 or $328 per week but said that she was paid between $15 and $16 per hour for 20 hours work: T60.21.

50. When it was put to her that there are no records showing that she took time off after the accident, the plaintiff said that if she wanted to take time off she merely called in. The plaintiff later confirmed that she had one week off after the accident although she had no records.

51. The plaintiff was then asked questions about her injuries in the accident. She confirmed that after the accident she had a sore chest and sore right arm as well as her other injuries: T60. She said that her sore right arm had healed but her shoulder still hurt. When taken to her 31 July 2017 statement, the plaintiff said that the only job she had was looking at the rooms to see if they were alright: T62.45. She later added that she did some dusting.

52. The plaintiff was asked numerous questions about seeing a solicitor and her initial medical appointments. She had a poor recollection of the detail of these. Exhibit 3, the plaintiff's personal injury claim form, shows that the plaintiff saw her solicitors on 27 December 2014, a week after the accident: at page 17. The plaintiff had difficulty remembering that she saw her solicitors prior to seeing her medical practitioner. She said she saw a doctor in the first days of January: T63.5. The records in evidence show that the plaintiff first attended the Ingleburn Medical Centre on 7 January 2015: Exhibit A page 140.

53. The plaintiff was taken to the answer to question 25 in the Claim Form where she confirmed that her injuries from the accident were to her back, neck and chest: Exhibit 3 page 13. Despite this, the plaintiff confirmed that she also injured her right shoulder which she said she could not move normally: T65.5. The plaintiff said that she could not remember the document with that entry: T65.18.

54. The plaintiff was taken to the entry in Exhibit 3 where it states that she had “some time off” work without providing any details. The plaintiff confirmed again that she had one week off work: T66.29.

55. When cross-examined in relation to the entries in the consultation notes and what she told the doctors, the plaintiff confirmed that she complained to them about her back, neck and shoulder.

56. The plaintiff also confirmed that she had a problem with her left wrist prior to the accident and that she had suffered from pain in her left wrist in September 2014. She said she no longer had pain in her left wrist as this had healed: T70.20. She denied having pain in her right wrist. This should be compared to the report of Mr Buddle, rehabilitation counsellor, dated 17 August 2015 which referred to the plaintiff claiming pain and limitation in her right wrist and lower back: Exhibit A page 36.

57. The plaintiff was extensively cross-examined by counsel for the defendant about whether she in fact did all the domestic duties prior to the accident. It was put to her that she did not do all the domestic duties prior to the accident and that she shared some with her family. Initially the plaintiff denied this: T70.41; T71.11. Later she corrected this evidence and said that her sons sometimes helped her with lawn mowing prior to the accident although she did it mostly: T71.19. The plaintiff was then taken to the first report of Dr McGroder dated 18 November 2018 in which he states as follows:

“She did not take any time off work doing this as a result of the accident. She kept working till she obtained another job at the Heaven [Haven] hotel in Glebe as a housekeeper. This was in January 2015. Her work involves cleaning a different number of rooms each day and involves dusting, making beds, cleaning toilets and bathrooms, vacuuming, sweeping, dusting and looking after the rubbish. She said that someone helps her carry the vacuum pack. She has not lost any time off work as result of the accident. The hotel is not aware that she was involved in an accident": Exhibit 1 Tab 1.

58. The plaintiff confirmed that she did take a week off after the accident. Initially the plaintiff appeared to agree that she did undertake housekeeping tasks in her job because it was such a good job: T74.41. Later she said that housekeeping staff did the cleaning tasks and she did not: T74.48.

59. The plaintiff was then cross-examined about the development of pain in her body after the accident. She said that after the accident and before going to Liverpool Hospital she only felt slight pain in the back as she was worried about her daughter. Following her discharge on 21 December 2014, the plaintiff said she suffered pain in her back, neck and shoulder and had been given Panadol whilst in hospital.

60. The plaintiff was asked whether she had good progress in her injuries from June 2015 until October 2015. The plaintiff said that the pain had reduced somewhat as she was taking Lyrica at the time.

61. The plaintiff was asked questions about the contents of the 12 July 2016 entry of her general practitioner in the notes which referred to the plaintiff experiencing pain in her left arm and left leg and that her left arm “cannot carry”: Exhibit A page 131. The plaintiff said that this was incorrect and the problems she was experiencing were in her right arm and shoulder. When the plaintiff was asked about whether she had pain in her knees, she denied it and said that she had a “little lump” in her knees: T78.7. However, an entry for 18 August 2017 by her general practitioner refers to pain in her knee joints and the plaintiff was referred for an x-ray: Exhibit A pages 126.

62. It was then put to the plaintiff that she virtually never complained of pain in her right shoulder to her doctor and particularly that there had been no complaints in the last six months. The plaintiff denied this and said that she complained in relation to pain in her neck, back and shoulder but that the doctors concentrated on the pain in her neck.

63. The plaintiff was asked about reducing her hours in 2018 to 20 hours per week. The plaintiff said this was as a result of a recommendation by her physiotherapist who said that she was doing too much work. The plaintiff said that at the time, the work involved a lot of standing up and she was finishing her work being very tired.

64. It was put to the plaintiff that her work which she completed as a housekeeper was the same as the domestic duties that she did in her house.

65. The plaintiff confirmed that she did the domestic duties prior to the accident and that she did some domestic duties after the accident at work but it never involved heavy things and that her tasks involved mainly dusting.

66. In re-examination, Ms Polo confirmed that occupational therapist Ms Goron attended her property at Glenfield in June 2018 and that she (the plaintiff) still lives there.

67. In the course of oral submissions, counsel for the plaintiff raised a point that an apparent arguable inconsistency between the plaintiff's oral evidence and paragraphs 26 to 30 of Exhibit 2, being the plaintiff's statement, was not put to the plaintiff in cross-examination. The arguable difference seemed to be that the plaintiff in her oral evidence said in her work as a cleaner she only undertook light duties, including dusting and checking whether items needed to be cleaned or fixed in the rooms, and did not undertake heavy duties such as the cleaning of the bathrooms, changing beds and vacuuming. On one view, paragraphs 26-30 of the plaintiff's statement dated 31 July 2017 seem to indicate that she does undertake such tasks.

68. In the light of that submission, I was concerned that as a matter of fairness the alleged inconsistency had not been directly put to the plaintiff in cross-examination. In my view, I had an independent duty as the trial judge to ensure that there was fairness in the trial to the plaintiff and that such matters were properly put to the plaintiff to give her a proper opportunity to comment on them: see Bale v Mills [2011] NSWCA 226 at [63]; (2011) 81 NSWLR 498. As a consequence, the plaintiff was recalled and I asked her a number of questions in relation to this issue, having first had paragraphs 26 to 30 of her statement translated to her by the Spanish interpreter. When the plaintiff was asked to comment on the arguable inconsistency between her oral evidence and paragraphs 26-30 of her statement, the plaintiff said that her job as a housekeeper was supposed to involve vacuuming, cleaning of the bathrooms and toilets and changing of the linen and other such duties but her husband helped her with her duties. The plaintiff denied doing vacuuming and cleaning and said that her role was limited to checking items that needed to be replaced and dusting: T113.18. I was satisfied, after giving the plaintiff an opportunity to comment on these paragraphs of her statement, that fairness had been provided to the plaintiff on the issue. I specifically enquired of Counsel for the plaintiff and he did not make any further application. He agreed that there was no unfairness to the plaintiff on this issue: see T114.32.

Evidence of Mr Bereche

69. Oral evidence was given by Mr Norman Bereche Rios. Mr Bereche is the plaintiff's husband. Mr Bereche gave evidence that he was born in April 1966 in Peru and had known the plaintiff since he was a child. He confirmed that he had been a friend of the plaintiff since childhood.

70. Mr Bereche gave evidence that he arrived in Australia in July 2016 and this was the first time he had seen the plaintiff since she was involved in the motor vehicle accident on 20 December 2014: T98.15.

71. Mr Bereche gave evidence that since the accident he had purchased Panadol for the plaintiff on a weekly basis at a cost of $15 (I assume for a box). The size of the quantity in each purchase was not made clear.

72. A statement of Mr Bereche dated 31 July 2017 became Exhibit B in the proceedings. That statement included the following:

“3.  Prior to my wife's accident, I have never known her to suffer any sort of injury or pain.

…

5.  Since the accident, I have noticed changes In Rosa. She suffers physically and complains of injuries in her back, neck, shoulder and left arm. I often see her struggling with this, she will wince and touch her neck and back for example.

