Poole v Zagar
[2021] ACTSC 140
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Poole v Zagar |
| Citation: | [2021] ACTSC 140 |
| Hearing Dates: | 20 July 2020 – 22 July 2020 |
| Submissions Last | 21 August 2020 |
| Received: | |
| Decision Date: | 12 July 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | See [269] |
Catchwords: | DAMAGES – PERSONAL INJURY – Motor vehicle accident – collision – whether or extent to which continuing injuries caused by the collision – whether any injury and disability has subsided |
| or continues | |
| Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 100 |
| Cases Cited: | Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 |
| Carmen Utting v Ben Clarke & Insurance Australia Limited T/A | |
| NRMA Insurance [2016] ACTSC 168 Craig v Silverbrook [2013] NSWSC 1687 | |
| Cressy v Miloriad [2016] ACTSC 303 | |
| Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 Fox v Percy [2003] HCA 22; 214 CLR 118 Friend v Britton [2020] ACTSC 185 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hoblos v Alexakis [2021] NSWCA 126 Ivers v Mehdi [2020] ACTSC 112 Jones v Dunkel (1959) 101 CLR 298 Kelenik v Apostolidis & Ors [2009] VSC 208 Lewis v Woolworths Limited [2018] ACTSC 200 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 Massouras v Kone Elevators [2020] ACTSC 66 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Petrovic v VWA [2018] VSCA 243 Pulling v Yarra Ranges Shire Council [2018] VSC 248 Ryan v Bunnings Group Limited [2020] ACTSC 353 Ryrie v Tanner (No 2) [2020] ACTSC 104 Seseljia v Reardon [2020] ACTSC 167 Stanford v Dermejian [2020] ACTSC 151 State of New South Wales v Moss [2000] NSWCA 133; 54 | |
| NSWLR 536 | |
| Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd | |
| [2019] NSWSC 33 | |
| Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty | |
| Limited (No 2) [2017] ACTSC 88 Utting v Clark [2017] ACTCA 22 | |
Parties: | Jodie Maree Poole (Plaintiff) Mila Zagar (First Defendant) Insurance Australia Group Limited Trading as NRMA Insurance |
| Ltd (Second Defendant) | |
| Representation: | Counsel |
| G Stretton SC with A Costin (Plaintiff) N Nesbeth (Defendant) | |
| Solicitors | |
| Legal on London (Plaintiff) HWL Ebsworth (Defendant) | |
| File Number: | SC 345 of 2019 |
| LOUKAS-KARLSSON J | |
| Introduction |
1. At the age of 29, Jodie Maree Poole (the plaintiff) was involved in a motor vehicle accident.
2. On 9 May 2016, the plaintiff’s car was stationary and in the process of giving way, when her car was struck from behind by the first defendant. The first defendant’s front passenger side hit the rear driver’s side of the plaintiff’s car. The car the plaintiff was giving way to hit the first defendant’s car. The plaintiff’s car was pushed across the
road, where it hit the gutter on the opposite side of the road.
Issues in dispute
3. The parties are agreed in relation to the defendant’s liability. The issues in dispute
relate to quantum only, and are set out by the plaintiff as follows:
(a) The plaintiff’s past and future loss of earning capacity; (b) The plaintiff’s award in relation to general damages; (c) The plaintiff’s future out of pocket expenses; (d) Superannuation loss past and future; (e) Interest; and (f) Domestic assistance. 4. The defendant sets out the central issues as follows:
(a)
The extent of any injuries in the subject accident, and the extent to which any symptoms persist.
(b)
With respect to her economic loss claim, whether, as a consequence of the motor vehicle accident, the plaintiff:
i. Has a loss of earning capacity; and if so ii. Whether it is productive of financial loss; and if so iii. The extent of that loss. (c) The extent of the plaintiff’s entitlement to past and future treatment expenses.
(d)
Whether the plaintiff is entitled to damages for past and/or future domestic assistance and if so, to what extent.
Chronology
5. The plaintiff was born in 1987. As stated earlier, she was 29 years of age at the time of the accident, and was 33 years of age at the hearing of this matter. The plaintiff is now 34.
6. The plaintiff completed her Higher School Certificate in 2004 and a Certificate II in business at the Canberra Institute of Technology (CIT) in 2005.
7. Between 2006 and 2007 the plaintiff was employed in various roles with the Australian General Practice Network and PKF Chartered Accountants.
8. The plaintiff completed her Certificate III in business as trainee through McMillan Staff Development in 2007.
9. In April – November 2007, the plaintiff lived in five different women’s refuges to escape
domestic violence.
10. In January 2008 the plaintiff gave birth to her first child, Zoe.
11. In February 2008 the plaintiff enrolled in an Advanced Diploma of Accounting, but withdrew from the course.
12. In April 2009 the plaintiff gave birth to her second child, Jye.
13. In 2010 the plaintiff completed the MYOB Course online through Leap Learning, but did not obtain a certificate.
14. In 2015 the plaintiff commenced studying at CIT through flexible evening classes, but did not complete the course.
15. In October 2016 the plaintiff gave birth to her third child, Arwyn.
16. The motor vehicle accident occurred on 9 May 2016. The plaintiff attended Ginninderra Medical and Dental Centre immediately after the accident. The plaintiff has been attending this medical practice since this time for appointments relating to the accident.
17. In February 2017 the plaintiff gave birth to her fourth child, Rylie.
18. In July 2017 the plaintiff attended an appointment for an MRI of her lumbar spine.
19. In August 2017 the plaintiff attended an appointment for an MRI of her cervical spine and left shoulder.
20. Also in August 2017 the plaintiff attended an appointment for a SPECT/CT of her neck and lower back.
21. From 4 September 2017 to present, the plaintiff has been attending Ginninderra Family Healthcare in relation to the accident.
22. In October 2018 the plaintiff attended an appointment with Dr Knox, a psychiatrist.
23. On 4 April 2019 the plaintiff attended an appointment with Dr Machart, an orthopaedic surgeon.
24. On 31 October 2019 the plaintiff attended an appointment with Dr Reiter, a rheumatologist.
25. On 19 November 2019 the plaintiff attended an appointment with Dr Brooder, a neurologist.
26. On 12 December 2019 the plaintiff attended an appointment with Dr Prior, a psychiatrist.
27. On 5 July 2020 the plaintiff went to the National Zoo with her former partner Mr Jamie Hogan and their children, where surveillance footage was obtained.
Plaintiff’s Case
28. The plaintiff asserts that the following injuries were suffered as a consequence of the motor vehicle accident:
(a) Neck whiplash injury at C5/6 level; (b) Lower back injury at L5/S1 level; (c) Adjustment disorder with mixed anxiety and depressed mood; (d) Amaxophobia; and (e) Supraspinatus tendinosis. 29. The plaintiff asserts that the above-mentioned injuries gave rise to the following disabilities:
(a) Disturbed and unrefreshing sleep; (b) Restriction and inability to physically interact with her children; (c) Difficulty raising arm above shoulders and lifting weights; (d) Numbness and tingling in arm and hand on some activities; (e) Neck and pain restriction; (f) Reduced ability to drive long distances; (g) Reduced ability to stand for long periods; and (h) Reduced feeling and numbness in left leg.
Evidence (Plaintiff)
Evidence of the plaintiff
30. The plaintiff gave evidence throughout the first day of hearing. The plaintiff gave evidence in relation to the motor vehicle accident of 9 May 2016, although her memory of the accident itself and the events immediately afterwards are limited (T5.25-30). The plaintiff has required treatment in relation to her neck, lower back, and shoulder as a result of the accident (T6.1-10).
31. The plaintiff stated that, prior to the accident, her intention was to pursue a career as an accountant. The plaintiff had taken steps toward this goal through her studies at CIT, where she had been undertaking flexible learning, or night classes in 2015 (T6.14- 20). The plaintiff stated that her progress through this course had been hindered due to a number of factors, including the need to care for her young children, and the impact of an abusive former husband, Mr G, which ultimately led to her spending time in
multiple women’s refuges (T6.40-45; 7.1-47).
32. Prior to the accident, the plaintiff had been employed in fulltime administration and reception positions, including working for a chartered accountancy firm. The plaintiff ceased employment after having entered the refuge, and having discovered her first pregnancy at approximately the same time (T9.30-15).
33. The plaintiff is no longer in a romantic relationship with her subsequent partner Mr Hogan, who she lives with and who is the father of the two youngest of her four children. The plaintiff stated that her injuries have caused particular problems with managing the care of her third child, Arwyn, finding holding her for extended periods difficult following her birth (T12.39-46). Arwyn has subsequently been diagnosed with ADHD which has also presented difficulties for the plaintiff (T8.30-40).
34. The plaintiff assessed herself as being in fit physical condition prior to the accident, engaging in daily physical activity with her children. Regular physical activity ceased following the accident (T14.10-15). The plaintiff stated that since the accident she can no longer drive long distances, has difficulty doing the groceries on her own, and sleeping throughout the night (T16-17). The plaintiff estimates that she visits her General Practitioner every four to six weeks, and remedial massage therapy every three to four weeks (T17.35-45).
35. The plaintiff stated that her sister, Ms Kathy Poole provided her with household assistance, particularly in relation to cleaning, cooking, and the washing of clothing. The plaintiff estimated that this ongoing assistance would equate to three and five hours per week, on alternate weeks, since the accident occurred until the beginning of the COVID-19 pandemic in early 2020 (T19.1-15).
