Polsen v Hearnshaw & Insurance Australia Ltd, trading as NRMA Insurance

[2016] ACTMC 2

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Polsen v Hearnshaw & Insurance Australia Ltd, trading as NRMA Insurance
Citation:	[2016] ACTMC 2
DecisionDate:	26 April 2016
Before:	Magistrate Dingwall
Decision:	See [148]
File Numbers:  CS 1254 of 2014

IN THE MAGISTRATES  COURT            )          NO CS 1254 OF 2014

AT CANBERRA IN THE  )  

AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:

CHRISTINE MARY POLSEN

Plaintiff

AND:

RUTH JEUM-YOUNG HEARNSHAW

First Defendant

AND:

INSURANCE AUSTRALIA LTD, TRADING AS NRMA INSURANCE

Second Defendant

Reasons for Decision of Magistrate Dingwall

Delivered on the 26^th day of April 2016

1.   This action was commenced by Originating Claim filed in the Supreme Court of the Australian Capital Territory on 15 January 2014. The claim is for damages for personal injury caused by the first defendant’s negligence.

2.   On 3 November 2014 the Supreme Court ordered that the proceeding be transferred to the Magistrates Court of the Australian Capital Territory. It ordered that the costs of and incidental to the application, save for the Court appearance on 27 October 2014, be reserved. It ordered that the plaintiff pay the defendant’s cost of the Court appearance on 27 October 2014.

3.   The claim arises out of an incident which occurred on 31 January 2011 when a motor vehicle being driven by the first defendant collided with the plaintiff and her mother, both of whom were pedestrians.

4.   At the time of the accident, the first defendant was in the process of parking her motor vehicle in a car park off Challis Street, adjacent to the ACT Road and Transport Authority vehicle inspection station in Dickson, in the Australian Capital Territory. Instead of stopping her vehicle in the parking bay in which she was intending to park, the first defendant caused the vehicle to continue forward over a gutter and onto a walkway. At the same time, the plaintiff and her mother were walking along the walkway and the first defendant’s vehicle collided with them. As a result, they were injured.

5.   The second defendant is the authorised third party insurer of the vehicle driven by the first defendant.

6.   The defendants have admitted liability. However, they deny that the plaintiff suffered the injuries and disabilities alleged in the statement of claim. They further deny that the plaintiff reasonably required the treatment from the health professionals alleged in the statement of claim. They also deny that the plaintiff sustained the loss or damage alleged in the statement of claim, or that she sustained any loss or damage at all.

7.   Accordingly, the matter comes before the Court for assessment of damages only.

Plaintiff’s Background

8.   The plaintiff was born in 1952 in Toowoomba, Queensland. She moved to the Australian Capital Territory in 1964. She completed her high school education in 1970 in Year 12 and, in the same year, commenced employment in the Australian Public Service. She married Mr Michael Polsen in 1972 and in 1973 gave birth to her first child, a daughter. She then stopped working to care for her family.

9.   In 1980, she commenced part-time study for a university degree in librarianship. In 1982, she returned to work in the Public Service. She ceased this work when she accepted a redundancy payment in 1991. She then moved to a job with a private information technology company. She ceased this employment in 2000 because she had developed a repetition strain injury (“RSI”) and tennis elbow.

10.  Between 2000 and 2011, she regularly received remedial therapy treatment and, to a lesser extent, physiotherapy treatment for the RSI and tennis elbow conditions.

11.  In 2007, she developed an unusual and severe form of dermatitis on her hands. Both hands became red raw and, at times, would bleed. The condition affected her sleep. The dermatitis was treated with ointment and tablets and she was prescribed medication to help her sleep.

12.  At the time of the hearing, she was living permanently in Hall in the Australian Capital Territory. She was not in employment, but carried out the work involved in maintaining a home and supporting her husband, who was employed.

13.  At the time of the accident, the plaintiff was fifty eight years of age and was sixty two years of age at the time of the hearing.

Plaintiff’s Evidence

14.  The plaintiff testified that the accident occurred at about 12.30pm on 31 January 2011.She had driven to the Dickson Motor Registry, with her mother, and parked her car nearby. She and her mother then started walking along a pedestrian walkway towards the Motor Registry Office. Her mother was walking approximately half a meter behind, and to the right, of her.

15.  The plaintiff recalls hearing what sounded like a car moving fast in the car park. This attracted her attention and she then observed a car driving into a parking bay which was in line with where she and her mother were walking. The car appeared to be accelerating and looked as though it would hit the gutter. She recalls that she instinctively stepped to her left. The car hit her, causing her to land on its bonnet. She could not recall where on her body the car impacted. The car continued forward and went over another gutter on the other side of the walkway. As it went over this gutter, the plaintiff fell off the car’s bonnet into the gutter. The car became stationary approximately 15 to 20 metres from where she had landed in the gutter. However, she could not recall precisely her body position when she landed on the ground.

16.  She stood up and hobbled over to the front of the car. At this time, she observed her mother lying awkwardly on her back. Her mother appeared to be unconscious and there were people surrounding her, including the driver of the car.

17.  A person with a CPR kit approached from the Motor Registry and attempts were made to revive her mother. The plaintiff was removed from her position near her mother into the shade by employees of surrounding businesses. When the ambulance arrived, the plaintiff was taken inside the Motor Registry. She felt numb and sick. She did not know what was going on, or what she should do.

18.  The plaintiff’s mother was then placed into the ambulance. The plaintiff approached the ambulance and spoke to a man who asked her to write on a piece of paper her mother’s name, address and age. She then attempted to enter the ambulance to travel with her mother to the hospital, however, was told that there was no room for her in the ambulance. She became panic stricken when she could not travel to the hospital with her mother.

19.  At this stage, she had on one shoe, which a lady returned to her, together with her handbag. She was hobbling and her legs were sore, but, at this stage, she was paying little attention to any injuries she had sustained, being more concerned about her mother.

20.  The police arrived at some point. The plaintiff told them that she was unable to drive and needed to get to the hospital. They told her that they would take her. However, they did not immediately take her to the hospital. Instead, they took statements from witnesses before taking her. While waiting to be taken to the hospital, she felt anxious about her mother, not knowing if she had got to the hospital or what was happening in relation to her.

21.  When the plaintiff arrived at the hospital, she was taken into the Emergency Unit and seen by a triage nurse. At this stage, she was “frantic” and crying because she still did not know what had happened to her mother. She was then taken into a family room where her sister, Sally, was present. At this stage, she had not seen her mother, and neither she, nor her sister, had been told anything about their mother’s condition. After the plaintiff’s husband and one of her brothers-in-law had arrived in the room, she was informed that her mother was being cared for and stabilised, but no information was given about her condition. She was also told that her mother was going to be transferred to The Canberra Hospital.

22.  The plaintiff estimated that her mother was at Calvary Hospital for between one and one and half hours before being transferred to The Canberra Hospital. She and her sisters were able to see their mother before she was transferred. She observed her mother to be unconscious, “white as a ghost” and non-responsive when spoken to. At this point she felt “terrified”.

23.  The plaintiff had recounted the incident to her sister, Sally, when she first saw her in the family room and had then recounted the story to her husband and her sister, Sue, when each arrived.

24.  While the plaintiff and her family were at Calvary Hospital, her sister Sally told a nurse that she had been hurt and needed to see a doctor. At this stage, the plaintiff was conscious of injury to herself. Her bottom and legs were sore, particularly while she was seated. A nurse gave her Panadol to relieve the pain. About half an hour after her mother had been taken to The Canberra Hospital, x-rays were taken of her left foot, right knee and the left side of her bottom.

25.  Whilst at Calvary Hospital, after her mother had been taken to The Canberra Hospital, she was given no information about her mother’s condition.