6.  Rosa and I both currently work for The Haven on a full-time basis. We both are required to work full-time out of financial necessity.

7.  This position involves vacuuming, cleaning bathrooms and rooms and general housekeeping duties.

8.  Rosa has significant difficulty in completing these physical tasks and as a result, I have to assist her, specifically with tasks that involve the use of her hands and arms. This then causes her pain in her back.

9.  I often observe Rosa having to sit down and take a break after we complete each room. This then causes her pain in her back.

10.  Rosa will use various pain management coping mechanisms to help alleviate her pain. She will sit down and take rest breaks, take deep breaths; avoid heavy lifting and take pain medication (such as Nurofen and Panadol) on an as required basis.

11.  If the pain builds up and is too significant, Rosa will take sick days off to try and recover.

12.  Without my help, Rosa would be unable to fulfil the requirements of her position and this could jeopardise her employment. I can tell Rosa is fearful of this.

13.  Fortunately, our boss is quite sympathetic to Rosa's needs and allows me to assist Rosa with her tasks. We are usually rostered on together, which allows me to complete whatever tasks she cannot. I will also occasionally go to work for her and complete her work.

14  However, we only disclose this assistance when there is a significant load of work or Rosa is suffering an aggravation. We are careful not to alert the boss as to the frequency of this assistance as we do not want it to jeopardise Rosa's employment.

…

18.  As a result of the accident, Rosa has been struggling to compete [sic] her domestic tasks and has relied upon her children in the past to assist, with particularly the heavier aspects. This includes cleaning floors, bathrooms and undertaking lawn maintenance.

19.  Since this time, Rosa's son has got married and moved out of home, so is unable to assist anymore. Rosa's other son can only sporadically assist.

20.  I try and assist with as much house work as I can, particularly with the heavier tasks such as vacuuming and with the dishes. However, I work full-time and as such, many of the domestic tasks are just neglected as I do not have the time.

21.  I notice this upsets Rosa as she enjoyed completing the housework and took pride in keeping a clean house.”

73. Mr Bereche gave very limited oral evidence. It was thus difficult to form a clear view in relation to him. However, he appeared to make every attempt to be honest and frank in his evidence. There was no cross-examination by counsel for the defendant of Mr Bereche.

The plaintiff

74. In my view, aspects of the plaintiff's evidence should be treated with some caution. Overall, I thought that the plaintiff was in most cases trying to give her evidence truthfully and to the best of her ability. However, she had a tendency to exaggerate in some important parts of her evidence. Examples include:

1. The plaintiff gave oral evidence that before the accident she did all the house work and she received no assistance from her children: T55.1-.12; T71.11. In further cross-examination, the plaintiff conceded that for the majority of the time she did the lawn mowing but that at some times her sons assisted her: T71.13-.32. I have already referred above to the references in certain reports to the plaintiff being granted domestic assistance by members of her family prior to the accident: Exhibit A page 44 paragraph 4.3; Exhibit A page 24;

2. The plaintiff gave evidence that after the accident she did no cleaning, vacuuming or making the beds in her job (T62) but merely came in and looked at a room and saw that everything was alright and did some light dusting (T62.45) whereas her statement, Exhibit 2, suggests that she did these heavier tasks: see paragraphs 27-29;

3. The plaintiff gave evidence that as she was having difficulties with her domestic duties, her husband Norman does all the domestic duties she was asked about: T49.36-T51.1. However, Ms Goron's second report (which the plaintiff also tendered) has the plaintiff undertaking a number of these relevant domestic duties including some laundry activities and some shopping: Exhibit A pages 90-93. I will consider the evidence further on this point below in the light of Ms Goron's personal care recommendations: Exhibit A page 97.

The plaintiff's medical evidence

75. The plaintiff tendered extensive medical evidence in the proceedings. As the issues in the case turned primarily on the extent of the plaintiff's injuries in the motor vehicle accident and her continuing restrictions and disabilities, if any, it is necessary to look at this evidence in some detail.

The Liverpool Hospital discharge referral

76. As stated above, on 20 December 2014 the plaintiff attended the Emergency Department at Liverpool Hospital following the motor vehicle accident. The plaintiff arrived late in the evening on 20 December 2014. The notes include the following summary:

“45yo lady presented post MVA. Front seat passenger.

Car was almost stopped when a bike with high speed hit from front.

Was wearing seatbelt.

C/o of muscle pain in back.

…

Nil midline tenderness in spine

Nil other injuries.

Other examinations unremarkable.

Discharged home with reassurance.”

77. No radiological examinations were undertaken of the plaintiff at Liverpool Hospital.

77. It appears that the plaintiff consulted her current solicitors about a week after the accident: Exhibit A page 388.

General practitioner notes

79. Extensive materials from the plaintiff's general practitioner, including general practitioner consultation notes, were tendered in the plaintiff's case. The consultation notes were given some importance by both parties. Some caution must be exercised in relying on what appears in medical notes for the reasons given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]. This is particularly so in the case of a person who has limited English such as the plaintiff who gave her evidence through a Spanish interpreter.

80. As stated above, the plaintiff commenced as a patient at the Ingleburn Medical Centre on 10 September 2009.

81. The general practitioner consultation notes include the following:

1. 2 May 2011: “pain in the left knee denies injury cannot get up from sitting”;

2. 8 January 2014: “pain in the left knee for one wk no h/o trauma or injury … Extension painful x-ray”;

3. 6 September 2014: “L hand wrist lateral border radial head very sore three days pain on move works in laundry heavy lifting … Tender radial head … Tenosynovitis”. The plaintiff was told to take Voltaren and later in the month was given a prescription for Panadeine Forte;

4. 7 January 2015:

“MVA on 20/12/15 [sic]

Been in passenger seat

Went to hosp LHS

no d/c cert available

had pain on R arm

neck/shoulder good ROM

Nurofen/Panadol PM”;

5. 23 January 2015:

“MVA passenger in MVA

attend Liverpool

ROM of the shoulder and low back possible

slightly tender in the back … Nurofen”;

6. An x-ray of the spine was ordered by the general practitioner on 12 May 2015;

7. 12 May 2015:

“Car accident 20/12/2014

Neck – back pains

affecting movements

Back:

no obvious tenderness

movements but with pains.”

8. On 19 May 2015 the plaintiff was prescribed Lyrica;

9. 21 May 2015:

“CTP 1/1 – neck + back

DOI 20/12/14

had accident … Complaining of lower back pain and neck pain

neck

nil neurological symptoms

tender C1 – 3 L + R facets

…

back

nil neurological deficits

tender L4/5 facets L + R

good ROM — pain EOR flexion”;

10. On 25 May 2015, the plaintiff commenced physiotherapy. This occurred over several months and the consultation notes record the plaintiff making good progress. The notes for 18 June 2015 refer to the plaintiff being seen for her neck.

11. On 14 September 2015 the plaintiff was again prescribed Lyrica;

12. 14 September 2015, there is a reference in the notes to back – neck pains;

13. On 28 January 2016, there is a reference to the plaintiff feeling depressed as her partner is in Peru and that she cries a lot. There are a similar entries on 29 January 2016 and 29 March 2016;

14. 7 June 2016: there is a reference to the plaintiff needing further physiotherapy “because all her back is in pain”;

15. 12 July 2016: the general practitioner notes refer as follows:

“After the accident indicated she has not worked properly and struggled financially. Experiences pain in her lower back, both arms but mainly in her left arm and left leg. Left arm cannot carry.”

16. 12 December 2016: there is a reference to the plaintiff having pain which comes and goes in her left wrist for over one year.

17. On 10 January 2017 the notes refer to the plaintiff not having tenosynovitis but having a tender radio carpal area of the wrist and a ganglion on the left wrist. See also the notes for 17 February 2017;

18. There were referrals for CT scans of the lumbar and thoracic spine in August 2017;

19. 18 August 2017: there are references to the plaintiff having pain in the lower back, worse on movement, pain in both knee joints and tender paravertebral muscles in the lumbar region;

20. 10 September 2017: there is a reference to the plaintiff having ongoing lower back pain.