36. On 5 July 2020 the plaintiff attended the National Zoo with her children and Mr Hogan. She stated that her injuries troubled her that day, and that she had taken extra medication. The plaintiff stated that her back had become sore by the end of the day, and that this continued into the following day (T20.30-45; 21.1-15). In cross- examination the plaintiff agreed that the surveillance footage depicted her visit to the National Zoo with her children and Mr Hogan, and accepted that she was depicted at
various times, with “neck down postures”, bending, lifting her children, and carrying her
daughter for short periods of time (T65.40-47; 66.5-46).
37. In cross-examination the plaintiff gave further evidence regarding her symptoms relating to her carpal tunnel syndrome, and further issues she had experienced with respect to hip pain and headaches during her pregnancies. The plaintiff gave further evidence in relation to the effects of her injuries and associated symptoms on her ability to perform household chores independently (T26-28). The plaintiff was taken to various
aspects of the medical evidence relating to the plaintiff’s reporting of her symptoms and
their impact on her ability to function in the months following the accident (T31-37).
38. On 12 July 2016 the plaintiff drove from Canberra to Bodalla in NSW, her sister’s car
having broken down in the area. The plaintiff stated that she had driven for three hours
to pick up her sister and her sister’s children, spending approximately four hours there
before returning, with her sister completing the drive on the return trip (T40-42).
39. The plaintiff gave further evidence in cross-examination in relation to her assessment with Dr Reiter, physiotherapy sessions, her hobbies and her previous employment in her administration roles, and as a child carer (46-52). The plaintiff also gave evidence in relation to her engagement in studies at CIT (57-59). The plaintiff denied that her pregnancy, of itself, had any effect on her decision to withdraw from her studies, or her ability to complete her studies (T60.20-47; 61.1-22).
40. The plaintiff stated that she intends to return to study when her neck injury has resolved (T61.19-25). The plaintiff was questioned specifically in relation to her understanding of the requirements in relation to becoming a qualified accountant, estimating that it would require 12 months of study, in the context of the testing requirements of flexible learning. In re-examination the plaintiff clarified that the 12 months of estimated study related to the attainment of a bookkeeping certificate (T71.34-40). The plaintiff was unable to name which professional bodies govern accountants (T61.37-45; 62.1-10). The plaintiff accepted that there were other limitations on her time and impediments to prior and future full-time employment such as previous issues of family violence, and caring for her children, however denied that it would be difficult for her to engage in full time employment regardless of her injuries (T62.35-46; 63.1-35).
Evidence of Ms Kathy Poole
41. Ms Kathy Poole is the plaintiff’s sister, and gave evidence of her observations of the plaintiff’s condition immediately following the accident and thereafter, and the nature of
the assistance provided to the plaintiff by Mr Hogan and by herself. Ms Kathy Poole stated that she was not aware whether the plaintiff received any assistance in the weeks prior to the accident, and that she began providing assistance between the 6 weeks to 6 months following the accident whenever that assistance was required (T87.30-40). When asked to estimate how much assistance was provided to the plaintiff in relation to household chores, Ms Kathy Poole referred to journals kept by the plaintiff,
stating that she believed she would provide “five hours one week and three the next
unless she needed me extra.” (89.23-24). Ms Kathy Poole did not provide any
assistance in 2020 due to the COVID-19 pandemic (T90.15-20).
42. Ms Kathy Poole also gave evidence in relation to her recollection of her car breaking
down in Bodalla, the plaintiff’s subsequent drive to retrieve her, and their return to
Canberra (T88-90).
43. In cross-examination, Ms Kathy Poole stated that, during the 6 week period following the accident, the plaintiff could perform tasks such as vacuuming and dishwashing, but could not perform tasks involving arm movements like pegging out the washing, or
lifting her children (T93.1-15). Ms Kathy Poole was unaware that the plaintiff’s daughter
Arwyn had been diagnosed with ADHD (T98.1-7).
Evidence of Mr Jamie Hogan
44. Mr Hogan is the plaintiff’s former partner and the father of the plaintiff’s youngest
children, Arwyn and Riley. Mr Hogan gave evidence in relation to his observation of the
plaintiff’s injuries following the accident, her studies, the ongoing assistance he
provided, and gave evidence in relation to the visit to the National Zoo. In the days immediately following the accident Mr Hogan observed the plaintiff to be in pain, and stated that he began taking over household chores such as vacuuming, washing dishes, mowing the lawn, hanging clothes on the washing line, and cooking dinners
approximately five days per week (T102.10-20). The plaintiff’s injury complaints related
to her neck and her back (T102.4). Mr Hogan was in full time employment at this time
(T102.28-30).45. In relation to the zoo visit, Mr Hogan stated he observed that the plaintiff was experiencing soreness in her lower back and shoulders 20 minutes after their arrival, noting that she was placing her hands on her lower back and stretching (T104.35-47). Mr Hogan accepted that he and the plaintiff had walked through the zoo with the
children for a number of hours, and had not stopped to rest due to the plaintiff’s back pain. Mr Hogan stated that the plaintiff complained about back pain “for a fair bit of the trip” (T119.10-45).
Evidence of Ms Jennifer Wheeler
Ms Wheeler is the plaintiff’s aunt and a retired nurse. Ms Wheeler stated that, prior to
the accident, the plaintiff would often assist her with housework, cleaning, and grocery shopping. Ms Wheeler described the plaintiff as healthy, and very fit, prior to the accident. She affirmed that the plaintiff had aspired to become an accountant.
47. Ms Wheeler stated that, following the accident, she has been assisting the plaintiff with
household tasks, and in looking after the plaintiff’s children after school. When asked
of her observations of the plaintiff’s complaints of pain, Ms Wheeler stated that she
knew the plaintiff was in pain all of the time, however the degree of pain would vary, becoming worse after the plaintiff had needed to do something involving her children.
Ms Wheeler stated that she believes the plaintiff’s neck pain is worse than her back
pain (T125).
48. In cross-examination, Ms Wheeler agreed that there were certain tasks which she was unable to perform for the plaintiff, due to her own pain issues, stating that she had been unable to assist with vacuuming or washing windows. She agreed that the assistance she provided lasted for a few weeks following the accident (T126.1-25).
49. Ms Wheeler could not recall the plaintiff complaining of difficulties with her wrists, and did not recall the plaintiff having been diagnosed with bilateral carpal tunnel syndrome (T126.36-40).
Evidence of Dr Brooder
50. Dr Brooder is a neurologist engaged by the plaintiff. Dr Brooder produced two reports, the first dated 6 December 2019 and the second supplementary report dated 17 July 2020. The supplementary report was prepared in response to surveillance footage of the plaintiff at the National Zoo produced by the defendants. Dr Brooder provided further oral evidence at trial on 22 July 2020.
In Dr Brooder’s 6 December 2019 report, he considered that there was a direct nexus
and relationship between the motor vehicle accident and the plaintiff’s injuries and
disabilities involving her lower back, her left shoulder, and her cervical spine.
Dr Brooder’s diagnosis concerning the plaintiff’s relatively constant and variable aching
pain in her lower back and left buttock was that it was consistent with aggravation to the degenerative changes and the facet joint arthropathy, associated with the
development of a small central disc protrusion in the plaintiff’s spine.
The plaintiff’s diagnosis concerning a relatively constant aching pain in her left shoulder
and upper arm was, in Dr Brooder’s opinion, consistent with the development of a mild
supraspinatus tendinosis.
54. The plaintiff’s diagnosis concerning her complaint of a “swollen” sensation and
associated intermittent aching pain involving her posterior cervical region, was in Dr
Brooder’s opinion consistent with the development of a posterior annular bulge and an
annular tear.
55. The plaintiff’s diagnosis concerning intermittent tingling paraesthesia in her hands was
consistent with a probable bilateral carpal tunnel syndrome.
Dr Brooder’s supplementary report maintained that his opinion had not changed after
having viewed the surveillance footage.
57. In cross-examination, Dr Brooder stated that he was “totally dependent” upon the plaintiff’s reporting with respect to her ability to perform household chores and duties,
personal care, and other activities of daily living (T143.1-6). Dr Brooder agreed that he had not observed the plaintiff to demonstrate any apparent disability on the day of his clinical examination of the plaintiff, and that this was consistent with what he had observed in the surveillance footage (T143.45-47).
Evidence (Defendants)
Evidence of Dr Reiter
58. Dr Reiter is a practising rheumatologist engaged by the defendants and produced a report dated 31 October 2019, and a further supplementary report dated 16 July 2020. The plaintiff described symptoms to Dr Reiter relating to her cervical spine, lumbar spine, and left shoulder.
59. The plaintiff reported constant cervical spine pain, which she rated as 1-2 out of 10, where 10 is the worst imaginable pain and 0 is no pain. This pain would increase to 9 out of 10 after sitting with a laptop and her head forward flexed after about 30 minutes. This pain was reported to increase in intensity during activities such as hanging out washing, or holding her head static for periods of time, such as when watching television.
60. Dr Reiter stated that the plaintiff is currently limited in her ability to continue with her accounting course, due to the pain associated with holding her head static. In her supplementary report, Dr Reiter states that this could be ameliorated if the plaintiff was provided with an appropriate ergonomic setup in conjunction with practices such as standing and stretching every 20 minutes.
61. The plaintiff reported constant central lumbar spine pain, occasionally radiating into other areas. The plaintiff reported pain in this area present in all positions, significantly increasing with sitting, moderately increasing with standing, increasing when ascending and descending stairs, and slightly increasing with walking.
Dr Reiter’s opinion is that the plaintiff aggravated a pre-existing cervical and lumbar
degenerative disease which was present at the time of the accident. Dr Reiter stated that the cervical and lumbar pain had not improved very much since the accident occurred.