26.  After x-rays had been taken, the plaintiff travelled with her husband to The Canberra Hospital, arriving at between 4.30 and 5.00 pm. Upon arrival, she was feeling “absolutely frantic” because she had no idea where mother was, whether she was still alive or what her condition would be when she got to see her. She was directed to the Intensive Care Unit. Upon arrival there, she found her sisters and other members of the family already there. She was told that her mother was unconscious and was being cared for. After a while, she was able to go in to see her mother. She observed that her mother was attached to a number of machines and was still unconscious. She felt “sick”. She was only permitted to remain with her mother for a few minutes.

27.  The plaintiff and her family remained at the hospital for a couple of hours before she went home. During this time, she lay down on a couch because she was feeling sore. She did not have a meal.

28.  At no time between her mother being taken away in an ambulance and the plaintiff leaving The Canberra Hospital to go home was she given any indication as to her mother’s condition and whether she was likely to live or die.

29.  On the day following the accident, police officers interviewed the plaintiff and obtained her statement in relation to the matter. She then went to the hospital to see her mother. She remained there until dark. She was able to see the mother for brief periods on a couple of occasions. Her mother remained unconscious. The plaintiff was not given an opportunity to speak to a doctor and received no information about her mother’s condition or prognosis. Throughout this time, she was scared, not knowing whether her mother would wake up and what her injuries were.

30.  When the plaintiff returned home, she was feeling sore. She could not sit nor walk properly. She preferred to lie down rather than sit. She noticed bruising had developed on her legs, including a large bruise below, and to the rear of, her right knee, and scratches on her left arm.

31.  On the next day, she again went to see her mother in hospital. She remained until about lunchtime. Her mother was still unconscious. She again was given no information about her mother’s condition, nor did she speak to a doctor.

32.  The plaintiff’s mother remained in the Intensive Care Unit for about four days. She was then moved to a head trauma ward, where she remained until 15 May 2011. While she was in that ward, the plaintiff visited her frequently, daily initially and then every few days. She was informed that her mother had sustained a left sided brain injury and had undergone a knee operation. The brain injury had resulted in dysphasia, causing her problems with speech and memory.

33.  While her mother was in the trauma ward, the plaintiff experienced feelings of guilt because she had been with her mother when the accident occurred and she worried that her mother would not get any better.

34.  On 15 May 2011, the plaintiff’s mother was moved to a high care unit in a nursing home. She initially required help getting in and out of her bed, showering, dressing and generally attending to her self-care. At the time of the hearing, her mother had improved to the point where she was able to dress herself, walk about using a frame and eating her own meals. She still had some problems with her speech - using wrong words, at times had difficulty with her understanding and tired very quickly.

35.  To the best of the plaintiff’s recollection at the time of the hearing, as result of the accident, she sustained scratches on, and soreness in, her left forearm. She sustained bruising to her right leg which was “very sore”. This persisted for a number of weeks. She sustained an injury to the area of her coccyx which was also “very sore” and required some physiotherapy treatment. The soreness persisted for some months. Her left ankle was very sore and required strapping for a few weeks. She also felt soreness in her left hip and headaches, which also lasted for a few weeks.

36.  During the period of three to four weeks after the accident, the plaintiff was unable to do housework, drive or do the shopping. During this time, her husband attended to the housework and would drive her wherever she needed to go. He would either do the shopping himself, or take her with him to tell him what was needed, while he pushed a trolley.

37.  She was unable to do any gardening until a few weeks after her mother had moved to the nursing home. Ultimately, she forced herself to go outside and do some gardening. Her husband did the gardening during the period that she was unable to do it.

38.  The plaintiff was able to resume driving in May 2011, after her mother had been transferred to the nursing home. She limited her driving to the one kilometre journey to her local shops and return. She commenced driving to her mother’s nursing home sometime later. This was the extent of her driving for a few weeks. She limited her driving to this extent because her bottom was still sore and hurt when she drove, and because she was fearful of being in a car. Whilst in a car, she felt her heart racing, her chest would get tight, she would clench her fists and sweat. These responses were heightened when she was in a car park, especially a multi-storey one, when she heard the screech of brakes and when cars suddenly pulled out in front of her.

39.  By the time of the hearing, she was able to drive into car parks, but only if she absolutely had to, and not in peak hour traffic. She was then driving longer distances than just to her local shops. She would drive to her mother’s nursing home and her daughter’s house, where her quilting group met.

40.  Prior to the accident, the plaintiff’s main hobbies and interests were knitting, sewing and quilting. She enjoyed these because she was able to make things for her family. She would engage in one or of these activities each day. She did a lot of her work on her own but also attended sessions with a group of her friends to do quilting. This group would meet once a month and, occasionally, at other times. She also attended meetings of the Canberra Quilters a couple of times each month. The morning meetings lasted for a whole morning and the afternoon ones for two to three hours. The meetings involved each participant bringing along their work and, whilst sewing, discussing patterns, fabrics and colour mixes.

41.  The plaintiff was unable to resume her knitting, sewing and quilting activities for a couple of years after the accident. During this period, she would attend the meetings she had previously attended, but would just sit in the group without doing any work. As at the date of the hearing, she was still attending the quilting meetings but had to limit herself to working with simple, basic patterns. She was unable to work with more complex patterns because she found that due to difficulties she had with her concentration, she was unable to carry out the mathematics involved in quilting, which required her to calculate how much fabric was needed and use multiplication. Similarly, with her knitting she found that she was unable to read patterns and she would make mistakes, causing her to pull the knitting out.

42.  As at the date of the accident, the plaintiff had three grandchildren, aged 11, nine and one. The 11 and nine-year-olds would be dropped off each morning by their mother at the plaintiff’s home. The plaintiff would then take them to school and would pick them up from school on the days that their mother was unable to do so. She would also have them with her whenever they were sick during school terms and during school holidays. This routine stopped completely after the accident.

43.  Prior to the accident, the plaintiff had experienced no problems with driving a car – she enjoyed doing so. She also had never experienced any difficulties performing house work, gardening, quilting, knitting, sewing or caring for her grandchildren.

44.  After the accident, the plaintiff became hypervigilant. She would be frightened by sudden noises, such as a phone ringing as she was walking past it, if her husband dropped his work boots or someone walked up behind her without her knowing. She developed a hatred of car parks. She also found that her ability to concentrate had diminished, with the result that she stopped reading books and was only able to browse articles and magazines.

45.  After the accident, she attended appointments with doctors, counsellors, a psychiatrist and a physiotherapist. In 2011, her husband drove her to her appointments with doctors, the psychiatrist and a physiotherapist, but not her appointments with counsellors.

46.  In 2012, she attended appointments with doctors, counsellors and a psychology practice. Generally, her husband drove her to these appointments and occasionally she would drive herself and her husband would meet her afterwards to make sure that she was alright.

47.  In 2013, she attended appointments with doctors, counsellors and psychologists. Her husband drove her to the first few appointments with one psychology practice; otherwise she drove herself to the various appointments.

48.  In 2014, she continued seeing her general practitioner, counsellors and psychologists. By this stage, she was able to drive herself to the appointment.

49.  In 2015, she only consulted a psychiatrist in Sydney. Her husband drove her to the appointment.

50.  The plaintiff’s appointments for physiotherapy in 2011 related to her sore coccyx. She was treated with massage and heat packs.

51.  On 4 February 2011, she consulted her general practitioner Dr Morton, in relation to the psychological effects of the accident upon her. She was referred to a psychiatrist, Dr Tym, who diagnosed Post Traumatic Stress Disorder (“PTSD”). He treated her with Eye Movement Desensitisation and Reprocessing (“EMDR”) therapy. This helped her to be able to discuss the accident without “falling apart”.

52.  In June 2011, she commenced seeing Ms Linda Jelfs, a counsellor. She saw her for one hour on about eight occasions. Ms Jelfs gave her visualisation exercises designed to help her cope with the psychological problems she was experiencing. She found these to be beneficial.