21. 17 September 2017: Panadeine Forte tablets were prescribed;

22. 19 September 2017: the notes state that the plaintiff gets pain in the back which radiates to her left gluteal area and has a tender L4/5 spine;

23. 13 October 2017: there are references to the plaintiff having pain and numbness in the left side of the thigh;

24. 20 October 2017: the notes say that the plaintiff stated that the back pain was better with the Lyrica. There is a similar reference to the back pain being better with Lyrica on 27 October 2017 in the notes but there is also a reference to the plaintiff having neck pain. Neck pain is also referred to in the notes for 6 November 2017;

25. 24 January 2018: “lower back pain & neck pain … Back & neck restricted move … Panadeine Forte”;

26. 7 August 2018: there is a reference to lower back pain radiating to the left thigh and degenerative changes with compression at L5/S1;

27. 20 September 2018: there is a reference to lower back pain radiating to the left leg and degenerative changes. Similar references are made on 4 October 2018; and

28. 29 November 2018:

“Has got long-standing low back pain.

gets low back pain.

no radiation."

Radiological reports

82. As stated above, no radiological tests were undertaken when the plaintiff was at Liverpool Hospital on 20 December 2014. Thereafter, the plaintiff had a number of radiological tests. Prior to the accident, on 21 January 2014, the plaintiff had an x-ray of her left knee which was normal.

83. On 12 May 2015, there was an x-ray of the plaintiff’s thoracolumbar spine with the report making a reference to the plaintiff having chronic pain since the car accident in December 2014. Dr Sacks reported that no acute fracture was identified but there was moderate to marked disc space narrowing with disc degeneration noted at the L2-3 level.

84. On 3 January 2014, there was an ultrasound examination of the plaintiff’s left wrist to see whether the plaintiff was suffering from tenosynovitis. Dr Sacks reported no signs of tenosynovitis.

85. On 17 March 2017, there was an ultrasound guided left wrist aspiration which found a ganglion cyst in the plaintiff’s left wrist. This is relevant to the plaintiff's initial claim of a left wrist injury.

86. On 18 August 2017, Dr Sacks reported in relation to a CT scan of the plaintiff's lumbar spine. Various disk space narrowing was noted together with disc degeneration, early to moderate spondylotic changes and early osteoarthritis.

87. On 7 November 2017, there was a CT scan of the plaintiff’s cervical spine following complaints of pain in the neck. Minor disc bulges were noted at various levels in the cervical spine as well as mild disc space narrowing and early spondylitic changes. Essentially, the report referred to degenerative changes in the plaintiff’s cervical spine.

88. A further CT scan of the plaintiff's lumbar spine was undertaken by Dr Sacks on 29 November 2018. Mild to moderate disk space narrowing and early disc degeneration with a broad posterior disc bulge was noted at the L5/S1 level. The changes were said to be degenerative by Dr Sacks.

Referral to Dr Darwish

89. The plaintiff’s general practitioner, Dr Datta, in October 2017 referred the plaintiff to Dr Darwish in relation to the plaintiff’s pain in the back and tingling, pain and numbness in the left side of the thigh. Neck pain was also referred to. It was noted that the plaintiff’s back pain was better with Lyrica: Exhibit A page 272. In a brief report dated 13 November 2017, Dr Darwish commented on the 18 August 2017 CT of the plaintiff’s lumbosacral spine showing degenerative changes at multiple levels and bilateral L5/S1 stenosis.

MAS report of Dr Philip Truskett

90. The plaintiff tendered a report of MAS Assessor Dr Truskett dated 14 December 2016: Exhibit A page 103. An MAS report must be considered carefully as the doctor cannot be subpoenaed in relation to the report.

91. In the report, Dr Truskett found that the plaintiff had, as a result of the accident, soft tissue injuries to the cervical spine, lumbar spine and right shoulder. Dr Truskett rejected that the plaintiff’s alleged left wrist injury was connected with the accident and referred to the complaints prior to the accident as recorded in the general practitioner notes in relation to the plaintiff’s left wrist.

92. Dr Truskett noted that the plaintiff denied previous injuries to her neck, right shoulder, left wrist or lumbar spine, but stated that the documentation before him did reveal that she has had a previous left wrist injury. Dr Truskett referred to the fact that the plaintiff took only a short period of time (one week) off work after the accident. It was noted by Dr Truskett that the plaintiff complained of symptoms relating to her neck, right shoulder, left wrist and lower back. Dr Truskett set out the plaintiff's complaints in some detail and the frequency of her pain. He noted that the plaintiff worked as a cleaner and housekeeper in a hotel but that she was assisted by co-workers. Dr Truskett noted that the plaintiff took Lyrica three times per week, Panadol two per week, Panadeine Forte three times per week and Nurofen approximately three times per week.

93. Dr Truskett on examination noted in relation to the plaintiff’s neck that there was no muscle guarding and that reflexes were normal. In relation to the plaintiff’s back, he noted no loss of lumbar lordosis or paravertebral muscle guarding. In relation to the plaintiff’s shoulders, there was no muscle guarding but there was positive impingement with the plaintiff’s right shoulder. Dr Truskett said that the plaintiff had a consistent presentation. He then reviewed the various documents before him and the plaintiff's account of the injury. He noted that the plaintiff was taken to Liverpool Hospital and she complained predominantly of back pain but there was no real tenderness and there was no complaint of left wrist or shoulder pain. Dr Truskett noted that right shoulder pain and back pain was a consistent complaint from the plaintiff.

94. Having regard to the materials before him and his examination, Dr Truskett found soft tissue injuries to the cervical spine, lumbar spine and right shoulder but that the injury to the left wrist was not connected to the accident.

Medicolegal reports – Dr Maniam, Orthopaedic Surgeon

95. The plaintiff relied on two medicolegal reports of Dr V Maniam, Orthopaedic Surgeon.

96. In his first report dated 16 March 2016, Dr Maniam considered the plaintiff’s reported injuries to her cervical spine, lumbar spine, right shoulder and left wrist.

97. After setting out a history from the plaintiff, noting her work and the plaintiff’s claim that she had been having difficulty with her work and household tasks, Dr Maniam noted the plaintiff’s complaints of ongoing back pain and restrictions in movements. He also noted in his report that the plaintiff claims she manages at work.

98. Dr Maniam diagnosed musculoligamentous strain of the cervical spine with aggravation of underlying degenerative disease; right shoulder capsulitis; musculoligamentous strain of the lumbar spine with aggravation of underlying degenerative disease and expressed the view that these symptoms were caused by the accident. Dr Maniam stated that it was likely that some of the plaintiff’s problems may not completely disappear in view of the degenerative changes and that the plaintiff had multiple disabilities which rendered her unfit for overtime, extended shifts, heavy lifting, repetitive movements and prolonged standing. He expressed the opinion that there would be some absenteeism from work from time to time and that some domestic assistance was needed. He also set out his recommended future treatment and estimate of costs which recommended very wide ranging medical review, physiotherapy, medication and further investigative procedures.

99. In his report dated 27 June 2018, Dr Maniam updated the plaintiff’s situation. He reviewed the x-ray of the plaintiff’s thoracolumbar spine. Her continuing complaints in relation to the cervical spine, lumbar spine and right shoulder were noted. The pain in the cervical spine was minimal and had reduced and was manageable. The pain in the lumbar spine was said to fluctuate between mild to moderate intensity. The plaintiff’s right shoulder was said to not have improved. Dr Maniam expressed the opinion that the diagnosis remained the same as in his first report but in addition the plaintiff exhibited moderately severe bilateral trochanteric bursitis. He expressed the opinion that the movements in the cervical and lumbar spine had somewhat improved but continued to exhibit restriction and that the right shoulder movements were compromised as previously described with no improvement: Exhibit A page 70.

Report of Mr S Buddle

100. The plaintiff tendered a report of Mr Stephen Buddle, rehabilitation counsellor, dated 17 August 2015. Mr Buddle assessed the plaintiff in relation to her capacity for work following the accident. He noted that she spoke Spanish at home and that her English language skills were very poor. The assessment was conducted with the assistance of a Spanish speaking interpreter.

101. The history given to Mr Buddle was that the plaintiff was in the car accident, had been working on average 20 hours per week for Linen Star Laundry prior to the accident, and in January 2015 found alternative employment as a housekeeper, which was not as arduous as her laundry work which she found difficult following her injuries in the accident.

102. It was noted that the plaintiff was unable to read or write in English, she did not have a drivers licence, was at that time a single mother with an eight-year-old daughter and relied on public transport.

103. The plaintiff reported to have pain and limitation in her right wrist, lower back and had gone on to find lighter duties as a hotel cleaner but she still avoided certain activities in that job due to her reduced capacity.