63. The plaintiff reported shoulder pain localised to her scapular spine, occurring after sitting for one hour, driving for 30 minutes, or repeated lifting or lowering of her arms. The plaintiff would also experience upper limb numbness after holding her phone in her
left hand for periods of time. In Dr Reiter’s opinion, the plaintiff had not injured her left
shoulder, stating that her history is not consistent with her pain originating from the left shoulder, as the pain is in the area of her scapula spine, rather than in her subacromial and deltoid muscle area.
64. Dr Reiter recommended that plaintiff be referred to a pain specialist with an interest in assessing patients who have spinal pain originating from their facet joints, which involves medial branch denervation using radiofrequency ablation. In cross- examination Dr Reiter explained that, simply put, this procedure would involve a nerve or nerves being treated in a manner which would provide 12 to 24 months of pain relief, which would only be effective if it is in fact the ablated nerve from which the pain is originating (T129.20-26).
Dr Reiter’s supplementary report contained a response to a review of the surveillance
footage taken of the plaintiff and Mr Hogan at the National Zoo. Dr Reiter noted that
the plaintiff “easily forward flexed her lumbar spine on several occasions”, stating that
this was indicative of embellishment on the plaintiff’s part at her prior clinical
examination, particularly with respect to her lumbar range of motion. Dr Reiter observed
the plaintiff to “move freely, without any pain or evidence of any disability”. In cross-
examination, further observations were made in relation to the plaintiff’s hand
positioning and gait, which in Dr Reiter’s opinion were not consistent with a person
experiencing pain in those areas (T132.5-36).
66. In cross-examination Dr Reiter stated that, in her experience, the most likely
explanation for the plaintiff’s ongoing pain is pre-existing changes of degenerative
disease affecting the cervical and lumbar spine (T130.25-31). In Dr Reiter’s opinion,
this degenerative change was aggravated by the motor vehicle accident, and it is for
this reason that the plaintiff’s symptoms are persisting (T130.40-44).
67. In re-examination, Dr Reiter opined that based on the surveillance footage, there was
nothing happening in the plaintiff’s physicality which would cause her to have difficulties
with her activities of daily living, including a domestic care and assistance requirement
(T133.5-20).
Evidence of Dr Machart
68. Dr Machart is an orthopaedic surgeon engaged by the defendants, and produced a report dated 24 April 2019 following an assessment of the plaintiff, and a supplementary report dated 14 July 2020 which was based on the provision of further material. At the assessment the plaintiff reported concerns in relation to swelling in the neck, pain in the base of the neck, weakness in the wrists, pain on gripping, pain and stiffness in the left shoulder, and lower back pain. This pain was reported to be present to various degrees, and not improving. The plaintiff reported difficulties in conducting aspects of housework, including cleaning walls, folding clothing, washing clothes, and cleaning and mopping the bathroom. The plaintiff reported that her walking capacity was limited to 20 minutes, limited by global numbness in the left leg and pain in the left buttock.
In Dr Machart’s opinion the plaintiff did not sustain any “substantial structural injury that
could be responsible for the plethora of symptoms with which she presented… 3 years
after the injury.” In Dr Marchart’s opinion there was no objective evidence of substantial
or structural injury. In the supplementary report, Dr Machart considered the further material including MRI and reports of Dr Brooder, Dr Sunkaraneni, Dr Malhotra, and Dr
Khurana. Dr Machart stated that the pathology of injury relating to the plaintiff’s cervical
spine appeared to be low-grade, not consistent with substantial disability, or prognostic features of disability. Dr Machart did not find incapacity for employment causally related to the accident.
70. Dr Machart reviewed the video surveillance of the National Zoo trip after he had prepared the reports of April and July 2020. Having reviewed this footage Dr Machart observed that the plaintiff did not display pain behaviours or appear to be in any significant or substantial discomfort (158.8-15). While accepting that symptoms may vary from day to day, or week to week, and that the footage had been taken a year after his most recent assessment, Dr Machart opined that his observations of the
plaintiff on the video did not “correlate too well with a disability or substantial pain” or
the plaintiff’s prior reporting with respect to her walking capacity (T159.1-30).71. In cross-examination, Dr Machart accepted that soft tissue injuries do not always heal as expected, and that in addition to variation of symptoms over time, symptoms may also vary due to the use of medication to ameliorate pain symptoms (T160.33-47; 161.1-6). However, Dr Machart stated that it would be unusual for a person to take medication to the extent that they were no longer in pain, and then undertake active tasks such as lifting and bending without asking for assistance (T163.23-35).
Surveillance Footage and Evidence of Mr Robson
72. The surveillance footage depicts the plaintiff, Mr Hogan, and the children arriving at the National Zoo and viewing the inhabitants of the zoo. Aside from the plaintiff and Mr Hogan themselves, the identities of all other individuals depicted in the footage have been obscured with video editing techniques.
73. The plaintiff is shown in the footage at various times walking and standing with her hands laying or clasped together against her lower back. The plaintiff is also depicted in the footage bending to lift and carry her children for periods of time.
74. Mr Robson was the surveillance operative contractor engaged by the defendants to collect footage of the plaintiff on 5, 6, and 8 July 2020. The footage of the plaintiff, Mr Hogan, and the children at the National Zoo was taken on 5 July 2020. Mr Robson had also been engaged to conduct surveillance upon the plaintiff in December 2019. Mr Robson agreed there had been nothing in the 2019 surveillance to suggest that the plaintiff did not have the injuries complained of (T167-168). Mr Robson explained that the gaps in the surveillance footage were unavoidable due to the need to maintain discretion (T168.32-33). Mr Robson stated that he observed the plaintiff enter the playground area at the National Zoo, but accepted that he did not see her engage in any activities with her children at this time (T170.1-10).
Exhibits
75. The following exhibits were tendered at the hearing:
(a) Exhibit 1: Chronology prepared by the plaintiff. (b) Exhibit 2: Defendants’ medical tender bundle, which included the reports of Dr Machart and the reports of Dr Reiter.
(c) Exhibit 3: Defendants’ economic loss tender bundle, which contained the plaintiff’s curriculum vitae and documents produced by the Canberra
Institute of Technology.
(d) Exhibit 4: Defendants’ surveillance tender bundle, which contained the surveillance report and the USB of footage.
(e) Exhibit 5: Dates of Plaintiff’s physiotherapy visits. (f) Exhibit 6: Plaintiff’s tender bundle, which included the plaintiff’s tax records from 2003-2010, the report of Dr Knox and the reports of Dr Brooder.
(g)
Exhibit 7: Payment Expenditure Sheet for Claimant Expenses as at 20 July 2020.
Plaintiff’s and Defendant’s Closing Submissions
Plaintiff’s and Defendants’ Submissions on Damages
76. The plaintiff’s submissions on damages, and the defendants’ corresponding
submissions are set out in the table below.
Plaintiff’s Defendants’ Defendants’ Submission Submission Submission (Primary (Alternative position – no position – if ongoing ongoing incapacity) capacity found)
General Damages $160,000 $75,000 $75,000 Interest $6,720 $3,225 $3,225 (2% of 50% for (2% on one- (2% on one- 4.2 years since half of general half of the accident) damages for general 4.3 years) damages for
4.3 years)Past Loss of Earning Capacity $157,394 $0 $0 (Allowing 3.66
years to 1October 2020 subject to
adjustment at
middle optionin Defendants’ Earning Capacity Assessment
report of gross $987 per week which converts to $827 net per week)
Interest $11,521 In light of In light of
above, $0 above, $0 (3.66 years at
2%)
Future Loss of Earning Capacity $200,000 $0 $10,000 (on a buffer (Claimed at basis) $250,000 in Statement of Particulars but
say) Past Super Loss $17,313 Not Not addressed addressed (11% of PLEC) Future Super Loss $22,000 Not Not addressed addressed (11% of FLEC) Past Domestic Assistance $34,944 $7,805 $7,805 (Say 4 hours (1 hour per (1 hour per per week at $40 week at $35 per week at $35 per hour for 4.2 hour for 223 per hour for years) weeks) 223 weeks) Interest $699 Not Not addressed addressed Future Domestic Assistance $72,288 $0 $15,813 (Allow 4 hours (1 hour per at $40 per week at $35 week for a for no more conservative than 10 10 year period years, and – multiplier applying the 451.8) 3% multiplier
of 451.8)Past Medical Expenses/ Past Out $16,172.82 $16,172.82 $16,172.82 of Pocket Expenses (agreed) (agreed) Future Medical Expenses/ Future $25,000 $0 $4,518 of Pocket Expenses (as per ($10 per paragraph 5 of week for no Statement of more than 10 Particulars) years, and
applying the
3% multiplier
of 451.8)Travel Expenses $6,771.31 Not Not addressed addressed (as per
paragraph 6 of
Statement of
Particulars)Interest on Travel Expenses $568 Not Not addressed addressed (say 4.2 years)
at 2%)TOTAL CLAIMED $747,563.95 $102,202.82 $132,533.82
Plaintiff’s submissions on the plaintiff’s evidence
77. The plaintiff submitted the following:
•
The plaintiff gave evidence for the entirety of the first day of the hearing, “the longer part in cross examination”.
•
The plaintiff gave evidence in relation to significant abuse she encountered in her pre-accident life, the accident, and her injuries.
•
The plaintiff also gave evidence in relation to her visit to the zoo with her children and Mr Hogan. The plaintiff said (T 20.13-24) that she was troubled by her back injury during the visit and that she could not take part in the playground activities with her children because her back was too sore despite taking extra medication (T20.16). The plaintiff also reported that after the zoo she went straight home to bed (T21.3), a statement that is corroborated by Mr Hogan.