53.  The plaintiff consulted Dr Morton on a number of occasions in 2011. She found that Dr Morton assisted her by talking with her about her problems and providing treatment.

54.  In 2012, the plaintiff attended upon a remedial therapist for treatment of problems she was experiencing as a result of the accident. The treatment involved relaxation massages.

55.  In October 2012 and January 2015, the plaintiff attended upon Dr Patricia Jungfer, Consultant Psychiatrist, for medico-legal examinations.

56.  In November 2012, the plaintiff commenced treatment with Ms Rowena Cappelen. By the time of the hearing, she has seen Ms Cappelen for an hour on about 10 occasions. Ms Cappelen taught her coping strategies for when she experienced anxiety attacks, the symptoms of which were a tightening feeling in the chest, racing heart, clenching of her hands, sweating and crying. These attacks were not regular but could happen at any time, depending on the surrounding circumstances. At times they occurred once a month, at other times less frequently. On average, they occurred once a month. She was still experiencing these attacks at the time of the hearing. She found the treatment provided by Ms Cappelen to be beneficial. She intended to continue seeing Ms Cappelen if the need arises in the future, but, at the time of the hearing, she had no present expectation of seeing her.

57.  At the end of July 2013, the plaintiff witnessed a motorcycle accident. As a consequence of this, she found that she was “shaking all the time” and did not want to drive her car because she had again become “totally uncomfortable” and nervous when travelling in a car. She went to see Ms Virginia Chambers, Consultant Psychologist, for treatment. She saw Ms Chambers on about 15 occasions. She intends to see Ms Chambers in the future if the need arises.

58.  In February 2013, the plaintiff travelled to Darwin because her daughter was then in an intensive care unit. She remained in that unit for three months. The plaintiff remained in Darwin for four and half months caring for her newborn grandson for the whole time that his mother was in hospital, and then caring for him and supporting her daughter after her discharge from hospital. While her daughter was in hospital, the plaintiff provided all the care needed by her grandson. This included feeding, bathing and dressing him and taking him for walks.

59.  After the plaintiff returned from Darwin, the psychological condition became worse. She largely remained in her home for about six weeks, feeling unable to go anywhere, see anyone or engage in any activities. After about six weeks, and after witnessing the motorcycle accident referred to above, she consulted Ms Cappelen. She had seen Ms Cappelen before going to Darwin and had consulted her by telephone while she was in Darwin. Ms Cappelen resumed EMDR therapy.

60.  From June 2011 up to the date of the hearing, the plaintiff was taking prescribed antidepressant medication daily. Her understanding was that she would continue to take this medication for as long as required and there had been no discussion with Dr Morton or Dr. Jungfer suggesting that she would stop taking it. Indeed, she had been told by both doctors that, if her condition worsens at times, the dosage will be increased for a time and then reviewed.

61.  As at the date of the hearing, the plaintiff said that she had good days and bad days when she feels very anxious and nervous. She still felt apprehensive when travelling in a car in peak hour traffic, when other motorists cut in in front of her car or did silly things and when trying to park in a car park.

62.  She was concerned that she will not get any better and will have to remain on antidepressants for the rest of life. She was also concerned that the condition will at times prevent or restrict her driving and that that situation will continue for the rest of her life or will get worse.

63.  At the time of the hearing, the plaintiff had five grandchildren aged 17, 15, six, four and two. She only occasionally engaged in activities with the six and four-year-old. She engaged in some babysitting of the two-year-old. This was mainly at night, when her husband was available to baby sit with her

64.  In cross-examination, the plaintiff agreed that the EMDR treatment she had received from Dr Tym in March 2011 had helped her in trying to deal with the symptoms of PTSD, resulting from the accident. She said it had helped her in dealing with flashbacks to, and memories of, the accident itself. She agreed that, to that extent, the treatment was successful.

65.  She also agreed that, after attending for physiotherapy treatment for about a month to six weeks in respect to pain in her right buttock, the symptoms related to that area had resolved. She also agreed that, by that stage, she also had no pain in her left ankle and right leg. She further agreed that, by the time she saw Dr Le Leu in October 2013, she was able to walk normally and was back to a normal level of activity from a physical, but not a psychological, viewpoint.

66.  She agreed that she probably had told Dr Le Leu that she and her husband have a large house and garden, which she looked after, and that her grandchildren would visit and keep her active and busy. She further agreed that she told him that she could do her house work and had no difficulty with anything around the house, had no difficulty picking up her grandchildren and worked in the garden. In making this concession, she commented, in effect, that her capacity in these respects did not mean that the quality of her work was what might be expected. In re-examination, she explained that she did not believe she kept her house anywhere as clean and tidy as she had before the accident.

67.  Further in her cross-examination, she agreed that she was fairly active in doing some things around her home. In this regard, she agreed that in November 2013 she attended Calvary Hospital with a lower back complaint. She said this resulted from her trying to take down a curtain which had been newly fitted, instead of waiting for her husband to come and do it. She also agreed that there had been occasions when she had suffered a sore back when cleaning her house and her husband’s uncle’s house.

68.  The plaintiff agreed that she had seen Dr. Jungfer on two occasions, the first being in October 2012 – some 18 months after the accident. She agreed that she had told Dr. Jungfer in October 2012 that she was finding that her memory was not good, that she had to check and redo things, had been unable to continue her quilting activities because she had lost her creative urge and had difficulty carrying out the necessary mathematics. She agreed that when she saw Dr. Jungfer in October 2012, she had said that more recently she had done some very simple knitting and sewing, which she described as very basic, but still found that she made mistakes and had to pull her work apart. She agreed that, as at the date of the hearing, she had been engaged in sewing and knitting at this level for some time. She agreed that she had also recommenced her quilting work but, again, not to the same level as before the accident. She said she had not done any quilting for 12 months after the accident and had returned to it in 2012. She also agreed that she had told Dr. Jungfer that she was then able to complete her normal “instrumental” activities of daily living and, when spending time with her family, was able to enjoy their activities.

69.  She further agreed that she had travelled to Darwin in February 2013 to assist her daughter, who had given birth to a child and had then developed a serious medical condition. She said she, her husband, her son and another of her daughters had gone to Darwin. Towards the end of February 2013, her husband, son and daughter had left Darwin and she remained to help her daughter and grandson. She estimated that she remained in Darwin for a further three and a half months, during which time she was responsible for the care of her grandson on her own and also provided support to her daughter. Although her daughter’s partner was also in Darwin, he was working and had been quite psychologically traumatised by her daughter’s serious illness.

70.  The plaintiff agreed that she saw Dr Saboisky, Consultant Psychiatrist, at the request of the defendants’ lawyers, in July 2013, about six weeks after her return from Darwin. She agreed that on that occasion, when discussing her stay in Darwin and her reason for being there, she had said “I’ve done good”. She agreed that, in relation to her psychological problems at the time she saw Dr Saboisky, she had told him that she got anxious and panicky in specific circumstances; that she was okay 80% of the time but any sudden loud noises could cause her to over react, causing her to scream, jump or shake; that she felt nervous when driving; that she got anxious about parking in the area where the accident occurred and that she was fully capable of doing all the activities of daily living but had trouble concentrating.

71.  She was asked about other matters that Dr Saboisky reported her as saying but could not recall the relevant statements because she had been somewhat upset when he had asked if she had ever been raped or assaulted. However, she did not deny that she may have said the things reported by Dr Saboisky.

72.  The plaintiff agreed that she had seen Dr Morton on six occasions between February 2014 and January 2015. She agreed that only two of these visits directly related to her psychological condition resulting from the accident, but stated that on each occasion Dr Morton would enquire about her psychological well-being and would provide a relevant script as needed, which was about every six months.

73.  She also agreed that she received remedial massage on seven occasions between November 2011 and October 2012 for complaints of pain in various parts of her body resulting from her activities whilst gardening, packing boxes, cleaning her mother’s house, and caring for her daughter and grandson in Darwin.