104. Mr Buddle expressed the opinion that the plaintiff’s employment options without the injury were limited to manual labour, unskilled process work as she was doing prior to the accident, or in a factory as a process worker or packer. He expressed the opinion that due to the injuries in the accident, the employment options available to the plaintiff were significantly limited. He also expressed the view that if the plaintiff was unable to continue to manage her current part-time casual cleaning duties, she would struggle to find other suitable employment due to her injuries and the other barriers which she faced. He recommended that the plaintiff would benefit from a vocational rehabilitation program which would normally take 6 to 12 months to complete and cost in the order of $10,000. In summary, Mr Buddle expressed the opinion that the plaintiff's current earning capacity had reduced because of the injury and her current and future employment prospects had been severely limited: Exhibit A page 39.

Report of Ms A Shearer

105. The plaintiff relied on an occupational therapy report of Ms Amber Shearer, occupational therapist. The date of assessment by Ms Shearer of the plaintiff was 29 September 2015, over three years ago. The report was dated 6 October 2015. Ms Shearer noted limitations in the plaintiff following her injuries in the accident. She also noted that since the accident the plaintiff had remained independent with personal care tasks by altering her techniques but was unable to maintain all of her domestic tasks and had altered her practices relying partly on her children to complete tasks. She noted that the plaintiff’s sons had provided one hour assistance per month. It was recommended that the plaintiff receive commercial domestic assistance for two hours per week in the future: see Exhibit A pages 42 and 49. Ms Shearer expressed the view that as a single parent at that time, the plaintiff's priority was working and earning an income to support her family and that the work exacerbated her pain symptoms and affected her ability to perform domestic tasks at home. This was the reason for the recommended weekly commercial assistance for two hours.

106. Since that time, the plaintiff has married. It is noted that the recommended commercial assistance was to undertake heavier domestic tasks including vacuuming, sweeping and mopping, cleaning bathrooms/toilets, changing bed linen for two beds and heavy items of laundry.

Reports of Ms F Goron

107. The plaintiff tendered two reports of Ms Fiona Goron, occupational therapist. Both reports had been obtained by the defendant’s insurer or solicitors.

108. In the first report dated 2 February 2015, Ms Goron noted that she had assessed the plaintiff on 15 December 2015. Accordingly, no doubt the report should be dated 2 February 2016. This date is used in the body of the report.

109. At pages 24-26 of her report (Exhibit A pages 29-31), Ms Goron gives her recommendations for care and assistance having regard to the plaintiff’s condition. In summary:

1. Ms Goron expresses the opinion that the plaintiff did not require personal care assistance as a result of the injuries in the accident;

2. The plaintiff did require assistance in relation to domestic activities following the accident in varying amounts, all less than six hours per week;

3. Ms Goron recommended the plaintiff’s future care requirements as being one hour a week for mowing her lawn (0.5 hours per week) and spring cleaning including window washing (0.5 hours per week). Ms Goron did not agree with the recommendations of Ms Shearer in relation to current and future levels of domestic assistance and her two hour recommendation. Ms Goron expressed the opinion that Ms Shearer's report did not take into account that the plaintiff was able to perform many of these tasks, like changing bed linen, as it was a task which the plaintiff completed at work. Ms Goron also noted that Ms Shearer had not taken into account that many of the cleaning and laundry activities could be improved with the provision of lightweight equipment.

110. Ms Goron recommended:

1. That the provision of occupational rehabilitation services to facilitate the plaintiff’s work may be reasonable and necessary as outlined by Mr Buddle following a trial of equipment and some functional education; and

2. Attached to her report equipment recommendations.

111. It was also recommended that the plaintiff undertake occupational therapy intervention and an assessment on her right shoulder with a physiotherapist: Exhibit A page 31.

112. Ms Goron provided an updated report dated 4 July 2018 following an assessment on 15 June 2018. Ms Goron noted the activities which the plaintiff was required to complete as part of her work as a housekeeper and how these were similar to domestic activities at home. Ms Goron expressed the opinion that while the plaintiff did not need assistance with personal care or cooking and meal preparation, she did need some assistance with some domestic activities. Ms Goron expressed the opinion that the plaintiff could undertake household cleaning and laundry provided the plaintiff paced the work, modified her tasks and used some additional equipment. The view was expressed that ongoing assistance with washing activities was not considered reasonable or necessary. However, Ms Goron was of the view that:

1. The plaintiff required assistance with some domestic tasks including cleaning, laundry and shopping for 1.5 hours per week;

2. The plaintiff required assistance in the future for mowing and spring cleaning including window washing for one hour per week;

3. The plaintiff needed the equipment and future interventions from an occupational therapist and a physiotherapist assessment as indicated in her first report. A list of the equipment needed was also provided.

113. Ms Goron’s second report is somewhat confusing as to her recommendations. Although she states that the plaintiff's current care requirements were two hours a week, the amount indicated immediately preceding this recommendation was 1.5 hours and then Ms Goron proceeded to mention other types of care of one hour per week. It seems that her recommendations for weekly assistance are accordingly 2.5 hours per week rather than the two hours she indicates. This same anomaly appears in the copy of the report of Ms Goron which appears in the defendant’s tender bundle, Exhibit 1. Some weight must be given to Ms Goran’s latest report because it is so recent.

The defendant’s evidence

114. The defendant tendered a bundle of documents which became Exhibit 1 in the proceedings. Many of the documents in Exhibit 1 were contained in Exhibit A.

Reports of Dr G McGroder

115. The defendant tendered in Exhibit 1 two reports of Dr Greg McGroder, occupational health physician.

116. In his first report dated 18 November 2015, Dr McGroder noted the following relevant history:

1. The plaintiff did not have any general health problems;

2. She had no musculoskeletal problems prior to the accident;

3. She was separated and lived with her four children. The house work was shared by her and her eldest daughter. A son did heavier aspects of the housework such as vacuuming and carrying out the rubbish;

4. The plaintiff claimed that she received assistance at her work as a housekeeper at the hotel in Glebe with vacuuming;

5. After the accident the plaintiff rested at home until 7 January 2015 when she attended her usual GP at the Ingleburn Medical Centre. She said that she had aching in her back and arms at that time but kept working;

6. The plaintiff said that her major problems were with her lower back with constant pain there and with her neck which had pain on turning her head sideways or looking up and down. The plaintiff also noted right shoulder pain and left wrist pain.

117. Dr McGroder noted the x-ray of the plaintiff’s thoracolumbar spine dated 12 May 2015. His diagnosis was that the plaintiff had a history of soft tissue injury involving the lower back sustained in the motor vehicle accident but there was no objective evidence that this condition was ongoing. Dr McGroder noted that the hospital records only referred to low back pain. He expressed the opinion that following physiotherapy, the plaintiff's low back condition had resolved. He expressed the opinion that the plaintiff did not require domestic assistance and disagreed with the opinion of Ms Shearer. He also expressed the opinion that based on the plaintiff's physical presentation in his assessment, she would not need any time off from her job at the moment or into the future.

118. In his updated report dated 17 April 2018, Dr McGroder came to a similar opinion. He assessed the plaintiff on 17 April 2018, the date of his report.

119. Dr McGroder noted:

1. That the plaintiff said that her general health was unchanged and was good;

2. That the plaintiff had re-married in 2016 and was currently living with her husband and one of her daughters. The plaintiff's other children were independent;

3. The plaintiff said that she does her house work slowly and her husband helps her with the heavier aspects;

4. The plaintiff has since become full-time in May 2016 in her work at the hotel in Glebe and continued to do the work full-time with the help of her husband;

5. The plaintiff claimed to have ongoing problems with her neck, right arm, lower back and left wrist;

6. The plaintiff was taking Lyrica and Panadol;

7. The plaintiff said that she had intermittent low back pain, intermittent neck pain, pain in the right shoulder when she moves her shoulder and problems with her left wrist in relation to holding heavy objects.

120. Dr McGroder noted that all movements of the plaintiff were conducted in an active manner. He said the only radiological evidence available to him was the x-ray of the thoracolumbar spine performed on 12 May 2015. Dr McGroder expressed the opinion that there was nothing that caused him to alter his opinion that in the accident the plaintiff sustained an injury to the lumbar spine. However, he expressed the view that based on her current presentation, the lower back injury was ongoing. He was of the view that the complaints of neck pain with referral to the right shoulder were not related to the accident. His diagnosis was of a musculoligamentous injury to the lumbar back with ongoing symptoms. He expressed the view that the low back pain was a result of the accident. Noting the plaintiff's full-time work as a housekeeper, Dr McGroder expressed the view that he would put no restrictions on the plaintiff's work capacity as long as she works with common sense manual handling techniques. He also expressed the view that her full-time work as a cleaner would suggest that domestic assistance was not required as a result of any injury sustained in the motor traffic accident and also no ongoing care was required for any injury.