•
The plaintiff also gave evidence of the household assistance provided to her since the accident by her sister Ms Kathy Poole, her aunt, Ms Jennifer Wheeler and Mr Jamie Hogan (T 86 lines 15). Her evidence was corroborated by each of these witnesses (Ms Kathy Poole at T86.6, Ms Wheeler at T124.33-35, Mr Hogan at T.102.10, and was accepted by Dr Brooder at T149.33-44).
Defendants’ submissions on the plaintiff’s level of injury
78. The defendants accepted that the plaintiff suffered soft tissue injuries to her neck and back, and probably to her left shoulder, in the accident. However, the defendants submitted that the evidence establishes that the plaintiff returned to her pre-accident levels of functioning in a matter of months, if not weeks. The defendants submitted that
this matter is complicated by the plaintiff’s unrelated bilateral carpal tunnel syndrome
affecting her functioning during the post-accident period.
The defendants submitted that the plaintiff’s evidence of her aspirations to become an
accountant had been strongly emphasised, and formed the basis of her substantial economic loss claim. The defendants submitted that these plans were hyperbole. It was submitted that the evidence established that the plaintiff had commenced but not
completed a number of courses, and that the plaintiff “did not even have a rudimentary
understanding of what was required to become an accountant.”
80. The plaintiff submitted that the defendants’ assertion that the plaintiff had largely
returned to her pre-accident level of functioning within a matter of months following the accident was not supported by the evidence. The plaintiff referred to the evidence of the plaintiff, Mr Hogan, Ms Kathy Poole, and Ms Jenny Wheeler. It was submitted that there was no reason for the Court to reject the evidence of these witnesses.
Consideration
81. I am not satisfied, on the evidence, that the stated plan by the plaintiff to become an accountant was in fact based on a realistic foundation. I deal with this issue in more detail at [234]-[261].
Further I agree with the defendants’ submission that the plaintiff has not proven any
significant ongoing disability as a result of the accident. It was submitted that it was
“difficult to be precise in this regard”, in circumstances where the defendants assert
that the plaintiff has not been forthright about her level of functioning since the accident. I deal with this issue in more detail later in this judgment in dealing with credibility, surveillance footage and the medical evidence.
Consideration in Relation to the Plaintiff’s Credibility and Reliability
83. The defendants submitted that the plaintiff, while giving evidence, was at times reluctant to make concessions and tended to exaggerate the effects of her injuries and disabilities. This was perhaps most obvious during cross-examination with respect to clinical notes obtained from Belconnen Physiotherapy Clinic.
84. This submission accords with my view of the plaintiff’s evidence in cross-examination
concerning the clinical notes from Belconnen Physiotherapy Clinic and cross-
examination generally.85. The plaintiff was taken to an entry dated 15 July 2016 (Exhibit 2 p 148) which records the following:
NO PAINS IN NECK THIS WEEK
LOWER BACK HAS BEEN FINE
…
86. The plaintiff indicated that she could not remember whether it was the case that she had no neck pain as at 15 July 2016 (T42.36-42). The plaintiff also indicated that she
could not recall whether entries stating “No [neck] pain apart from when extending neck
quickly, pain in C2 area. Resolves quickly” and “Lower back aches a little at the end of
the day” reflected the position as at July 2016 (T43.1-12).
87. When questioned about the Neck Pain and Disability Questionnaire (Vernon-Mior) dated 2 August 2016, (Exhibit 2 p 169) despite acknowledging that she had completed the questionnaire, the plaintiff was reluctant to concede a number of aspects of what
was contained on the form, including that she had “no pain at the moment”, could “lift heavy weights without extra pain” and that she could “read as much as [she wanted]
with no neck pain” (T30.35-41).
88. With respect to lifting, the plaintiff conceded that physiotherapy helped her injuries
“quite a lot” and she “probably did feel that way” at the time, although she had no
specific recollection (T31.7-15).
89. It was submitted that any suggestion that the plaintiff did not have careful regard for the answers she gave should be rejected, particularly in light of her evidence with respect to Section 9 of the document which concerns sleeping. The plaintiff gave evidence that initially she ticked the box indicating that she had no trouble sleeping, but on reflection decided that her symptoms at the time sat somewhere between her having no trouble sleeping and her sleep being slightly disturbed (T32.9-20).
90. It was submitted by the defendants that this was an example of the plaintiff being reluctant to make appropriate concessions, and that there was no reason the plaintiff would not have completed the form in a manner which reflected her injuries and disabilities at the time. The explanation eventually advanced by the plaintiff that she
found it “difficult” to complete the questionnaire (T32.22-26), it was submitted should
be rejected, and I do so on the basis of the evidence that emerged from cross-
examination. This in my view did not reflect well on the plaintiff’s credibility and
reliability.
91. The plaintiff was also cross-examined with respect to the Örbro Musculoskeletal Pain Questionnaire (ÖMPQ) dated 2 August 2016. In Section 5 of the form the plaintiff
indicated as areas of pain “neck – headaches” and “lower back”. Of significance, the plaintiff did not indicate that “shoulder” was an area she experienced pain. The plaintiff
denied that she had no shoulder problems at the time, but could offer no explanation
as to why she had not indicated on the form that she had shoulder pain (T33.9-15).
In response to Question 6 “How many days of work have you missed because of pain
during the past 18 months”, the plaintiff ticked “0 days” but she wrote “(1-2 weeks from
usual mum duties)”. The defendants submitted that this supports the proposition that the effects of injuries suffered in the subject accident on the plaintiff’s functioning were
limited. On all of the evidence, I agree.
93. The plaintiff was questioned with respect to pain rating scales found on the form (T34.13-35.24). In particular, there were several instances where it appeared that the plaintiff had indicated that her ability to function was better, but then amended the document to suggest her function was, in fact, worse. For instance, in response to
Question 16 “In your estimation, what are your chances that you will be able to work in
six months?” initially 10 was circled (where 10 means very large chance, and 0 no
chance), but the 10 was crossed out and 5 circled instead. Another example relates to
Question 18, which required a response to the statement “Physical activity makes my
pain worse”. Initially the response appears to have been 0 which represents
“completely disagree”, but then the response was changed to 5 out of 10.
94. Of particular note, with respect to domestic assistance, is the response to Question 23,
the statement being “I can do ordinary household chores.” It appears it was initially
answered 10 out of 10 meaning “Can do it without pain being a problem”, then it
appears to have been amended to 8 out of 10. Exactly the same responses appear to
have been made with respect to Question 24 which contains the statement “I can do
the weekly shopping” (Exhibit 2 p. 172).
95. The plaintiff submitted that the defendants sought to challenge the plaintiff’s veracity
on the basis that she could not remember the state of her neck pain on a specific date four years later. It was submitted that the fact that the plaintiff did not purport to do so confirmed, rather than detracted, from her credibility. The plaintiff submitted that this also applied to the evidence given by the plaintiff in cross-examination in relation to her answers to the Neck Pain and Disability Questionnaire dated 2 August 2016.
96. In response to the defendants’ submissions in respect of the ÖMPQ, the plaintiff submitted that the defendants’ submission did not provide the support claimed by the
defendants. It was submitted that the plaintiff, a mother of four children, had no option but to continue her "mum duties". The fact that for one to two weeks in the first 18 months following the accident she was totally unable to do so supports rather than detracts from her injury claim.
97. I have taken on board these further submissions from the plaintiff. Nevertheless, as
stated above, the plaintiff’s evidence on this topic was unconvincing.
98. The defendants submitted that it was only when questioned for some time on the topic did the plaintiff seek to explain away indications that she did not have pain, or small amounts of pain, as at August 2016 by saying she had been hiding her pain (T35.26- 47).
99. In my view the plaintiff’s evidence on this issue was unconvincing. There appears to be
no logical reason why the plaintiff would seek to hide her pain from a physiotherapist
engaged for the very reason of treating her symptoms.100. It is appropriate at this juncture that I set out the principles I have relied upon generally in this judgment in my assessment of reliability and credibility.
101. It is abundantly clear from the authorities that the assessment of credit through demeanour has its limitations and that credibility may be more accurately tested by reference to objective facts, motive, and overall probabilities: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], Ryan v Bunnings Group Limited [2020] ACTSC 353 at [21]-[30] (Ryan v Bunnings Group Limited), Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142] (Craig v Silverbrook).
102. In Craig v Silverbrook, Sackar J made the following observations at [142]:
In the recent decision of McGraddie v McGraddie and Another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge
is faced with a stark choice between irreconcilable accounts, the credibility of the
parties’ testimony, and the trial judge’s assessment of the character of witnesses and
the manner in which the witnesses give evidence, is of primary importance. … Similar
observations have been made in Australian authorities (Fox v Percy at [23]; Rosenburg v Percival [2001] HCA 18; 205 CLR 434 at [41] per McHugh J and see generally comments in
Ritchie’s Uniform Civil Procedure NSW at SCA s 75A.20).
(emphasis added)
103. In Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21, Garling J outlined
at [60]-[61] the following considerations with respect to the assessment of a witness’
credibility and reliability:
It is necessary for a judicial officer to explain why he or she has found the evidence of a witness to be unacceptable. The possible bases for such a finding would include (but are not limited to):
(a) Contradictory evidence of the same events or incidents from another witness;
(b) Contradictory evidence from contemporaneous documents;(c) Inconsistencies or contradictions within a witness’ own evidence;
(d) The demeanour of a witness, including the manner of giving evidence; and
(e) Evidence of conduct or behaviour which is inconsistent with mandatory practices of
police officers, or else those practices which are regularly followed by police officers.