74.  I consider the plaintiff to be honest and genuine. She made no attempt to exaggerate her symptoms. I accept her evidence as to the physical and psychological effects she suffered as a result of the accident.

Evidence of the Plaintiff’s Husband

75.  Mr Michael Polsen is the plaintiff’s husband.

76.  He testified that his wife’s physical and mental health before the accident had been very good. She had been an avid quilter and gardener and had helped look after all her grandchildren. He said that after the accident she had not done any quilting for a couple of years. She was not as avid about her gardening as before and would only tinker around the outside of it, without doing much. She stopped looking after her grandchildren and no longer picked up the two eldest ones from school.

77.  He testified that, before the accident, his wife did the housework. He did very little of it. However, immediately after the accident, he started doing all the housework because his wife was not motivated to do things. The work he performed included cleaning, vacuuming, washing clothes and dishes, ironing, general cleaning, some of the grocery shopping, driving to the shops and driving his wife to appointments, and extra work in the garden. Prior to the accident, he had been working each day from Monday to Friday, and on most Saturdays. After the accident, he had stopped working on Saturdays in order to attend to the housework. He said that, on average, he spent about 12 hours a week doing housework and gardening, which he had not done before the accident. He estimated that this situation lasted for about six to eight months after the accident.

78.  After the initial period of six to eight months, Mr Polsen did less housework and gardening because his wife resumed most of what she had done before the accident. He continued to do the vacuuming and a little bit of cleaning, but not much. At the time of the hearing, he estimated that he would spend about five hours a week doing this.

79.  At the time of the hearing, he was still driving his wife to appointments if they were in a busy area or in the city area. He said she is very apprehensive and nervous about driving in busy areas or car parks. She is no longer confident in a car and is very nervy, cautious and defensive. He said he has had to change his driving patterns so as to avoid situations which caused her anxiety. At times, he feels as though she wants to jump into his lap from the other side of the car.

80.  Mr Polsen testified that before the accident his wife had a very good relationship with her mother but, since the accident, the relationship has become strained. His impression is that his wife feels guilty about her mother’s situation because she feels some responsibility for it.

81.  On the day of the accident, Mr Polsen went to see his wife at Calvary Hospital, after she had rung him and told him about the accident and where she was being taken. When he saw her at the hospital, she was in a panicked state. He saw that she had a large bruise around her knee and upper thigh and another on her backside. His wife’s account of what had happened was sketchy but the main thing that she kept saying was that she could not get to her mother at the scene and saw the ambulance staff applying defibrillation pads to her. She was crying as she spoke about the accident and was clearly traumatised.

82.  Mr Polsen testified that his wife’s mental attitudes changed after the accident. He observed that, every now and again, she would break into tears for no apparent reason. He said sometimes it would happen twice a week, at other times once a week. Some of the things that caused her to react in this way were a siren or fire alarm going off or a book being dropped – any loud noise that she was not expecting. She would have bouts of sadness, sometimes once a week and at other times three times a week. At other times this would not happen for “ages”. At the time of the hearing, these reactions and bouts of sadness were persisting. He said that his wife had become insecure about a lot of things and seeks support for everything. She used to help run his business but was no longer doing this.

83.  Mr Polsen said that, after his wife had attended sessions with a psychologist or counsellor, he noticed improvements it her mental attitudes. He said that the first session after the accident had had a good result and that there was a progressive improvement after each subsequent session. He noted that she was still attending the sessions.

84.  In cross-examination, Mr Polsen was asked whether, before giving his evidence, he had been asked about the domestic help he had provided to his wife after the accident. He said he been asked by a number of people but had never paid a lot of attention to the issue. People who asked him about it included medical practitioners when he attended appointments with his wife and they were asked about what she was able to do and not do. Before the hearing, he had been asked to estimate the number of hours spent providing domestic assistance but had always found it hard to quantify. He said he did not know how one would quantify it exactly without maintaining a diary, which he had not.

85.He testified that the domestic help he provided to his wife was not solely due to her physical injuries. He said that a lot of it had to do with her mental condition. He agreed that she had recovered from her physical injuries after about six weeks but said that it was another six to eight months after that before she was back doing things around the house and garden.

86.When cross-examined about statements Dr Saboisky had reported he and his wife making about her achieving a turning point in respect to her mental condition, Mr Polsen was unable to recall making any statement himself, but was prepared to concede that he may have.

87.I found Mr Polsen to be honest and genuine. He was prepared to concede that in some areas, such as the number of hours of domestic assistance he provided, he did not have a good recollection. Clearly, in providing the estimates he did, he was doing the best he could by casting his mind back to what he was doing some four years prior.

Evidence of Treating Doctors, Psychologists and Physiotherapists

88.When the plaintiff was treated at Calvary Hospital, soon after the accident, she was noted to be distressed about her mother but otherwise orientated and alert. She had a superficial graze to her right forearm ; tenderness and a graze and haematoma to the proximal posterior lateral right lower leg; a bruise to, and marked tenderness in, the distal fourth and fifth metatarsals of her left foot, causing impaired weight bearing capacity; mild tenderness on her left anterior thigh but no wound; tenderness in the area of her left posterior pelvic/proximal femur region, with grazing on her buttock in that area. X-rays revealed no fractures and she had a full range of movement in her arms and legs. She was prescribed analgesics for pain and discharged.

89.The plaintiff attended Dr Morton for the first time after the accident on 4 February 2011. Dr Morton referred her for physiotherapy at Northside Physiotherapy and Sports Centre, where she was treated for a bruised coccyx and left side mid-foot strain. She attended for physiotherapy on three occasions, the last being on 22 February 2011 – three weeks after the accident. The physiotherapist reported that, by that stage, she was improving but still experiencing some pain in her left mid-foot.

90.On 2 March 2011, Dr Morton referred the plaintiff to Dr Tym, Consultant Psychiatrist, for treatment. She advised Dr Tym that, for psychological reasons, the plaintiff was finding it impossible to drive, was a very poor passenger and was having problems with reliving the accident.

91.Dr Tym saw the plaintiff on only one occasion, 4 March 2011. He diagnosed the plaintiff as suffering PTSD which had resulted from the accident. In reaching this diagnosis he noted that she displayed persistent peripheral oscillopsia, the “first salient feature of PTSD”. He also found clear evidence of “the second salient feature of PTSD” which he described as follows –

“... from the time of the incident she has experienced abnormal endlessly-  recurrent experiential (with psychic and physical sensations of fear) iconic-           image and other sensorial memory flashbacks: the flashing-back images were                    of the moment she was hit by the vehicle: of the moment she turned around to   see her mother lying on the road seemingly either dead or unconscious: of the                moment she saw her mother receiving CPR: and of the moment later when                    she first saw her mother in the ICU still unconscious and still connected to   various life-support monitoring and tubing.”

He also found that she had all the other symptoms of PTSD, being uncharacteristic irritability, insomnia, nightmares, inability to concentrate, hypervigilance, exaggerated startle response and feelings of detachment persisting since the accident.

92.Dr Tym treated the plaintiff with EMDR and reported that it had been effective and that, after the treatment, the plaintiff could re-evoke memories of the most frightening moments of the accident in a normal non-experiential way, causing her no physical or psychical distress, and without any flashback images. He reported that her anxiety level had lowered considerably and she had been pleased with the results of the treatment. However, he noted that it would take some time for her to recover her self-confidence and that she would continue to intensely grieve her mother’s then uncertain fate.

93.On 17 June 2011, the plaintiff consulted Dr Morton again. Dr Morton noted that she was very emotionally labile. She complained that she was not coping with life generally and was not at all her usual self. Dr Morton prescribed antidepressant medication.