121. Dr McGroder expressed the view that the plaintiff’s intermittent physiotherapy, acupuncture and medication was appropriate and she should undertake a self-directed land based exercise program.

122. The main difference between the two reports is that Dr McGruder noted the plaintiff's ongoing lumbar back symptoms and expressed the view that they were the result of the motor vehicle accident.

Submissions

123. Detailed oral submissions were made by counsel for the parties.

124. Counsel for the plaintiff submitted, in summary, as follows:

1. The plaintiff should be accepted as a witness of truth;

2. The documentation which was tendered in substance supported the plaintiff's evidence;

3. The documentation tendered, including the general practitioner notes, provided substantial evidence supporting the plaintiff's account of her ongoing injuries and restrictions;

4. The plaintiff's background was as a cleaner and housekeeper. She had no qualifications. Although she continued in employment at The Haven Hotel, the evidence of Mr Buddle, rehabilitation counsellor, established that the plaintiff was a person with limited vocational prospects particularly in the light of her poor English. Accordingly, she would have limited prospects if she was forced to leave her current employment. She had no qualifications relevantly other than two certificates in aged care which she had not used;

5. The accident in which the plaintiff was involved was a serious accident. It was described as such by the police: Exhibit A page 548. The plaintiff's evidence was that she could not exit from the vehicle from her passenger side after the accident and the car was never driven again;

6. The evidence shows that the plaintiff attended Liverpool Hospital on the night of the accident complaining in relation to her back and she had no back problems previously. This was supported by the lack of back problems being revealed in the notes of the general practitioner. The plaintiff's evidence that the Ingleburn Medical Practice was the only medical practice she attended since coming to Australia should be accepted;

7. The Liverpool Hospital notes and the general practitioner notes clearly established a soft tissue injury with the plaintiff’s back. Also, the notes established the neck and right shoulder injuries. The plaintiff's evidence about taking Panadol within a week after the accident for these various problems should be accepted. The general practitioner notes showed the plaintiff going regularly to her general practitioner. The entries for 7 January 2015 and 23 January 2015 supported the plaintiff having problems with her right shoulder which, if they were accepted, had improved somewhat. The main claims were for the neck and back. It was accepted that the plaintiff’s left wrist injury had healed;

8. The radiological evidence supports the complaints of soft tissue injury to the plaintiff’s back. The soft tissue injury included minor disc bulges as shown in the radiological evidence. The opinion of Dr Maniam should be accepted that there was musculoligamentous strain of the cervical and lumbar spine in the accident with an aggravation of underlying degenerative disease with no evidence of any neurological compromise: Exhibit A page 67. There was no satisfactory evidence to the contrary of this. The medicolegal reports on behalf the defendant, the reports of Dr McGroder, do not deal with the plaintiff’s cervical injury;

9. The medical notes show that the plaintiff was having problems prior to the arrival of her husband Norman in Australia: 12 July 2016 entry, Exhibit A page 131;

10. The plaintiff should be accepted that the only tasks she completed in her job at The Haven Hotel was dusting, checking and replacing items and not undertaking any heavy tasks. It was not appropriate to consider paragraphs 26 to 30 of the plaintiff's statement, Exhibit 2, as establishing anything to the contrary;

11. Although the back injury was the plaintiff's main problem, the plaintiff also had injuries to the cervical spine and to her right shoulder although the latter had improved somewhat. Each of these injuries was caused by the accident.

12. The damages which should be allowed are as follows:

General damages

Nil

Past out-of-pocket expenses s 83 expenses

$3,442.67 but not claimed

Other medical and doctor expenses

$2,952.20 (agreed)

Lump sum for past analgesia

$750

Future out of pocket general practitioner consultations; four times per annum

at $80 per visit to age 65 (17 years)

$5,642.65

Consultations with orthopaedic surgeon, twice per annum at $200 per visit for five years

$1,780.77

Equipment as set out in the appendix to Ms Goron’s report

$726 plus replacements

Occupational therapy intervention

$1,440 plus GST

Exercise physiology intervention

$140

Future analgesia (buffer)

$7,500

Past economic loss - one week of lost wages

$320

Past superannuation

No claim

Loss of future earning capacity on a buffer basis plus superannuation

$100,000

Past domestic assistance

Nil

Future commercial assistance 2.5 hours per week until age 75

($46.94 × 2.5 = $117.35 per week until 75 years = $117.35 x multiplier 762 (25.7 years) =

$89,421

125. The defendant's submissions, in general summary, were as follows:

1. The plaintiff should be rejected as a witness of truth;

2. The plaintiff's oral evidence was that she only undertook at work dusting, checking and other light duties whereas the statements signed by her and her husband established that she engaged in normal housekeeping duties including vacuuming, cleaning bathrooms and the rooms and general housekeeping duties: Mr Bereche’s statement, Exhibit B paragraphs 6-11 and the plaintiff's statement, Exhibit 2, paragraphs 26-30. The plaintiff's oral evidence as to her restrictions should not be accepted in the light of this;

3. The plaintiff also gave evidence that she undertook all domestic duties prior to the accident (T55.1-.16) whereas later the plaintiff gave evidence that the plaintiff's sons did do some of the lawn mowing: T71. A number of the medical/OT reports suggest that the plaintiff shared domestic tasks with her family prior to the accident: Shearer report page 2 paragraph 4.3; Exhibit A page 44; plaintiff's statement Exhibit 2, paragraph 37;

4. The medical notes refer to the plaintiff as having difficulties in other areas both prior to and after the accident including: problems with the plaintiff’s left wrist, problems with the plaintiff’s left hip and left arm, problems with the plaintiff’s knees, problems with the plaintiff’s left ankle, problems with the plaintiff’s left thigh and gluteal area;

5. The plaintiff's own medicolegal expert Dr Maniam said that there has been an improvement in the plaintiff’s shoulder: Exhibit A page 70;

6. The MAS Assessor Dr Truskett allowed no percentage of whole person impairment for the back or the neck which showed that they were not significant disabilities in his opinion;

7. There was no loss of earnings by the plaintiff. The plaintiff should not be accepted that she was off work for one week. The evidence is inconsistent on this issue: see Dr McGroder's first report page 7. No allowance should be made to the plaintiff as there is no satisfactory evidence of either a diminution of the earning capacity or a risk that the plaintiff will stop work in the future. The plaintiff’s evidence is clearly heavily exaggerated and should be rejected. No allowance should be made by way of a buffer;

8. There was no need for commercial assistance. Paragraph 20 of Mr Bereche’s report, Exhibit B, did not satisfy the test of a need for commercial domestic assistance. It establishes that Mr Bereche assists the plaintiff with the heavier domestic tasks such as vacuuming and with the dishes. The evidence, as set out in the occupational therapist reports, is that the plaintiff is able to do many domestic tasks such as cooking and the like;

9. In relation to analgesia, many of the prescriptions for Panadeine Forte related to other matters. There were few prescriptions for Lyrica. There was no report from the plaintiff's general practitioner, who was a significant person, in relation to the plaintiff’s claimed disabilities;

10. The amount claimed for a review by Dr Darwish should be rejected as it related to the plaintiff’s pain and left thigh not the injuries complained of;

11. Only the amount for past out-of-pocket expenses claimed by the plaintiff should be allowed.

126. In reply, counsel for the plaintiff submitted in summary:

1. The referral to Dr Darwish clearly related to the plaintiff’s back and neck pain: see Exhibit A pages 272 and 385;

2. The reference to complaints in relation to the plaintiff’s left arm was clearly incorrect and should have been to the plaintiff's right arm. See the plaintiff’s oral evidence at T77-78;

3. It was accepted that the injury to the plaintiff’s left wrist had healed;

4. Although there was some suggestion in 2016 that the plaintiff was making good progress with physiotherapy, the plaintiff had felt the need to obtain further physiotherapy in 2018: Exhibit A page 518.

Consideration

Factual findings

127. In the light of the submissions from the parties and having considered the evidence, I make the following factual findings:

1. The plaintiff was born in Lima in Peru in October 1969. She was involved in a previous relationship which commenced in Peru and she has four children to that relationship which has since ceased. The plaintiff's current husband, Norman Bereche, came to Australia in July 2016 and was married to the plaintiff in December 2016;

2. The plaintiff left Peru in 2000 and moved to Spain where she undertook housekeeping and childminding tasks. The housekeeping tasks included cleaning;

3. The plaintiff came to Australia in 2006. She was involved in domestic duties until 2013. She undertook some home catering in this period and received in some periods the New Start Allowance;

4. The plaintiff obtained a job in October 2013 at Star Linen Laundry where she completed the maximum hours which were available of 20 hours per week. She was paid $15 or $16 per hour. This work involved the plaintiff ironing pillow slips. There were no formal records in relation to the plaintiff’s work at Star Linen Laundry and she was not paid superannuation for this work.