A party who has called evidence from a witness, which is relevant and apparently probative, and whose evidence is not accepted is entitled to know the basis of that nonacceptance, in order, at least, to be able to assess the prospect of a successful appeal.
104. The unsatisfactory aspects of the evidence of the plaintiff discussed in this judgment in the context of the medical evidence, the surveillance evidence, and her cross- examination have cast a shadow over the evidence of the plaintiff. Therefore, where there is available reliable, corroborative evidence, I have relied upon it: Ryan v Bunnings Group Limited at [74]; Maric v The Nominal Defendant [2012] NSWDC 69 at [118]; Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 at [964]; Kelenik v Apostolidis & Ors [2009] VSC 208 at [595]; and Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 at [83].
105. It is also important to note that a judge must not disregard reliable medical evidence
due to concerns about the plaintiff’s credibility. The case must be decided on the whole
of the evidence, including objective evidence of diagnostic tests which are unaffected
by the plaintiff’s credit: see Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at [49];
Petrovic v VWA [2018] VSCA 243 at [76]; Pulling v Yarra Ranges Shire Council [2018]
VSC 248 at [51]; and Ryan v Bunnings Group Limited at [27]-[29].106. Additionally, in a broadly similar vein, in personal injury cases, the comments of Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]-[4] are relevant:
First, the trial judge was invited to discount the appellant’s oral testimony on the basis of
accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. Such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
i. the circumstances of the consultation;
ii. the manner in which the history was obtained;
iii. the period of time devoted to that exercise, and
iv. the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by a health professional, rather than
a verbatim recording; and
(e) a range of factors, including fluency in English, the professional’s knowledge of
background circumstances of the incident and the patient’s understanding of the
purpose of the question, which will each affect the content of the history.
The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.
Thirdly, and more significantly, it was quite possible that the elements of florid expression
and exaggeration in the applicant’s oral testimony (and in some of the recorded histories)
may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts.
107. Thus, it is also clear from the authorities that drawing conclusions from inconsistencies
in accounts as between health professionals and a plaintiff’s testimony should be
approached with caution. I have had regard to these authorities in drawing my
conclusions and have exercised the appropriate caution.108. The defendants submitted that the evidence establishes that the plaintiff had largely returned to her pre-accident level of functioning within a matter of months following the accident. It was further submitted that surveillance undertaken at the National Zoo on
5 July 2020 lends further support to the defendants’ contention.
109. I will deal with the defendants’ submission concerning the return or otherwise to the
pre-accident level of functioning in the context of reviewing all the evidence, including
the medical evidence and the surveillance evidence.
Plaintiff’s submissions on Mr Robson and the surveillance footage
110. The plaintiff submitted that Mr Robson, the surveillance investigator, had revealed that the plaintiff had previously been under surveillance in December 2019 and that there was nothing in that surveillance to indicate she did not suffer the injuries complained of (T168.1-26).
111. The plaintiff further submitted that although Mr Robson tried to evade answering the questions, he eventually conceded (T170.10-11) that he did not see the plaintiff engage in any activities with her children, which is entirely consistent with the plaintiff's evidence (at T20.19-24).
Consideration – Mr Robson and the surveillance footage
112. The plaintiff gave evidence that while at the zoo she experienced low back pain and
discomfort despite taking “extra medication”. She gave evidence that she had her
hands behind her back because it was aching and was “limping a little” as she is seen
at the end of the day walking to her vehicle (T20.23-21.2).
113. The defendants submitted that it is perhaps notable that the plaintiff needed to be prompted to state that she put her hands on her back on account of pain whilst walking around the zoo. This evidence was not given spontaneously (T20.23-20.34).
114. The plaintiff attempted to justify the fact that she was seen to lift her younger children
from time to time because their “weight was central” (T66.5-9) to hers (this was echoed
by Mr Hogan during cross-examination) (T119.45-120.2), perhaps to give the impression that she took care when lifting her children. However, the defendants submitted that this simply was not so. The plaintiff was seen on the footage bending, often at an angle to lift a child. It was further submitted that on no occasion is the plaintiff seen to take any particular care in terms of her posture when doing so.
115. The defendants’ submission in this regard accords with my view of the surveillance
footage.
116. The defendants submitted that it was particularly important to note the lack of assistance Mr Hogan provided during the periods of footage exposed. On occasions he is seen away from the group taking photographs, presumably of animals and other attractions. It was submitted that, if the plaintiff were as disabled as claimed, this simply would not have been the case, particularly in the context of Mr Hogan's evidence of the extent of assistance required by the plaintiff. I interpolate here to note that it is difficult
to ascribe any general necessary forensic reliance on Mr Hogan’s lack of assistance
on this specific day.
117. The defendants submitted that the group is seen to finish having lunch, the plaintiff is seen packing things away while Mr Hogan continues to sit, apparently content to allow the plaintiff to tidy up, an activity which required bending. If Mr Hogan were accustomed to assisting the plaintiff on account of her injuries there would have been at least some evidence of him rendering assistance or demonstrating protective behaviours.
118. Mr Hogan’s evidence was as follows (T104.37-43):
During your time at the zoo how was Jodie? ---She seemed all right in the first 20 minutes, but after that she became very sore.
Did she indicate any area of soreness to you? ---Yes, her lower back and her shoulders.
Did you see her do anything in relation to her lower back while you were at the zoo?---Yes, she was putting her hands on her lower back, trying to stretch it.
119. The defendants’ submitted that Mr Hogan’s suggestion in cross-examination that she
was “hanging onto her lower back” and that her hands were facing “inwards”, (T119.27-
37) reflects a scene entirely different to what is seen on the surveillance footage.
120. The defendants further submitted that Senior Counsel for the plaintiff in opening suggested that the interpretation of the footage would promptly resolve the controversies in expert medical evidence (T3.43-4.15). The defendants submitted that since that time, the plaintiff appeared to have abandoned this position, and had instead
resorted to relying upon what the plaintiff says occurred off camera. The plaintiff’s
counsel did not accept this submission. The plaintiff disputed that the opening submissions on the video footage given by Senior Counsel for the plaintiff had been abandoned. It was submitted that the plaintiff had given uncontradicted evidence that she had taken medication before the visit to the zoo. Further, the plaintiff did not take part in post-lunch playground activities with the children and gave evidence she suffered and was unable to do much for several days following the zoo visit.
121. Dr Brooder agreed in cross-examination that, when he examined the plaintiff, there was
no apparent disability, and this meant that, during the consultation, the plaintiff’s
movements were entirely normal. This included activities such as walking, sitting, standing and bending (although there were complaints of pain) (T143.21-35). Dr Brooder agreed that, with regard to the surveillance footage, his observations of the plaintiff were consistent with what he had observed when he examined her - that is, she did not demonstrate any apparent disability and her gait and general mobility were normal (T143.41-144.5).
122. Dr Machart clearly was of the view that the footage simply displayed what appeared to be a couple at the zoo with their children. When asked specifically about any pain behaviours the plaintiff might have demonstrated, he elaborated (T158.8-15):
In terms of Ms Poole, in terms of pain behaviours or otherwise, did you make any observations? ---Well, she didn't appear to be in pain, given the observation that she was quite physically active. I didn't see any evidence of facial expression of pain, I didn't see her ask for help, I didn't see her explaining to her children that perhaps she couldn't lift them because she had pain. There was not - no observation I could make that there was any significant or substantial discomfort. She didn't seem to have any difficulties at all.
123. Dr Machart expressed the view that, although medication had the potential to eliminate pain completely, he would expect a person who was prepared to take medication before undertaking an activity to still limit themselves in terms of their movements. He also
indicated that it would have been “unusual if I was told that the person took [medication]
and therefore they had no pain and therefore they proceeded to lift children and bend
to the extent without asking for help” (T163.23-35). This contradicts the evidence of the
plaintiff and Mr Hogan that the plaintiff was, in fact, in pain at the zoo. I agree with this
submission as it accords with my view of the evidence.124. Dr Reiter was cross-examined with respect to her interpretation of the surveillance footage. She was unwavering in her view that the plaintiff did not demonstrate pain behaviours and, in fact, she went on to explain that the plaintiff held her hands behind her back as this appeared to be the way she liked to stroll. Dr Reiter stated that "usually, somebody who is experiencing lower back pain they don't just sit the back of their hand on their back. What they will do is put the palm of their hand on their back" (T132.13-
15). In particular, she noted that, at the end of the footage, the plaintiff is seen “striding out quite significantly” as she gets to the carpark rather than walking gently still holding
her back, which is inconsistent with what someone would do if they had pain in their back (T132.10-27). Again I agree with this submission as it accords with my view of the evidence.
125. The defendants submitted that the interpretation advanced by Dr Reiter, supported by Dr Machart should be preferred and I do so.
126. Mr Robson, the surveillance operative who filmed the contentious footage was required for cross-examination. The defendants submitted that nothing of particular
consequence arose from Mr Robson’s evidence. Whilst it was suggested to Mr Robson
that in earlier surveillance “[t]here was nothing in that surveillance to suggest that she
didn’t have the injuries complained of...” (T168.22-27), the cross-examiner pointedly
did not make the enquiry as to whether Mr Robson had seen anything which was consistent with the injuries complained of. The plaintiff submitted that Mr Robson
attempted to “evade answering” questions and “eventually conceded” that “he did not
see the Plaintiff engage in activities with her children, which is entirely consistent with
the evidence”.