94.When the plaintiff saw Dr Morton on 27 June 2011, she reported that she was sleeping well, was feeling better and had got out into the garden. Almost a month later, on 25 July 2011, she told Dr Morton that she was sleeping better, but was still experiencing some anxiety. Almost a month later, on 22 August, she told Dr Morton that she was still experiencing some panic, particularly because the criminal proceedings brought against the driver of the car involved in the accident were approaching and she had had to attend interviews with lawyers. When she saw Dr Morton on 19 September 2011, Dr Morton noted that she was coping but reported that she was still having some problems in car parks. She told Dr Morton that she had gone to a quilting meeting. At a consultation with Dr Morton on 20 October 2011, nine months after the accident, the plaintiff was noted to have achieved considerable improvement in her functioning and was driving “OK”.

95.Between 16 December 2011 and 20 November 2012, the plaintiff saw Dr Morton on four occasions for conditions unrelated to the accident. However, on each occasion there seems to been a discussion about her psychological well-being and on three occasions Dr Morton issued prescriptions for antidepressant medication. At the consultation on 27 February 2012, the plaintiff is reported as saying that she still had “freak outs” but was sleeping well and getting her normal life back.

96.On 23 November 2012, Dr Morton referred the plaintiff to Ms Rowena Cappelen Clinical Psychologist. This appears to have been consequent upon a discussion between the plaintiff and Dr Morton about the medico-legal report provided by Dr Jungfer on 18 October 2012, which I will discuss below. In her referral letter, Dr Morton advised that the plaintiff was presenting with a persisting anxiety and hypervigilance following the accident, that she had received EMDR treatment from Dr Tym which had controlled her PTSD to a certain extent, and that her life had been “considerably curtailed and the enjoyment has gone”.

97.The plaintiff was seen by Ms Cappelen on 18 December 2012 and 9 January 2013. In a letter written to the second defendant on 15 January 2013, she reported that, as a result of being involved in the accident, the plaintiff was suffering from an adjustment disorder with symptoms of anxiety and panic. She noted the plaintiff complained of difficulty coping when unexpected things happened, that she was easily startled and experienced shakiness, sweating, crying and heart racing. She further noted that the plaintiff reported feeling anxious when driving a car and avoided peak time traffic, feeling uncomfortable when walking in car parks, avoided taking her mother out of her retirement village, a loss of enjoyment in her activities, spending less time doing her creative projects, a loss of concentration and not getting pleasure from gardening. Ms Cappelen expected that with treatment the plaintiff would experience a reduction of her anxiety and panic and would become more confident when driving and being in car parks and with her mother. Ms Cappelen recommended a further 10 sessions of psychological therapy.

98.The plaintiff was again treated by Ms Cappelen on 29 January 2013 but she then had to travel to Darwin to care for her grandson. While she was in Darwin she had a telephone consultation with Ms Cappelen and, upon her return, had a further three sessions of treatment in July and August 2013.

99.  On 23 August 2013, the plaintiff witnessed a person coming off a motorbike in an accident. As a consequence, she consulted Dr Morton on 4 September 2013 complaining that witnessing the accident had reawakened her feelings of panic and had caused flashbacks to her accident. Dr Morton referred her to Ms Virginia Chambers, Psychologist, and advised Ms Chambers that the plaintiff had previously been treated with EMDR with good results but her condition had been badly exacerbated by her seeing a motorbike rider falling off his bike in front of her a week earlier.

100.The plaintiff was seen by Ms Chambers on 10 September 2013. The next day Ms Chambers wrote to Dr Morton. She noted that the plaintiff’s PTSD had begun with the accident and was reconfigured by her daughter’s hospitalisation in Darwin. She reported that, upon testing, the plaintiff was experiencing symptoms of anxiety in the extremely severe range and of stress in the severe range but, although tearful and distressed, her symptoms of depression were only in the moderate range. She advised that she had commenced EMDR therapy.

101.The plaintiff had a further three sessions of treatment with Ms Chambers between her first treatment and 28 October 2013. Following that, Ms Chambers wrote to the second defendant on 11 November 2013 reporting that the plaintiff was experiencing symptoms of PTSD which had resulted from the accident, was still having flashbacks and bad dreams triggered by cars on the road, was highly anxious, could be seen ringing her hands at times, was often tired and unable to concentrate, was finding normal family life a huge challenge for her and carried irrational guilt over her mother’s injury. Ms Chambers advised that she had been treating the plaintiff with EMDR and mindfulness meditation to reduce her symptoms and to give her self- efficacy. She reported that the plaintiff was progressing but that her injuries were so strong that the EMDR treatment was not yet complete. It her opinion, to return the plaintiff to her pre-accident levels of well-being would require a further five sessions over at least six months.

102.The plaintiff received treatment from Ms Chambers on five occasions between 10 February and 26 May 2014. Whilst being treated by Ms Chambers, she also continued to receive treatment from Ms Cappelen, whom she saw on four occasions between 2 October 2013 and 19 February 2014.

103.On 12 August 2014 the plaintiff consulted Dr Morton. This consultation prompted a further referral to Ms Chambers. In her letter of referral, Dr Morton advised that the plaintiff had had “another family near disaster” and was going back to the post- accident stage with flashbacks. She considered that the plaintiff urgently needed to restart treatment.

104.Ms Chambers treated the plaintiff on 19 August 2014 and then wrote to the second defendant. She reported that the plaintiff’s second daughter had had an unexpected medical crisis that required hospitalisation and that, although the daughter was recovering well, the plaintiff had regressed with flashbacks to the hospitalisation of her mother and the accident. Ms Chambers expressed the opinion that, without the accident, the plaintiff would not be having this extreme reaction to her daughter’s hospitalisation. She requested that the second defendant fund a further five sessions of EMDR.

105.Following this, the plaintiff received treatment from Ms Chambers on six occasions, four in September 2014 and one in each of October and November 2014.

Medico-legal evidence

106.The plaintiff was examined for medico-legal purposes by Dr Stubbs, Orthopaedic Surgeon, on 16 July 2013, at the request of the defendants, and by Dr Le Leu, Occupational Physician, on 22 October 2013, at the request of her lawyers. The primary purpose of both examinations was to obtain reports as to her physical injuries. As it is agreed that these had completely resolved within about a month to six weeks after the accident, it is unnecessary for me to discuss the reports in any detail. Whilst each expressed some views as to the plaintiff’s mental health, neither is qualified in this regard and both deferred to other relevant experts. However, both reported matters stated by the plaintiff which are relevant in determining the course of her mental injury.

107.Dr Stubbs, reporting in May 2011, noted that the plaintiff was then driving again and taking more responsibility and generally seemed to be enjoying her daily activities much more comfortably. However, he did note that she was emotionally labile and was still suffering, at least emotionally, from the accident.

108.Dr Le Leu noted a number of symptoms of PTSD. He noted, in October 2013, the plaintiff as reporting that she was back driving but tried not to drive very far, mainly locally and in Canberra; that she went shopping which was “good” but that she tried to minimise the trips by doing several things each trip; that she was able to do housework and had no difficulty with anything around the house, noting that her husband helped; that she looked after her grandchildren, who kept her active and busy, and was able to pick them up without difficulty; that she had a large garden which she looked after; and that she liked to sew, knit and read but was unable to concentrate on these as easily as she could prior to the accident, in particular, she had problems with the mathematical calculations required for knitting and quilting.

109.Bearing in mind the context of Dr Le Leu’s examination and the evidence of the treating psychologists, the plaintiff’s and her husband’s evidence and the psychiatric opinions in evidence, I am satisfied that Dr Le Leu’s reports about the plaintiff’s capacity to do housework, care for her grandchildren and garden related to physical capacity in these regards, rather than her psychological capacity to undertake the activities.

110.Dr Jungfer, Consultant Psychiatrist, examined the plaintiff for a medico-legal report on 2 October 2012 (18 months after the accident), at the request of her lawyers. Dr Jungfer obtained a very comprehensive history of the accident and the plaintiff’s symptoms following it. The symptoms described by the plaintiff were consistent with what she described in her own evidence and what she had reported to her general practitioner and psychologists.