5. Prior to the accident, the plaintiff completed the bulk of domestic duties in her house. However, her older children assisted her to some degree including her sons with mowing. There is inconsistent evidence in relation to the amount of assistance given. I accept that whilst the plaintiff did most of the domestic duties, she received assistance from her sons with mowing and from her adult children to some degree with other domestic duties;

6. The plaintiff was involved in a motor car accident on 20 December 2014. I accept the plaintiff's evidence in substance in relation to the accident. A motorcycle driven by a person crossed the road and collided at fairly high speed with the plaintiff’s vehicle. I accept from the evidence that the vehicle in which the plaintiff was travelling was no longer driven after the accident and I infer that it was written off. The police classed the accident as a major accident and having regard to the fact that police, fire and ambulance services were called, I find that the accident was a fairly major one. This is supported by the plaintiff's inability, which I accept, to exit after the accident by the door on the passenger side of the vehicle.

7. The plaintiff was not conveyed to Liverpool Hospital by ambulance. This would suggest that either the ambulance officers and/or the plaintiff did not at that time consider her injuries to be serious. However, the plaintiff’s adult son later conveyed the plaintiff and her two daughters to Liverpool Hospital. This would suggest that at the least the view was taken that the plaintiff's condition should be reviewed at the hospital.

8. The plaintiff claims that she was off work for a week as a result of her injuries. This was the plaintiff's oral evidence. Dr McGroder's report says that the plaintiff was not off work for any period due to the accident. There are no contemporaneous documents as to this. Having seen the plaintiff give evidence on this issue, and having regard to the nature of the accident, I accept her evidence that she was off work for a week and accordingly she lost wages of $320 for that week. As the plaintiff was not paid superannuation, there is no superannuation loss in that week as a result of the accident.

9. I accept the plaintiff's evidence that she had some difficulties completing her job at Star Linen Laundry after the accident due to her injuries and that she sought the housekeeping job at The Haven Hotel at Glebe. There is a significant factual dispute between the parties as to what precisely the plaintiff does at The Haven Hotel.

10. The plaintiff gave evidence of undertaking limited housekeeping duties which involve dusting and checking that everything in the room was alright: T26.15-T28.30. The plaintiff later gave evidence that she did not undertake any duties involving vacuuming, cleaning the bathroom or toilet or changing the beds: T55.22-T56.

11. This should be compared to the plaintiff's statement dated 31 July 2017, Exhibit 2, paragraphs 26-30 and the plaintiff's husband's statement dated 31 July 2006 paragraphs 6-10.

12. When the plaintiff's statement was directly put to her by me, she stood by her oral evidence that she only undertook dusting and checking that the rooms were alright.

13. In my view, the plaintiff's oral evidence on this issue should be rejected. The statements of the plaintiff and her husband were made in July 2017, well before her oral evidence. It is to be expected that the events were fresher in the minds of the plaintiff and her husband at that time. It is also expected that some care was taken in preparing the written statements. In my view, the only proper way to read the statements is that the plaintiff did undertake the cleaning of the rooms including some vacuuming, cleaning the bathrooms and making the beds, but that her husband assisted her with the heavier tasks or when she had problems. This, in my view, is consistent with the plaintiff’s initial oral evidence in chief that if there was something “quite heavy to do” then a colleague would assist her: T26.33 and at T28.19 which suggests that the plaintiff could at least perform some of the tasks of changing the bed. I find that the statements accurately summarise the plaintiff’s capacities in her work and her limitations.

14. The medical records indicate that the plaintiff told her general practitioner that her boss regarded her as “the best housekeeper” (Exhibit A page 131). Even assuming that the plaintiff kept many of her difficulties from her superiors, I do not think that she would be regarded as the best housekeeper if she essentially depended on others to perform all but the lightest of tasks. The two statements are only consistent with the plaintiff undertaking some of the tasks she said she could not do in her oral evidence but with her husband assisting her particularly in relation to heavier tasks including most vacuuming.

15. Accordingly, I find that the plaintiff does, contrary to her oral evidence, undertake housekeeping and cleaning tasks at the hotel but that her husband undertakes the heavier duties including heavier vacuuming and heavier cleaning and the changing of the bed linen.

16. The evidence shows that the plaintiff’s working hours at The Haven Hotel increased to 37 hours a week from 20 hours per week in early 2016: T26.50-27.6; T32.32-T33.29; T36.30; T38.10; T39.13; T40.43-41.1. This is consistent with a perceived ability to do more by her.

1. The plaintiff gave evidence that the amount she received per hour from The Haven Hotel was more than she received at Star Linen Laundry at the time of the accident: T26.50-T27.1. Even though she has reduced her hours in 2018, she still works the same number of hours as she did prior to the accident and receives more money. Accordingly, I find the plaintiff has not lost any money as a result of the accident in the amount she has received from her work, apart from the week off after the accident.

2. The plaintiff continues to work at The Haven Hotel in Glebe. Her husband works with her and assists her with heavier tasks including vacuuming. The plaintiff is concerned about her continued ability to work at the hotel because of her pain and restrictions.

3. The plaintiff has taken various analgesia for her pain, including Panadol and Lyrica.

4. The plaintiff intended to work as long as she could prior to the accident including up to about aged 70 if possible.

Medical findings

128. Having regard to the submissions and having considered the relevant evidence, I make the following findings in relation to the medical evidence issues:

1. The plaintiff gave evidence that the main areas which were injured in the accident and which continued to give her problems were her lower back, neck and right shoulder. There are many references in the evidence to the plaintiff also having an injury to her left wrist. The evidence establishes that any injury to the left wrist no longer is a problem for the plaintiff and that it has healed: T70.20. Counsel for the plaintiff did not press any injury in relation to the left wrist in oral submissions;

2. The plaintiff submits that although the plaintiff’s right shoulder has improved, that she still has pain and restrictions in her lower back and neck. The defendant submits that the plaintiff only injured her back in the accident and that this was only an injury to soft tissue and that, on balance, the evidence establishes that the plaintiff no longer has any problem with her back.

3. In my view, the submissions of the plaintiff should generally be preferred on this issue for the following reasons:

1. The Liverpool Hospital notes show that the plaintiff complained of muscle pain in the back but suggest that there were no other injuries: Exhibit A page 1;

2. The general practitioner notes need to be considered for the period 7 January 2015 to 25 May 2015. On 25 May 2015, the plaintiff commenced physiotherapy which continued for some considerable period of time. This would not have been arranged and undertaken unless the plaintiff was having problems. The entries in the period I have indicated in my view support the plaintiff having pain and restrictions in the back, neck and shoulder. The notes refer to the plaintiff having problems with her neck and shoulder and low back and describe a good range of movement which is consistent with the general practitioner reviewing these areas and the plaintiff complaining of them. The entry for 7 January 2015 refers to pain in the right arm and there being a good range of movement in the neck and shoulder, but with the plaintiff taking Nurofen and Panadol. The entry for 23 January 2015 refers to the plaintiff's shoulder, low back and being slightly tender in the back. There is a referral for an x-ray of the plaintiff’s spine on 12 May 2015. There is a reference to neck and back pains in the notes for 12 May 2015. There is a reference to neck and back pains in the entry for 21 May 2015. Overall, I accept that the medical complaints soon after the accident support the plaintiff's evidence as to her injuries;

3. The physiotherapy notes report the plaintiff having good progress in 2015. However, the plaintiff is prescribed Lyrica for pain and there are later references to the plaintiff having pains in her back and neck: see 14 September 2015, 18 August 2017, 10 September 2017, 18 September 2017, 20 October 2017, 27 October 2017, 8 November 2017, 24 January 2018, 7 August 2018, 20 September 2018, 4 October 2018 and 29 November 2018. There are admittedly gaps in the notes but they in my view are consistent with the plaintiff having problems in the three areas she indicates;

4. The majority of the medical reports also support the plaintiff having problems. The referral from Dr Datta to Dr Darwish dated 27 October 2017 refers to neck and back pain: Exhibit A page 272. The report of Dr Darwish dated 13 November 2017 refers to the plaintiff having “a longstanding history of lower back pain”: Exhibit A page 385. Dr Truskett found soft tissue injury arising from the accident to the plaintiff’s cervical spine, right shoulder and lumbar spine: Exhibit A page 103. Dr Truskett found no muscle guarding in the lumbar or cervical spine and no verifiable radicular complaint or any neurological signs: Exhibit A page 111. The plaintiff’s medicolegal expert, Dr Maniam, found right shoulder traumatic capsulitis and musculoligamentous strain of the cervical and lumbar spine with aggravation of underlying degenerative disease with no evidence of any neurological compromise: Exhibit A page 67. The radiological material in evidence showed no neurological compromise or bony injury but the plaintiff having substantial degenerative disease including early disc degeneration, marked disc space narrowing, early to moderate spondylotic changes, early osteoarthritis and mild disc protrusions. However, Dr Sacks noted that these constituted degenerative changes of the lumbar spine: Exhibit A page 169. Dr McGroder, the defendant’s medicolegal expert, noted that the plaintiff did not mention her shoulder or neck in the examinations but found musculoligamentous injury to the lumbar spine with ongoing symptoms.