127. The defendants submitted that this was a potentially misleading characterisation of the evidence and that it became apparent that the witness and the cross-examiner were at cross-purposes. Although Mr Robson gave evidence that he did not walk into the playground area, he was repeatedly asked questions in the nature of what activities the plaintiff did or did not do in the area (T169.23-170.15). Noting that he did not go into the playground area, it was not established that he could still see the plaintiff once she had gone inside. In that context, it cannot be said that anything useful from his answer
that he “did not see any activities” can be inferred, and certainly not that this is “entirely consistent with the Plaintiff’s evidence”. I agree with this submission as it accords with
my view of the evidence.
128. The defendants further submitted that the plaintiff’s movements and function as
demonstrated in the surveillance taken within weeks of the hearing was inconsistent with the plaintiff's rigid, inflexible posture adopted whilst giving evidence during these proceedings. Again, there is force to this submission.
129. In and of itself, surveillance footage is not of determinative forensic utility, in relation to
a plaintiff’s level of injury. Nevertheless, in the context of all the evidence in this case,
including the relevant medical evidence, the surveillance evidence is telling and not
without significance.
Plaintiff’s submissions on Ms Kathy Poole’s evidence
130. The plaintiff submitted the following:
• Ms Kathy Poole is the Plaintiff's sister. •
Ms Kathy Poole described the plaintiff’s condition shortly after the accident when she first had the opportunity to see her – she was sore and in shock. (T86.39-40).
• Ms Kathy Poole also described the assistance provided by Mr Hogan (T86.6-15) •
Ms Kathy Poole gave evidence about the assistance she provided to the plaintiff after the accident (T89.25-30).
•
Ms Kathy Poole described the effects of her injuries on the plaintiff as she had witnessed them (T.89.13-19). At times, Ms Kathy Poole became visibly upset
when talking about the plaintiff’s injuries caused by the accident (T94.24-35).
Consideration – Evidence of Ms Kathy Poole
131. The defendants’ submitted that the plaintiff’s sister gave evidence during the course of
the proceedings. On her approach to the witness box and before being sworn in, Ms Kathy Poole seemed visibly distraught, although the reason for this was not apparent. Her evidence was punctuated by long pauses, often followed by vague non-responsive answers.
132. The defendants submitted that Ms Kathy Poole accepted that the plaintiff was capable of vacuuming and dishwashing, but not pegging out the washing or picking up the children (T93.1-7) and that having regard to the surveillance, the latter is demonstrably false.
133. Beyond knowing that the plaintiff wears a wrist brace at night-time, Ms Kathy Poole did not appear to have been aware of the problems the plaintiff had with bilateral carpal tunnel in the post-accident period (T96.11-29). Furthermore, Ms Kathy Poole had no
knowledge of Arwyn’s ADHD condition and limited knowledge of her having Colic in the
months prior to the accident (T97.47-98.31). The defendants submitted that these factors entirely undermine the extent to which Ms Kathy Poole says she spoke with the plaintiff, and the level of assistance she says she provided, since the accident occurred.
134. When asked to estimate how much time she spent assisting the plaintiff with domestic
chores, Ms Kathy Poole gave evidence that “[m]y sister kept a journal, she’s always
got journals. I think it was five hours one week and three the next unless she needed
me extra” (T89.20-24). The concerning aspect of this evidence was that, despite its
specificity, it mirrored the plaintiff’s own evidence. When challenged as to whether she
had discussed the issue with the plaintiff, Ms Kathy Poole proved non-responsive
(T93.29-94.20).135. Ms Kathy Poole indicated that she was unaware whether the plaintiff was receiving any assistance at home for the first four to six weeks after the accident (T87.33-37). Ms Kathy Poole accepted in cross-examination that, as far as she was concerned, it was possible that the plaintiff was managing on her own for those first four to six weeks (T91.29-43). After that period she indicated that she would provide the plaintiff with
assistance “[i]f she needed it”, and this would be in the form of daily household chores
and washing (T87.42-44). Ms Kathy Poole indicated that she had not provided any
domestic assistance “this year” (that is, 2020) on account of the COVID-19 pandemic
(T90.15-18).
136. The defendants noted that the plaintiff’s sister’s account of the trip to Bodalla was
inconsistent with the plaintiff’s account (T95.32-41).
137. The defendants submitted that the court would have concerns regarding the evidence on this issue. The defendants submitted that the account provided in the physiotherapy note should be preferred. This was the note entry, dated 12 July 2016, which states:
NAUSEA. NECK HAS BEEN OK. BACK HAS BEEN REALLY SORE. BUT SISTERS CAR BROKE DOWN ON WAY TO COAST SO HAD TO DRIVE ALL THE WAY DOWN TO BODALLA AND BACK. TIRED AND THEN WOKE UP AT 4AM TO DRIVE TO SYDNEY TODAY LX HAS SETTLED. RESTED LAST COUPLE OF DAYS.
138. The defendants further submitted that this is another example of the plaintiff attempting to exaggerate the extent of her functional disabilities. On the evidence, I agree.
139. The defendants noted that Ms Kathy Poole gave evidence that the first person she called for assistance when she broke down was the plaintiff (95.9-27). She did not make any alternative arrangements for being picked up. This it was submitted, further tends
to undermine the plaintiff’s claimed level of impairment.
140. Ultimately, it was submitted by the defendants that Ms Kathy Poole’s evidence with
respect to the level of care she says she provided cannot be accepted.
141. I interpolate here to note that the evidence concerning the trip to Bodalla was not in and of itself taken in isolation of determinative forensic utility in relation to the issues in this case. Nevertheless, when considered in the context of the other evidence, it tends to support a finding of exaggeration on the part of the plaintiff.
142. I further note that no domestic assistance had been provided in 2020 by Ms Kathy Poole as at the date of her evidence in July 2020. I accept on the evidence that some domestic assistance was required and given by Ms Kathy Poole. The extent to which assistance was required on an ongoing basis is difficult to determine in light of the
plaintiff’s evidence, which was as I have found, subject to exaggeration. I am not
persuaded that all the ongoing assistance given was necessarily related to the
accident.
Plaintiff’s submissions on Mr Hogan’s evidence
143. The plaintiff submitted the following:
• Mr Hogan is the father of Arwyn and Rylie. •
Mr Hogan attended the scene of the accident where he found the plaintiff "very stressed' (T101.32).
•
In the following days, the plaintiff complained to Mr Hogan of pain in her neck and back and was limited in her household chores (T 102.4-12).
•
Mr Hogan described the chores he took over from the plaintiff and the assistance provided by Ms Kathy Poole to the plaintiff (T102.14-34).
•
Mr Hogan gave evidence of the ongoing assistance he provided the plaintiff (T102.35-45; 103.1-15).
•
In relation to the zoo visit, Mr Hogan gave evidence of how the plaintiff was unable to engage with the children at the playground (T104.30).
•
Based on Mr Hogan's observation of the plaintiff, her injuries are "staying the same" (T105.30-31).
•
Mr Hogan suffered the indignity of an improper allegation in cross-examination, being alleged he had been fraudulent in relation to Centrelink payments (T 107.26-30). Counsel for the Defendant later sought to 'withdraw' the question.
Consideration – Evidence of Mr Hogan
144. The plaintiff’s ex-partner Jamie Hogan gave evidence that, after the first few weeks
post-accident, the plaintiff mainly only vacuumed the lounge room (T102.35-41). He indicated that he cooked five days a week and the plaintiff cooked only two days a week. He initially gave evidence that the plaintiff could hang a load of washing out but he would need to do the next two or three (T103.5-7). Mr Hogan noted that they had a small kitchen and he had seen the plaintiff clean it, albeit not often (T114.1-5).
145. Although Mr Hogan gave evidence that Ms Kathy Poole changed and made the beds (T103.12-16), this was not something Ms Kathy Poole had indicated in her evidence that she had done.
146. Mr Hogan gave evidence that, at the time of the motor vehicle accident, he was working for Icon Air Conditioning, working from 7am to 3.30pm, or until 6pm with overtime. At the time of the accident, he was working six days a week, and working overtime hours
about four of those days (T109.42 – 110.7). Mr Hogan gave evidence that, before the
motor vehicle accident and for the remainder of 2016, he would spend about two hours
at the plaintiff’s house after work (T110.42 – 111.33). The defendants submitted that
Mr Hogan had limited visibility on what was happening in the household having regard to the hours he was working at the time of the accident.
147. The defendants submitted that Mr Hogan was unaware that the plaintiff had stopped studying in the months preceding the accident (T110.21-22). He also appeared to be
under the impression that Arwyn’s colic had the limited effect of preventing the plaintiff
from taking her to night school (T110.24-30), apparently he was unaware that “[s]he would scream non-stop from about 8 o’clock at night until about 3 in the morning”
(T13.44-47), or that the plaintiff had stopped studying before the accident (T110.21-
22).148. Mr Hogan, like the plaintiff’s sister, did not appear to have been aware of the extent of
the plaintiff’s bilateral carpal tunnel condition (T118.21-36). It was submitted by the
defendants that, if Mr Hogan had been doing as much as for the plaintiff as he claimed,
he would have been aware of the impact this condition had on her.149. The defendants do not maintain an allegation that Mr Hogan and the plaintiff sought to inform Centrelink that they were no longer in a relationship when they in fact were. I underline that this is not a fact in issue.