111.Dr Jungfer diagnosed the plaintiff as suffering Panic Disorder and Adjustment Disorder with anxious mood. These diagnoses were based on the following history taken by Dr Jungfer and her assessment set out in her report –

“In the acute post injury period, Mrs Polsen developed acute recurrent     re-experiencing of the accident, consistent with that of an acute post      traumatic stress disorder. She saw a consultant psychiatrist and received appropriate treatment for the recurrent and re-experiencing events, and these resolved with appropriate treatment. However as time progressed and associated with stress of caring for a now disabled, aged mother, and the stresses associated with the decision making process of placing her mother in care unexpectedly due to the impact of the accident, Mrs Polsen developed some substantive psychological symptoms. She continues to now report panic attacks in association with situations that are unexpected and not those that she feels she can cope with. She describes anxiety, hypervigilance and an excessive startle reaction when being in a car, and reported in the initial period marked avoidance behaviour about driving or being in a vehicle.

“She continues to avoid certain situations that she considers to be risky. Her general level of self confidence and self esteem has been reduced and she reports problems with regards to her creative activities, due to impairments of concentration and attention. Mrs Polsen’s current clinical presentation is consistent with that of an adjustment disorder with anxious mood and the experience of panic attacks. She has a long-standing impairment of sleep, however this appears to predate the accident and does not appear to be related to the accident, although may be exacerbated by the circumstances of the accident.

“Mrs Polsen’s background and developmental history is unremarkable, and is not contributing to the post-accident situation. There is no history to suggest drug and alcohol factors are contributing to her presentation.

“When considering the circumstances of the accident when Mrs Polsen was injured and then witnessed the resuscitation her mother, the development of an anxiety state in this situation is not unexpected. Mrs Polsen has developed predominantly anxious symptoms in the context of the accident. The initial treatment in the immediate post accident period resolved the post-traumatic stress symptoms, although she has been left with residual anxiety symptoms, that of panic symptoms and an adjustment disorder.

“Mrs Polsen has received clinical psychological intervention, although continues to be symptomatic, and one might argue that more tradition (sic) cognitive behavioural intervention rather than that of visualisation therapy may have offered her more targeted treatment to assist with regards to symptomatic improvement.

“When considering the circumstances of the accident and the chronology of her symptoms complaints, Mrs Polsen’s current      psychiatric symptoms are solely as a consequence of the injuries she sustained in the accident of 30 (sic) January 2011. Mrs Polsen’s current symptoms are being maintained by the stress of having a mother who remains unwell and disabled as a consequence of the accident.”

112.Dr Jungfer was of the opinion that the plaintiff would benefit from further clinical psychological intervention, including systematic desensitisation and cognitive behavioural intervention for her panic and anxiety symptoms. She also recommended medication to manage her anxiety symptoms. Her prognosis for the plaintiff’s condition was guarded in view of the length of time during which she had been symptomatic. She noted in this regard that the plaintiff’s mother’s condition remained fairly chronic and that this served as a stressor for the plaintiff’s clinical state. However, she felt that, as the plaintiff had not had a full course of treatment, there may have been a prospect of further recovery.

113.The plaintiff was examined by Dr Saboisky, Consultant Psychiatrist, for a medico-legal report, on 23 July 2013 (two years and six months after the accident). This was done at the request of the defendants’ lawyers. The examination took place after the plaintiff’s return from Darwin, where she had been for about four months caring for her grandson and assisting her daughter.

114.Dr Saboisky’s interpretation of what the plaintiff told him concerning her time in Darwin was that whilst caring for her grandson she had “coped with the vicissitudes of dealing with her daughter’s severe illness”. He noted the plaintiff as saying that she was all right after her return from Darwin and that she had said “I done good”.

115.Dr Saboisky obtained a detailed history of the accident and its effects upon the plaintiff, in the two and a half years after it. He enquired about the plaintiff’s current psychological symptoms. He reported as follows –

“I enquired about any current psychological symptoms. She said she is anxious and panicky in specific circumstances. She said she was ‘OK 80% of the time’ but any sudden loud noises can cause her to over-react. She can scream, jump or shake. She feels nervous driving a car, particularly being in traffic if it is getting heavy. She said she can be very nervous around car parks and about parking. Her husband, Mick, said she is frightened about putting herself in jeopardy. She is particularly anxious about parking at the Dickson and Belconnen shopping precincts. When she is anxious, her heart races, her chest becomes tight, she gets sweaty hands and she shakes. These symptoms can last for several minutes at a time and she may need to sit in the car to compose herself. She becomes anxious in these circumstances most of the time, even if she is a passenger.

“At other times she said she can be totally irrational and she can get upset for silly reasons. She got upset this morning, for example, after it was announced that there was a Royal baby born.

“She is fully capable of doing all the activities of daily living although she did say she has trouble with concentration. She used to quite enjoy doing quilting and patchwork but said that her poor concentration does make it difficult for her to do all the necessary calculations. She tends to do ‘mindless knitting’. She said that her sleep is generally OK although sometimes it is interrupted with initial insomnia or early morning wakening. She doesn’t have any specific dreams or nightmares. Her mood is ‘a bit up and down’ and there is no appetite disturbance.

He also noted that the plaintiff was stressed by the fact that her mother was then in a      high-care aged care facility with significant cognitive impairment.

116.He reported that the plaintiff and her husband stated that she reached a turning point in her emotional state by the middle of 2012 and that, by that stage, she was back to about 70% to 80% of her former self.

117.Dr Saboisky noted that the plaintiff had been prescribed antidepressant medication from June 2011. He also noted that she had received psychological treatment from Ms Cappelen twice before going to Darwin and once since her return, and had had counselling from Ms Jelfs which familiarised her with mindfulness, relaxation and visualisation techniques.

118.Dr Saboisky diagnosed the plaintiff is suffering from an Adjustment Disorder, with mixed emotional features, anxiety and depression. He noted that Dr Jungfer had diagnosed Adjustment Disorder with anxious mood and agreed that that was her main problem by the time of his examination of her. He felt that her prognosis was generally positive, noting that she had functioned extremely confidently looking after her grandson in very difficult circumstances in Darwin over a four-month period. He considered that she had some residual anxiety when in a car. He felt this would be appropriately addressed with psychological treatment and supported her having seven further sessions. He considered it reasonable for her to remain on antidepressant medication for the foreseeable future.

119.It is significant to note that Dr Saboisky examined the plaintiff shortly after her return from Darwin, and before she witnessed the incident in involving a motorcyclist coming off his bike in front of her.

120.The plaintiff was examined again by Dr Jungfer for a further medico-legal report the examination took place on 2 February 2015 – four years after the accident and four months prior to the hearing. Dr Jungfer reported the plaintiff’s description of her complaints and symptoms, as at the date of the examination, as follows –

“Mrs Polsen reports that she is continuing to have some psychiatric and psychological contract (sic) as required although last had any sessions in the November of 2014. She reports that since my last review she was switched to the medication Escitalopram 20mgs per day (she thinks it is this dose) and reports that while she’s not sure it has helped other people have commented that she appears to be calmer and less anxious with medication.

“She reports that persistent symptoms associated with the accident include the difficulties with regards to being in a vehicle and associated with this being in traffic situations. She dislikes being in car parks and will avoid them if possible. In situations such as traffic, car parks she will describe episodes where she will become a very anxious, fearful, her chest will tighten, she will be agitated and may cry. In situations such as traffic, car parks she is hypervigilant and is constantly looking for some form of danger. She describes an abnormal startle response and this is particularly triggered by the hearing of sirens. She reports that some days her driving is better than others. She has modified her driving behaviour for example she will not drive during peak hour and is very careful with regards to the routes she may take. Her husband reported that her behaviour in a vehicle continues to be a significant issue. She is extremely anxious and hypervigilant as a passenger and a very cautious and slow driver. She will actively avoid parking in a car park and if she has a choice will not walk through the car park, that is the shortest route but will walk around it. She would only walk through a car park if her husband accompanied her. He described that she is extremely anxious particularly if there is a vehicle on the left and he has modified his driving behaviour to take into account her anxieties.