4. In my view, taking into account all of the evidence I prefer the opinion of Dr Maniam. He specifically considered the plaintiff’s shoulder and neck. I also accept that the plaintiff continues to have ongoing complaints in relation to her back, neck and right shoulder although her back problem is the most significant. There is no evidence of the plaintiff having any back or neck injuries prior to the accident. Dr Maniam in his 27 June 2018 report, noted an improvement to the plaintiff's right shoulder: Exhibit A page 70. I find that the plaintiff’s neck and back injuries arose from the accident and are her main complaints of pain. I find the plaintiff’s shoulder restrictions also arose from the accident but have improved and are much less significant. Dr Maniam’s reports are more consistent with the plaintiff’s complaints which I generally accept.

5. The plaintiff has complained of significant other injuries or problems in areas that are clearly unconnected to the accident. These include the significant degenerative changes in the plaintiff’s back disclosed in the radiological evidence; moderately severe bilateral trochanteric bursitis (Exhibit A page 70), complaints of pain to her left ankle on 18 June 2016 (Exhibit A page 131) and pain in her knee joints which resulted in an x-ray (Exhibit A page 126). The plaintiff also had an x-ray of her left knee in 2014 prior to the accident (Exhibit A page 212);

6. I find that the plaintiff currently has continuing pain and restrictions in her lower back and neck and some limited restrictions in her right shoulder. These give rise to pain for which the plaintiff takes Panadol and when it is more severe, Lyrica. These injuries in my view are clearly soft tissue injuries which have not resolved, possibly because of the plaintiff's active job;

7. The plaintiff manages her current restrictions by limiting her heavy duties and by obtaining the assistance of her husband both at her work at The Haven Lodge and in her domestic duties. She also uses analgesia to assist her in her work.

Duty of care and breach of duty of care

129. Liability is not in issue in these proceedings. A breach of duty of care has been admitted by the defendant.

Causation

130. In Zhang v Zayati [2018] NSWDC 385 I stated the following in paragraphs 217-218:

217. Sections 5D and 5E of the Civil Liability Act 2002 (NSW) (CLA) provide as follows:

“5D   General principles

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

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

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

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

218. Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The determination of factual causation under s 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is, a determination that in accordance with the section negligence was a necessary condition of occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and it would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19];Curtis v Harden Shire Council [2014] NSWCA 314 per Bathurst CJ at [18]-[22]; at [197] per Beazley P and at [319]–[324] per Basten JA.

131. Accordingly, the question in the present case is what damage did the breach of duty of care which has been admitted by the defendant cause to the plaintiff.

132. I accept the plaintiff's evidence as to her prior physical position and her lack of injuries to her neck, back and shoulder. Accordingly, as stated above, I find that the personal injuries which I have found above were caused by the accident. This is established by the medical evidence which I have referred to. The negligence which led to the accident was a necessary condition of the occurrence of the harm claimed in that it would not have occurred absent the breach of duty of care.

133. In my view, causation is established for the injuries I have found.

Contributory negligence

134. There is no pleading of contributory negligence.

Damages

Non-economic loss

135. The plaintiff has not satisfied the impairment threshold of greater than 10% which allows for an award for non-economic loss under MACA. I will consider the other heads of damage claimed.

Past out-of-pocket expenses

136. The parties agreed that the defendant has a defence under s 83 of MACA in relation to $3,442.67 of past medical and related expenses. It was agreed that there were other past out-of-pocket expenses which were claimable of $2,952.20 in addition to the s 83 expenses. I allow that amount.

137. The plaintiff makes a claim as a lump sum for past analgesia of $750. The plaintiff's evidence is that she has frequently taken Panadol and Lyrica, where necessary. I accept that evidence. The medical evidence also shows that the plaintiff's general practitioners have prescribed her Panadeine Forte, Lyrica, Voltaren Rapid and Voltaren on occasions. A number of the prescriptions for Panadeine Forte occurred prior to the accident. There are frequent mentions in the medical notes to the plaintiff taking Panadol and Nurofen. The plaintiff’s husband gave evidence that he has bought her Panadol weekly.

138. Having regard to all of this evidence, in my view the amount of $750 for past out-of-pocket expenses relating to analgesia is reasonable and established and I allow it.

Future out-of-pocket expenses

139. I consider the various claims of the plaintiff for future out-of-pocket expenses.

140. The plaintiff claims consultations with a general practitioner four times per annum at $80 per visit to age 65 (17 years) totalling $5,642.65. In my view, having regard to the plaintiff’s longstanding problems since the accident, it is unnecessary for her to visit a general practitioner four times per annum for the period claimed. In my view the plaintiff should visit her general practitioner as needed for prescription painkillers or if she has particular problems with her injuries. I would allow $2,000 as a lump sum under this head of claim.

141. The plaintiff claims consultations with an orthopaedic surgeon two times per annum at $200 per visit for five years totalling $1,780.77. In my view, this is excessive. I would allow the plaintiff one review by an orthopaedic surgeon. I would allow $200 under this head.

142. No submissions were made in relation to hydrotherapy and water-based exercises and I do not allow any amount under this head. I also do not allow any amounts as claimed in the plaintiff’s particulars for MRIs of the cervical spine, right shoulder or lumbar spine or an ultrasound guided injection to the plaintiff's right shoulder. Although these were referred to in Dr Maniam’s first report, they were not mentioned in his second report which was considerably later. The evidence also establishes that the shoulder has improved.

143. The plaintiff claims the equipment referred to in the appendix to Ms Goron's 2018 report: Exhibit A page 99. The various equipment amounts to $726 and there are recommendations for replacements of some items. In relation to the replacements, in my view there should be some discount for the possibility of the replacements not being needed, in accordance with Avopiling Pty Ltd v Bosevski [2018] NSWCA 146. I would allow $1,000 under this head.

144. Ms Goron states that the plaintiff would benefit from occupational therapy intervention to provide education on energy conservation and pacing, back care techniques and adapted equipment use. She estimates the cost to be $1,440 plus GST. Ms Goron's report was tendered by both parties. I accept the evidence on this issue and allow $1,584.

145. Ms Goron also recommends an exercise physiology assessment in relation to her right shoulder and back at a cost of $140: Exhibit A page 98. I allow this amount.

146. Mr Buddle recommends a vocational guidance program. I see no requirement for this in the light of the plaintiff’s current employment circumstances.

147. The plaintiff makes a lump sum claim for $7,500 for future analgesia.

148. The plaintiff’s evidence is that she takes Panadol to cope with the pain and Lyrica when it is severe pain. In my view, some discount should be allowed for the possibility that the plaintiff’s pain will improve following the assistance from the occupational therapist and the exercise physiologist as well as improvements in the plaintiff's condition. I would therefore allow $6,000 under this head. Clearly, having regard to the longstanding nature of the plaintiff’s pain, a considerable amount should be awarded under this head.

Past economic loss

149. As indicated above, I accept that the plaintiff lost one week’s wages and I allow $320. There is no claim for past superannuation.

Future loss of earning capacity

150. The factual findings which I have made above show that the plaintiff has actually lost no wages as a result of her injuries apart from the one week after the accident.

151. The plaintiff has given extensive evidence in relation to her pain continuing in her neck, low back and, to a lesser extent, her shoulder and the difficulties which this has caused her in her work. I accept that the plaintiff is given assistance by her husband with the heavier aspects of her work and that previously she had been given assistance by other workers with such tasks before her husband started working at the hotel. However, I have also found that the plaintiff has understated what she does in her job. The plaintiff seeks a lump sum buffer for future loss of earnings and superannuation in the sum of $100,000.