150. The defendants submitted that while their submission was that there is a reasonable basis for the finding that the plaintiff and Mr Hogan have been in a relationship since the accident occurred, it is not necessary to make such a finding. I do not make such a finding. It was submitted that, to the extent that the proposition is advanced that Mr Hogan has continued to reside with the plaintiff since the purported separation in early 2018 for the purposes of providing the plaintiff with assistance, it should be rejected. In that regard the defendants note the following:
(a) Mr Hogan first met the plaintiff when he was 26 and she was 18 (T100.20-21). (b) At the time of the subject accident Mr Hogan had a child, Arwyn Hogan with the plaintiff. (c) Mr Hogan treated and continued to treat the plaintiff’s two older children from a previous relationship as his own and saw no reason to treat them differently
(T101.1-8).(d) At the time of the subject accident the plaintiff was, though not known to her at the time, pregnant with her second child with Mr Hogan. (e) Both Arwyn and Rylie share Mr Hogan’s surname (T101.1-2). (f) Mr Hogan denied that he was in a relationship with the plaintiff at the time of the subject accident, but later conceded that he was “seeing” her and in an “informal
relationship” with the plaintiff at the time and attended the plaintiff’s home on a
daily basis to visit his daughter Arwyn and the plaintiff (T108.17-39).
(g) Despite the foregoing, Mr Hogan asserted that he entered a relationship “just after” the subject accident (T108.17-20).
(h) Mr Hogan moved in with the plaintiff at the beginning of 2017 on account of the arrival of his second child (T111.31-40). (i) Mr Hogan gave evidence that his relationship with the plaintiff ended at the beginning of 2018 (T106.31-32), and he had not been in a relationship with anyone else since that time (T103.40-41).
(j) Despite the relationship ending, Mr Hogan continued to live with the plaintiff, although his evidence was that he slept in a separate room, in a three bedroom house with four children, and continued to split finances “50/50” (T107.6-15).
(k) Despite not being in a relationship with the plaintiff, but still residing in the same property, Mr Hogan made a proposal of marriage to the plaintiff and she accepted his proposal straight away (T107.44-108.3). (l) Mr Hogan gave evidence that the plaintiff called off the engagement after three days (T103.24-33). (m) Ms Kathy Poole, the plaintiff’s sister, presumed the plaintiff and Mr Hogan were in a relationship during the reportedly brief period of engagement (T97.34-36).
(n)
The plaintiff and Mr Hogan are seen on surveillance, not long before the hearing, spending the day together at the zoo. It was submitted that Mr Hogan is clearly not there in the capacity of carer.
151. I note that Mr Hogan’s assistance is not evident on the surveillance footage of the zoo
excursion. Nevertheless, I must take into account that this is but a snapshot of one day in four years since the accident in relation to his role. Nevertheless, I accept that Mr Hogan gave assistance to the plaintiff after the accident. The extent to which ongoing assistance was in fact required thereafter was difficult to determine again in light of the
plaintiff’s evidence being subject to exaggeration on her part.
Plaintiff’s submissions on Ms Wheeler’s evidence
152. The plaintiff submitted the following:
• Ms Wheeler is the plaintiff's aunt. •
Ms Wheeler described the plaintiff's pre-accident health and her expressed wish to become an accountant (T123.20-40).
•
Ms Wheeler has assisted the plaintiff post-accident where she could (T124.32- 35).
•
Ms Wheeler provided to the Court her observations as to the plaintiff's ongoing pain (T125.25-40).
•
There is no reason to doubt that Ms Wheeler was an honest and accurate witness and she should be so accepted.
•
Not only is the plaintiff a witness of truth but that Mr Hogan, Ms Wheeler and Ms Kathy Poole are witnesses of truth.
Consideration – Evidence of Ms Wheeler
153. The plaintiff’s aunt, Jennifer Wheeler, gave evidence during the course of the
proceedings. Ms Wheeler had previously been a nurse but was medically retired on account of an injury to her back and a subsequent motor vehicle accident. Ms Wheeler gave evidence that the problems which caused her to retire included problems with her back and associated sciatica, neck pain and jaw pain associated with it being slightly out of alignment (T126.8-11).
154. Ms Wheeler stated that she had provided assistance around the house after the accident to the best of her ability, and this appeared to be limited to doing the dishes
or help “tidy up a little bit”, although she could not do anything strenuous (T124.33-35).
Ms Wheeler accepted that the assistance she provided to the plaintiff was limited to a few weeks post-accident (T126.13-24). This is supported by the fact that Ms Wheeler appeared to be unaware of the issues the plaintiff had associated with her bilateral carpal tunnel condition (T126.30-34). I accept her evidence.
155. I note that the reliance on Ms Wheeler’s evidence is substantially related to the
assistance provided for a limited period of a few weeks post-accident.
Plaintiff’s submissions on Dr Brooder
156. The plaintiff submitted the following with respect to Dr Brooder:
•
The Court has had the advantage of seeing and hearing Dr Brooder give evidence. He was an impressively qualified witness. The Court can be confident in concluding that Dr Brooder's expertise and assessment of the plaintiff is correct and supportive; while other medical practitioners provided expert opinions, their reports suffered from fundamental defects.
• Dr Brooder gave evidence in person (commencing at T141). •
Dr Brooder is a qualified and experienced neurologist who accepted that the history he received from the plaintiff was consistent with his findings on examination (T150.20-23).
•
Dr Brooder accepted a limitation on employment (T149.1-10) and on the plaintiff's ability to undertake her usual household chores and daily activities (T149.32-41).
•
Having had the advantage of Dr Brooder giving evidence, he should be accepted as balanced, honest, and correct in relation to his observations and opinions expressed in relation to the plaintiff's disabilities.
Plaintiffs’ submissions on psychiatrists’ expert witness reports
157. The plaintiff submitted that there was no issue between the psychiatrists whose reports were tendered by both parties, that the plaintiff suffers ongoing Adjustment Disorder with Depressed Mood. There was no cross-examination by either party of the psychiatrists who provided expert witness reports. The plaintiff gave uncontradicted evidence that she had done more crying since the accident than in her whole life (T15.3).
158. The plaintiff further submitted that the defendants' attempts to suggest the plaintiff's injury caused no ongoing interference with her ability to conduct a normal life properly and comprehensively is contradicted by the witnesses' evidence, namely Mr Hogan, Ms Wheeler and Ms Kathy Poole. They are also contradicted by the cost and number of sessions of the physiotherapy treatment received by the plaintiff and paid for by the second defendant. I interpolate here to note that whether or not the second defendant has paid for physiotherapy sessions cannot settle the issues that I must determine in this case.
Consideration of the evidence of Dr Brooder and Dr Knox
159. The plaintiff relies upon the report of Dr Ron Brooder, neurologist dated 6 December
2019 (Exhibit 6, p. 113). Dr Brooder recorded that “[d]uring the consultation and
examination [the plaintiff] did not demonstrate any apparent disability. Her gait and her
general mobility were normal”. However, he did note slightly impaired range of
movement with respect to the cervical spine, left shoulder and lumbosacral spine.
160. With respect to the prognosis, Dr Brooder considered that the reported symptoms with respect to the lower back were consistent with an aggravation of the degenerative changes and the facet joint arthropathy at the L4-5 and L5-S1 levels associated with
the “development” of a small central disc protrusion at the L5-S1 level. With respect to
the left shoulder complaints, Dr Brooder expressed the view that the plaintiff’s
complaints were consistent with her having developed a mild supraspinatus tendinosis.
Furthermore, the “swollen” sensation and intermittent aching involving her posterior
cervical region was consistent with an aggravation of the degenerative changes at the C5-6 and C6-7 levels associated with the development of a posterior annular bulge and an annular tear at the C5-C6 level.
Dr Brooder was of the opinion that the “prognosis for improvement remains reasonably
favourable”. However, her prognosis for “full recovery remains less favourable and
there is a significant risk that she will be subject to continuing low back pain and cervical
pain to some degree indefinitely”. Dr Brooder also provided a supplementary report
dated 17 July 2020.
162. During cross-examination Dr Brooder admitted that he was “totally dependent” upon the plaintiff’s self-reporting in coming to the conclusion that she was significantly limited
in her ability to undertake usual daily activities (T142.41-144.19). In the defendants’ submission, this is a fundamental problem with Dr Brooder’s report in circumstances
where the plaintiff’s self-reporting is unreliable. I accept this submission as it accords
with my view of the evidence.
163. During cross-examination, Dr Brooder accepted that it was not possible to say one way or the other whether the development of a small central disc protrusion at L5-S1 level
was “caused by” the subject accident instead of being a part of the usual degenerative
process (T144.18-46). Dr Brooder accepted that the same applied to the annular bulge in the cervical spine, although he expressed the view that the annular tear was more
suggestive of an acute injury (T145.28-35). Dr Brooder accepted that the plaintiff’s
degenerative conditions in her cervical and lumbar spine were progressive such that they would get worse irrespective of the motor vehicle accident, although he did not consider it was possible to predict the rate of progression in any single situation (T147.7-12).
200. In Lewis v Woolworths Limited [2018] ACTSC 200, the female plaintiff was 20 years of age at the time of the accident. She had previous asymptomatic spondylosis and suffered lower back pain since accident. There was consideration of video surveillance evidence in the judgment at paragraphs [71]-[73]. The plaintiff was awarded $170,000 in General Damages, $285,000 in Future Loss of Earning capacity, and including other awards, the total judgment was $543,243.
201. In the present case there is no suggestion of the need for surgery or any other particular intervention. Furthermore, the evidence establishes that the plaintiff continues to have a high degree of function. The defendants submitted that an award of $75,000, plus interest would be appropriate. In my view, an award of $90,000 is appropriate on all the evidence. I note that if some injury is established the plaintiff is entitled to damages however difficult they are to quantify: Hoblos v Alexakis [2021] NSWCA 126 (Hoblos v Alexakis) at [159]; [195].