“She continues to experience panic attacks particularly if she hears a siren. These panic attacks will be triggered by other forms of high pitch noises such as the smoke alarm going off. She is extremely uncomfortable should she see a motor vehicle accident on the TV and she avoids watching things, where there might be sirens or accidents in those situations.

“She describes the occasional feelings of sadness and anxiety but does not report being pervasively depressed. She is capable of enjoying herself and she does look forward to things. There is no suicidal thinking. The level of initiative and motivation is good.

. . .

She dislikes being in situations such as accident and emergency departments. She has limited contact with her mother and she feels very distressed in her mother’s presence due to the range of her mother’s impairments. She feels that she let her mother down as she was injured on her watch and that the difficulties that her mother has in part are related to her failing to provide adequate supervision. On the other hand she recognises that it was not her fault that the accident occurred but she finds it very uncomfortable or difficult to spend time with her mother because of the recollections that it brings about the accident.

“She does not describe post-traumatic stress symptoms such as intrusive recollections or nightmares. She indicates that she can do her hobbies, her concentration and attention at times is variable depending on what happens with her mindset. She does not have pain or persistent physical difficulties. She describes that the relationship with her husband is good and feels that he continues to be supportive.

. . .

She dislikes having to talk about the accident and she dislikes having to think about the accident. She has not needed to return to the motor registry where the accident occurred and indicated that if it was a situation where she had to visit a motor registry she would attend a different one. She reports that she does the majority of dealings associated with the road and motor service via the internet.

Since my last assessment of her she witnessed a situation where a motorcyclist came off the bike. In response to this she described a significant increase in her anxiety symptoms, increased stress and tearfulness and that she required referral for psychological counselling at this time. This appears to have been in 2013.

. . .

“Mrs Polsen’s interest (sic) include quilting, gardening and maintaining the household chores and she has a regular friendship group. She has returned to her activities although tends to do simpler tasks and needs to motivate herself and push yourself more to do these activities.

. . .

“Mrs Polsen has a network of friends and she maintains contact with those people. She will go out on a monthly basis with friends and will attend a quilting group on a weekly basis. She recognises at times that she has to push herself and motivate herself to do this.”

She reported the plaintiff’s husband’s view of his wife’s situation as follows –

“Mr Poulson described his wife as having changed, she was not her usual self and her old self has not returned. He described her as being very nervous and lacking in self-confidence. He said that tasks that are stressful (sic) she frequently needs support and she was a more capable person prior to the time of the injury. Should her husband be late from returning from work or away she is often very anxious and panicky and will check to see that he is all right.”

121.Dr Jungfer reviewed the treatment notes of Ms Cappelen, Ms Chambers and Dr Morton, as well as Dr Saboisky’s report. She expressed the following opinions –

“Based on the symptoms reported by Mrs Polsen she has an adjustment disorder with anxious mood and panic attacks. While the symptoms at times fluctuate she has a persistent difficulty for panic attacks associated with triggers for these attacks which is associated with motor vehicle accidents or sirens. Mrs Polsen has had substantial treatment, continues to be symptomatic and it is my opinion her condition is a permanent impairment and her condition has stabilised.

As to the future management of the plaintiff’s condition, she said –

“Mrs Polsen should continue with the antidepressant medication, occasionally doses of greater than 20 mgs of Escitalopram are needed particularly in situations of anxiety symptoms and I would recommend a review and reconsideration of the dose of her Escitalopram.

“I also believe that it is appropriate that she have an allowance for further treatment. She should have an allowance for at least another 20 sessions for periods of time where she may have a recurrence or a deterioration of her mental state. The pharmacotherapy is approximately $40 per calendar month and the clinical psychological sessions are approximately $230 per consultation”.

122.In conclusion, Dr Jungfer was of the view that, as a result of the accident, there had been a change in the quality of the plaintiff’s life as she was less engaged in community activities and was required to make more effort and push herself harder to engage in the relevant tasks and activities.

123.There is general agreement on diagnosis between Dr Saboisky and Dr Jungfer. Dr Saboisky was more optimistic about the plaintiff’s prognosis, placing a lot of weight on the fact that she was able to cope with the four months in Darwin. However, Dr Jungfer saw the plaintiff after the motorcycle incident had re-triggered symptoms, and was of the view that her time in Darwin had caused stress which had contributed to the re-triggering of symptoms. Given these factors, I prefer Dr Jungfer’s opinion.

Assessment of General Damages

124.The plaintiff suffered relatively minor physical injuries in the accident, the effects of which in terms of pain and suffering lasted for no more than six weeks. Her psychological injury, starting with the traumatic nature of the accident and its subsequent impact on the plaintiff’s psychological well-being, with its consequent effect on her enjoyment of life, has been very significant and at times debilitating.

125.Counsel for the defendants acknowledged that the plaintiff clearly has an ongoing and underlying psychological condition which affects her functioning, and that over a period of time she has suffered setbacks followed by some, but not complete, recovery, with an underlying emotional lability. He submitted, however, that the fact that she was able to spend four months in Darwin caring for her grandson on her own and later caring for, and supporting, both he and her daughter indicated that she had a reasonable capacity to function. In his submission, what is consistently revealed in the various treating and medico-legal reports is that, while the plaintiff was still having an underlying emotional lability or susceptibility, she was still able to function on a daily basis and that this was the situation from the time of Dr Jungfer’s first examination of her. He accepted, however, that the plaintiffs underlying psychological condition will result in ups and downs, with some flare-ups from time to time.

126.In my view, the weight given to the plaintiff’s foor months in Darwin by Dr Saboisky and Counsel for the defendants in assessing her capacity function, disregards the fact that, while in Darwin, she felt it necessary to have a telephone consultation with Ms Cappelen, upon her return from Darwin she was reclusive for about six weeks and that, not long after being examined by Dr Saboisky, she remained sufficiently psychologically fragile to suffer a serious relapse upon seeing a motorcyclist coming off his motorcycle. Clearly, she was able to attend to the needs of her grandson, driven no doubt by love of family and a sense of duty – both powerful motivators – but I am not satisfied that the four month period at all represented a period of psychological recovery. I am satisfied, on balance, that her condition has been ongoing since the date of the accident, that there have been some periods, starting about six to eight months after the accident, when she was able to function at a level closer to her normal, and that there have been periods between then and the time of the hearing where she has experienced episodes when her symptoms have become more pronounced and adversely affected, to a significant degree, her capacity to function. I am satisfied that this pattern will continue for the rest of her life.

127.I assess her general damages at $125,000.00, $60,000.00 of that sum being in respect of past pain and suffering.

Domestic Assistance

128.On the day of the hearing the plaintiff amended the particulars of her claim for damages for domestic assistance. The amended claim for past domestic care from 31 January 2011 to 1 October 2011 is for 12 hours per week at $35 per hour, and from 2 October 2011 to the date of the hearing for four hours a week at $35 per hour. The claim for the future is for a buffer of $50,000.00 for future loss of capacity to perform domestic services, including assistance and or travel costs of attending medical treatment and care.

129.The amended claim created two areas of contention between the parties.

130.The first related to the fact that the plaintiff was not asked to give any specific evidence concerning the assistance provided to her by her husband over the period from the accident to the hearing. She did give evidence that at various times her husband drove her to medical appointments and elsewhere, and that for the first three to four weeks after the accident her husband attended to the house work and did the shopping on his own or accompanied by her. However, she was not asked to give any evidence as the number of hours and over what periods her husband provided her with domestic assistance. This evidence came from her husband.