152. The award of damages for future loss of earning capacity is governed by s 126 of MACA. Section 126 of MACA provides as follows:

“126   Future economic loss—claimant’s prospects and adjustments

(cf s 70A MAA)

(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)  When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

153. In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]

“[79]  I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.

[80]  Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72 ; (1981) 150 CLR 402 (at 412).

[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.”

154. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated as follows at [6]-[9]:

“[6]  The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:

84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act , when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

[7]  The award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess” reflects the proposition that, to paraphrase, the want of precise evidence “does not necessarily result in non-recovery of damages”: New South Wales v Moss [2000] NSWCA 133 ; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant’s complaint about the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is “necessarily impressionistic”; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).

[8]  While, as Giles JA said in the Nominal Defendant v Lane (at [67]), “s 126 is presumably intended to promote intellectual rigour”, the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.

[9]  The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.”

155. Basten JA stated the following at paragraphs [27]-[30]:

“[27]  In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:

The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.

To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.

[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).

[29]  Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for “vicissitudes” which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:

Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that “the events concerned might have occurred but for the injury”. There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).

[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a “buffer”, without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]–[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O’Neill [2011] NSWCA 361 at [67]–[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA).”

156. Macfarlan JA stated as follows at paragraphs 66-67:

“[66]  I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.

[67]  It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for “the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future” (at [2]).”

157. Accordingly, it is clear that a buffer for loss of future earning capacity may be awarded where the earning capacity of the plaintiff has been reduced but its extent is difficult to assess. An amount may be given even where there is a “smallish risk” that the plaintiff may suffer economic loss in the future as a result of a loss of capacity to earn income.

158. In the present case I take into account:

1. The plaintiff’s native language is Spanish;

2. She has poor English language and written skills;

3. She gave her evidence through an interpreter;

4. The plaintiff has always worked in manual type jobs;

5. She is given assistance in her current job by her husband;

6. I have found that she has difficulties undertaking heavier tasks at work which she leaves to her husband;

7. She has continuing problems with her back and her neck and to a lesser extent her shoulder.

159. In my view, having regard to these matters and the medical evidence, there has been unquestionably a reduction in the plaintiff’s earning capacity. At present, this has not resulted in a loss of wages except straight after the accident.

160. The evidence shows the plaintiff is highly regarded by her employer. However, the statement evidence suggests that the extent of the plaintiff’s limitations may be kept to some degree from her employer.

161. In my view, the evidence establishes that there is some risk that the plaintiff would have difficulty obtaining other manual employment if her employment in her current job ceased. As Mr Buddle in his report establishes, the plaintiff has limited vocational opportunities. Although the plaintiff has been in her current job for some time, her ongoing personal injury problems pose a risk to her long term continuing employment.

162. The plaintiff seeks $100,000 as a buffer. The defendant says that no amount should be awarded primarily because he has a different view in relation to the plaintiff's alleged injuries.

163. But for the accident, in my view the plaintiff’s most likely future circumstances would be that she would have sought to increase her hours of work and probably left Star Linen when another appropriate job opportunity arose and her youngest daughter was older. This opportunity would likely be her current job where she would work about 20 hours per week as her husband works full-time.

164. Taking into account all of these matters and the evidence as a whole, in my view the amount of $100,000 is too high having regard to the plaintiff's extensive work history with her current employer after the accident. I would allow an amount of $50,000 as a buffer under this head for the risk that a loss of earnings and superannuation may occur in the future.

Past domestic assistance

165. No claim is made for data past domestic assistance pursuant to MACA.

Claim for future commercial care

166. I refer to my findings above in relation to the plaintiff's current position. The occupational therapy evidence establishes that the plaintiff undertakes a number of domestic duties such as cooking, some shopping, and some laundry duties. The plaintiff's evidence is that her husband undertakes all other domestic tasks. In paragraph 40 of her statement, the plaintiff states that she now relies on her husband Norman to complete the domestic tasks around the home, in particular, the heavier aspects. She adds: “However, as a result of his own employment commitments, Norman is unable to fulfil the entire need for assistance as created by the accident”.

167. In paragraph 41, the plaintiff said she is not sure how much longer her husband can continue to assist her: Exhibit 2. In her husband's statement, he says in paragraph 20: “I try and assist with as much housework as I can, particularly with the heavier tasks such as vacuuming and with the dishes. However, I work full-time and as such, many of the domestic tasks are just neglected as I do not have the time.”

168. Mr Bereche's statement about undertaking the dishes seems to be generally consistent with Ms Goron's report: Exhibit A pages 90-91. However, the report has the plaintiff undertaking some hand dishwashing and Ms Goron expresses the view that the plaintiff's neck, back and upper limb range of movement was assessed by her to be adequate for performing short sessions of dishwashing and drying either by hand or a single load in the dishwasher.

169. The plaintiff seeks 2.5 hours of commercial assistance as recommended by Ms Goron: Exhibit A page 97. This is in the areas of mowing, cleaning, laundry, shopping and spring cleaning, including window washing. The rate sought is $46.94 per hour as stated by Ms Shearer: Exhibit A page 49.

170. The court must consider the need for future commercial care even where it has been recommended by the occupational therapists. Dr McGroder states that no amount for future care is warranted: page 7 of his second report.

171. In my view, the question is whether there is a need for the commercial care claimed. In Miller v Galderisi [2009] NSWCA 353, the Court of Appeal set aside an award of damages for commercial domestic assistance where it held that there was no evidence that the gratuitous assistance being provided to the plaintiff would cease. The Court of Appeal held that there was no evidence that commercial care was necessary. The Court of Appeal in Galderisi at [18] referred to “a need for commercial domestic assistance likely to arise in the future”.

172. See also White v Benjamin [2015] NSWCA 75 at [85]-[88].

173. In Smith v Alone [2017] NSWCA 287, Macfarlan JA (with whom Meagher and White JJA agreed) considered in detail the principles relating to commercial care and assistance: at [72]-[78]. In Smith, Mafarlan JA referred to asking the question whether commercial care was “necessary” (at [73]) and whether commercial care would be “needed in the future”: at [75]. At [77] his Honour stated that he considered that the appellant in that case had established “a need for commercial care and assistance”.

174. In the light of the evidence, has the plaintiff established a need for commercial care? The evidence establishes that the plaintiff’s husband undertakes most of the domestic duties and the plaintiff undertakes some limited duties. The plaintiff has a young daughter who may assist with domestic duties as she gets older. In my view, paragraphs 40-41 of the plaintiff's statement do not support the granting of future commercial assistance as sought. The factual position here is quite different to that in Smith v Alone, where the persons providing assistance did not live with the plaintiff. However, the statement of Mr Bereche in paragraph 20 does in my view provide some assistance by indicating that the domestic tasks are just neglected as he does not have time to do them.

175. There is only need for care to a reasonable level. The evidence is slight on this issue.

176. Taking all of the evidence into account, in my view some award should be given as the evidence establishes that some domestic tasks are “neglected” by Mr Bereche. The defendant submitted that I could not be satisfied as to the amount. In my view, the recommended amount of 2.5 hours by Ms Goron which the plaintiff says should be awarded until the plaintiff is 75, needs significant discounting. I would allow one hour of commercial care per week (which may well be utilised on a fortnightly or monthly basis for more hours) on the evidence. This amounts to $46.94 times a multiplier of 753.6 which amounts to $35,373.98. I do not think the need for a greater award for future commercial care is established on the evidence. The amount allowed would pay for a thorough cleaning of the house, including of bathrooms or a spring cleaning or the cleaning of windows, on an infrequent basis. This would deal with the problem of Mr Bereche’s cleaning neglecting certain tasks.

Disposition

177. Accordingly, I would allow the following:

Past out-of-pocket expenses	$3,702.20
Future out-of-pocket expenses	$10,924.00
Past economic loss	$320.00
Future loss of earning capacity (including lost superannuation)	$50,000.00
Future commercial care	$35,373.98
Total	$100,320.18

178. The parties should check my calculations to ensure they accurately reflect the intended damages to be awarded.

179. Accordingly, I make the following orders:

1. Judgment for the plaintiff.

2. The defendant is to pay the plaintiff the sum of $100,320.18.

3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

4. Liberty to the parties to approach the court if a different costs order is sought to that set out in (3) as above.

5. Exhibits to be returned in 28 days.

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Decision last updated: 15 March 2019