131.Counsel for the defendants submitted that, in view of the fact that the plaintiff was not asked to give evidence as to the number of hours and over what periods she required domestic assistance from her husband, I should infer that, had she been asked to give such evidence, it would not have assisted her case. Accordingly, in his submission, I should not accept any claim for domestic assistance beyond that which is supported by the plaintiff’s own evidence. In this regard, he relied on Jones v Dunkel (1959) 101 CLR 298 and the application of that case in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991022 NSWLR 388 (“Commercial Union”). He particularly relied upon the following passages from the judgment of Handley J A at 318 – 319 –

“There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates ‘as the most natural inference that the party fears to do so’. This fear is then ‘some evidence’ that such examination in chief ‘would have exposed facts unfavourable to the party’; see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex Parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.

. . .

“In my opinion the trial judge fell into error in drawing the inference that the endorsement would not have been acceptable to the insured. Counsel for the insured did not ask Mr Ferrarese about this matter either in chief or in reply and did not cross-examine Mr Green on the matter either. Moreover the insured did not call any representative of the broker to establish what view the broker would have taken and what advice it would have given Mr Ferrarese.”

132.In my view, a significant passage in the judgment of Handley J A which precedes those quoted above is the following at 418 –

“In my opinion the court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.”

133.In this case, the plaintiff did call direct evidence as to the number of hours and for what periods she required domestic assistance. This evidence was given by her husband, the person who provided the domestic assistance. She also gave, and tendered, evidence supporting her need for domestic assistance during varying periods after the accident. Accordingly I am not being urged by the plaintiff to draw any inferences favourable to her in respect of an issue about which she was not questioned, as was the case in Commercial Union. I am being urged to act on the direct evidence of the plaintiff’s husband, supported by her evidence and the medical evidence. In these circumstances, there is no basis for drawing a Jones v Dunkel inference.

134.The second area of contention was in relation to the plaintiff’s claim for domestic services to be calculated at $35 per hour from mid 2014. The plaintiff led no evidence as to what was the appropriate commercial rate for the provision of such services at the relevant dates, nor was there any agreement between the parties beyond a rate of $25 per hour. Counsel for the defendants submitted that in the absence of such evidence or concession by the defendants, which was not forthcoming, the higher rate should not be applied.

135.Counsel for the plaintiff conceded that he had led no evidence as to the appropriate rate, but submitted that I could take judicial notice of the fact that from mid 2014 the Supreme Court had been allowing claims for domestic assistance calculated at $35 per hour. He referred me to two judgements of the Supreme Court published in February and April 2015: McFadyen v Jensen & Anor [2015] ACTSC 12 and Papp v Finley & Anor [2015] ACTSC 74.

136.I accept that the rate of $35 per hour for domestic services has been the rate applied by the Supreme Court, whether by agreement or based on evidence, in claims for personal injury litigated in that court from at least February 2015. In my view, the application of this rate in matters before the Supreme Court reflect what has become generally accepted as the reasonable rate. Accordingly, I take judicial notice that it is a reasonable rate to apply from February 2015.

137.The plaintiff’s claim for past domestic assistance relates to two periods. The first period is from 31 January 2011 to 1 October 2011. The claim for that period is for 12 hours per week. The second period is from 2 October 2011 to the date of the hearing. The claim for that period is for four hours per week.

138.The claim for the first period is based on the plaintiff’s husband’s estimation that he spent about 12 hours per week providing the plaintiff with domestic assistance for about six to eight months after the accident. Whilst I found Mr Polsen to be honest and genuine, I am satisfied that his estimate was a reconstruction which he was asked to make many years after the event and without much, or any, notice. I note that, when the plaintiff consulted Dr Morton on 27 June 2011 she had said she was sleeping better and had got out into the garden. Her medical records suggest that this improvement persisted thereafter, save for the periods of setback. In my view, the appropriate award for domestic assistance for the period when the plaintiff required a higher level of assistance is an allowance of 12 hours a week for 20 weeks calculated at $25 per hour. The amount allowed is $6,000.00.

139.I am satisfied that, after the first 20 weeks, the plaintiff’s husband continued to provide domestic assistance by vacuuming, doing some ironing and driving the plaintiff to appointments. The number of hours required each week would have varied depending upon the plaintiff’s mental state from time to time. In this regard, I note that the plaintiff told Dr Saboisky in September 2013 that she had been back to about 70% or 80% of her former self by the middle of 2012. However, I also note that thereafter she suffered three significant setbacks in her condition. I also note that during the four months in Darwin she required no domestic assistance.

140.In my view, the appropriate award for domestic assistance for the period 1 July 2011 to 31 January 2013 (80 weeks) is an allowance of two hours per week calculated at $25 per hour. I have settled on two hours a week as being reasonable in order to allow for the plaintiff’s fluctuating need for domestic assistance over that time. The amount awarded is $4,000.00.

141.I make no award for domestic assistance for the period 1 February 2013 to 31 May 2013, representing the four months the plaintiff was in Darwin and required no domestic assistance.

142.As with the allowance for the period 1 July 2011 to 31 January 2013, I am satisfied that an appropriate award for domestic assistance from 1 June 2013 to 31 January 2015 (80 weeks) is two hours per week at $25 per hour. The amount awarded is $4,000.00.

143.Similarly, for the period 1 February 2015 to date (64 weeks), I allow two hours per week but at $35 per hour. The amount awarded is $4,480.00.

144.Thus the total amount for past domestic services provided to the plaintiff is $18,480. Given that this sum relates to weekly amounts over a period of over five years, I consider it reasonable to allow interest at 4% per annum over that period. I allow $3,820.00.

145.The plaintiff seeks an amount of $50,000.00 as a buffer for future loss of capacity to perform domestic services, including assistance with, and travel costs in relation to, attending medical treatment and care. I note that the plaintiff’s life expectancy was 26.63 years as at the date of the hearing. Her need for domestic and transport assistance will vary over this period. Additionally, her husband will no doubt retire in the not too distant future. This will mean that he will be more available to assist with domestic, gardening and driving activities. I would expect that, even if the plaintiff had not been injured, he would have played a greater role in these areas as a consequence of a normal readjustment of arrangements in these areas following his retirement. I consider an appropriate buffer to be $25,000.00.

Out-of-Pocket Expenses

146.The parties agreed the amount of past out-of-pocket expenses at $12,067.36 and that $3,700.00 of that remained unpaid by the second defendant. I allow $12,067.36 together with $780.00 by way of interest on the unpaid portion.

147.The plaintiff claims $25,363.29 for future out-of-pocket expenses. This relates to future psychological treatment, visits to a general practitioner and medication. Dr Jungfer considered that, in the future, the plaintiff would probably require 20 sessions of psychological treatment and would probably incur medication costs of about $40 per month. I accept this as reasonable. In addition, she will need to consult a general practitioner from time to time. In my estimation, this will probably average out at two visits a year. In my view, in deciding on the appropriate amount to award, it is appropriate to discount for the vicissitudes of life. In addition, because money is being awarded now for future expenditures which will extend over the rest of the plaintiff’s life, it is appropriate to apply the 3% multiplier for a period of 26 years. I award the sum of $14,000.00.

Judgment

148.Judgment will be entered for the plaintiff in the sum of $205,437.36, made up as follows –

General damages  $125,000.00

Interest on general damages                 $    6,290.00

Past domestic assistance  $  18,480.00

Interest on past domestic assistance     $    3,820.00

Buffer for future domestic assistance     $  25,000.00

Past out-of-pocket expenses                $  12,067.36

Interest on past out-of-pockets  $       780.00

Future out-of-pocket expenses  $  14.000.00

Total$205,437.36

149.I shall reserve the question of costs and grant the parties liberty to restore the matter on seven days notice.

P.G. Dingwall

Magistrate