Plaintiff’s Submissions on Domestic Assistance and Out of Pocket Expenses
202. The plaintiff made the following submissions:
•
The evidence is that the plaintiff required and received three to five hours assistance per week. The plaintiff conceded that the proper cost would be to average the hours to four hours per week. The plaintiff submitted that the rate should be $40 per hour and $160 per week. For the period of the motor vehicle accident to the date of judgment. The plaintiff claimed this together with interest.
•
The claim is ongoing and should be allowed into the future in the same rate of $40 per hour for an indefinite period, in circumstances where no medical practitioner is ready to prognosticate when the plaintiff's symptoms might abate.
•
The out of pocket expenses have been agreed by the parties at $16,172.82. Such expenses have not ceased and are ongoing into the future.
Consideration – Domestic assistance
203. The plaintiff has not particularised a claim for loss of capacity to perform domestic services for her children pursuant to s 100 of the Civil Law (Wrongs) Act 2002 (ACT). During the hearing Senior Counsel appearing for the plaintiff confirmed that no such claim was made (T10.1-12.2).
The plaintiff’s evidence in relation to domestic assistance was brief (T18.14-19.20). The
only chores mentioned related to cleaning the bathroom, vacuuming the “entire house”,
cooking “some meals” and hanging some washing. The plaintiff made the point that if
she has to go grocery shopping or out to appointments this would result in her being
“too sore to stand”.
The plaintiff’s estimate of requiring assistance with cleaning was 3 hours one week and
5 hours the following week (T19.1-5). As noted below, this was echoed by the plaintiff’s
sister.
206. Contemporaneous documents provided by Belconnen Physiotherapy Clinic give an insight into the situation in the months following the accident. For instance, in what
appears to be the first consultation on 20 May 2016 under “Current Duties” the following
is recorded (Exhibit 2, p. 155):
“WAS GETTING HELP AT HOME FIRST WEEK NOW DOING ALL HERSELF”
207. An entry dated 10 June 2016 in the clinical notes is significant (Exhibit 2, p. 152):
NECK- ONLY PAIN WHEN SLEEPING WITH A PILLOW. CURRENT PILLOW IS VERY
FIRM, TOO FIRM SO SLEEPING WITHOUT A PILLOW.
...
LOWER BACK – HAS BEEN FINE, HAS BEEN LIFTING, CARRYING WITHOUT
DIFFICULTY. IF DOESN’T STOP FOR WHOLE DAY THEN GETS A LITTLE ACHEY.208. The plaintiff denied that this entry was a representation of the position at the time (T37.30-43), but there is no reason to doubt its accuracy. The entry is not in isolation and there is no reason for what is contained therein to be false.
209. A clinical note from the physiotherapist dated 22 July 2016 suggests that the plaintiff may have been busy only a week or so later:
NECK GOING VERY WELL, FLAT OUT YESTERDAY ALL DAY AND NO PAIN. LOWER
BACK √√ BIT OF A HA TODAY?
STRESSFUL MORNING WITH KIDS AND CAR BREAKING DOWN
210. The plaintiff was only prepared to concede that the only time she would have been flat
out was if she “had appointments and everything to run to with my children” (T44.8-21).
211. During cross-examination, the plaintiff admitted that, as at March 2017, she was
independent in household tasks just “[n]ot things that require extra attention” (T27.44-
46).
212. In response to questions asked in relation to the Allied Health Recovery Request form dated 13 November 2018, the plaintiff conceded that, as at November 2018, she was spending one hour twice a day (14 hours per week) undertaking household chores (T29.14-27).
213. The plaintiff was questioned about an occasion where she drove to Bodalla, which is contained in the physiotherapy notes dated 12 July 2016 (Exhibit 2, p.149):
NAUSEA. NECK HAS BEEN OK. BACK HAS BEEN REALLY SORE. BUT SISTERS CAR BROKE DOWN ON WAY TO COAST SO HAD TO DRIVE ALL THE WAY DOWN TO BODALLA AND BACK. TIRED AND THEN WOKE UP AT 4AM TO DRIVE TO SYDNEY TODAY LX HAS SETTLED. RESTED LAST COUPLE OF DAYS.
214. The plaintiff accepted that she drove to Bodalla. Initially in cross examination, she
appeared to suggest it took her “about three hours”, but later this changed to “about
four hours” (T40.6-28). The plaintiff gave evidence that she met her sister at the
grandmother’s house (T40.6-28). The plaintiff gave evidence that she stayed at the
grandmother’s house for a period of three to four hours, and they made the journey
back. Despite the entry in the notes suggesting it was her driving, the plaintiff denied
driving back, stating her sister drove instead.215. Despite the difficulties she said she had with driving long distances, the plaintiff gave evidence that she did not ask Jamie Hogan or her brother to make the trip (41.6-16). When it was suggested to her that, as at July 2016 she was capable of driving long distances, she sought to explain that she was on a lot of Tramadol and Panadeine Forte (T42.6-12).
216. During cross-examination Dr Brooder indicated that he understood that the plaintiff had difficulties with certain household tasks, particularly heavier tasks such as hanging out heavy wet washing, on account of shoulder pain. However, he conceded that his
opinion was based on the plaintiff’s self-reporting (T149.22-44).
217. Dr Machart gave evidence that what he viewed on surveillance “did not correlate too well with a disability or substantial pain” in the context of domestic chores. Dr Reiter
gave evidence that, having viewed the surveillance, she did not believe that the plaintiff
would have any difficulty with her activities of daily living (T133.9-20).218. As I have stated earlier, I take into account that there are limitations in connection with surveillance. It is but a visual window on a particular day and it is now over five years since the accident. Nevertheless it does, along with the cross examination of the plaintiff and the medical evidence, tend to support a finding of exaggeration of the
plaintiff’s ongoing symptoms. Dr Brooder has relied significantly on the plaintiff’s self
reporting. That self reporting is in my view, subject to exaggeration.
219. I accept Dr Reiter’s and Dr Machart’s evidence in relation to the surveillance footage
as it accords with my view of the surveillance evidence.
220. I accept that some past domestic assistance was required as a result of the accident.
Consideration – Future domestic assistance
221. The defendants submitted that the totality of the evidence supports the proposition that the plaintiff does not require domestic assistance going into the future due to the subject accident. To the extent that any domestic assistance will be required, it was submitted that it was not accident related. In particular, the defendants noted the significant ongoing effects of the bilateral carpal tunnel syndrome, and the pre-existing
degenerative condition in the plaintiff’s cervical and lumbar spine which the evidence
establishes would have become symptomatic at some stage had the motor vehicle
accident not occurred.222. The defendants noted that during cross-examination the plaintiff conceded that as her children grew older, they would contribute in relation to household chores and in fact that was occurring to some extent at the time of the hearing (T69.28-33).
223. As noted above, the defendants’ primary position is that no allowance should be made
for future domestic assistance. If the court is persuaded that the plaintiff continues to have impairments with respect to household chores on account of the subject accident, it was submitted that 1 hour per week for a closed period of no more than 10 years would be appropriate. In this context, allowing $35 per hour, the defendants submitted that an allowance of $15,813 is appropriate (35 x 451.8).
224. I note the comments of Crowe AJ in Seselja v Reardon [2020] ACTSC 167 at [350],
that even if it can be established that a particular degree of assistance is required “at
around this level for the foreseeable future… there are simply too many variables to
make an award on the basis as submitted.”225. I am not persuaded that the plaintiff continues to have impairments with respect to household chores on account of the accident.
226. I do not propose to award damages for future domestic assistance.
Consideration – Bilateral carpal tunnel
227. Dr Ram Malhotra, consultant neurologist, in a report dated 16 October 2017 (Exhibit 3, p.113) noted that a nerve conduction study of the upper limbs revealed moderate right sided and mild left sided carpal tunnel syndrome. In his report he concludes:
I think Jodie’s upper limb symptoms are due to carpal tunnel syndrome. No accident related
cause was found to explain Jodie’s upper limb symptoms.
No neurological cause was found to explain Jodie’s lower limb symptoms.
228. The plaintiff conceded that, at times following the accident, her right (dominant) hand was so weak that she would have difficulty holding a cup. Noting the timing of Dr
Malhotra’s report, it is apparent that the plaintiff continued to have significant symptoms
with respect to her right wrist as at October 2017. The plaintiff conceded that the condition would impact her ability to do things like cleaning kitchen cupboards, and on occasion picking up a vacuum cleaner or other cleaning appliance (T22.16-42). With
respect to cleaning the bathroom she stated she “could use the other hand” but it was
still possible to use the right. The plaintiff admitted that the carpal tunnel would be aggravated by activities such as cleaning kitchen cupboards and scrubbing (T23.10- 14).
229. The plaintiff also admitted during cross-examination that she continued to suffer from
what she described as “mild” symptoms of carpal tunnel syndrome affecting her left
wrist at the time of the hearing. These symptoms would at times impact her ability to undertake tasks that required two hands, such as doing the dishes, cooking, and laundry. With respect to grocery shopping, the plaintiff gave evidence that she just would not go on a particular day if her left wrist symptoms were problematic. The plaintiff gave evidence that this was the position at the time of the hearing, and her left
wrist was problematic about once a month (T23.18 – 24.14).
230. The defendants submitted that the plaintiff’s bilateral carpal tunnel has been and remains a significant impediment to the plaintiff’s activities of daily living.
231. I accept on the evidence that the plaintiff’s bilateral carpal tunnel is an impediment. I
do not accept that, on the evidence, it is related to the accident.
Plaintiff’s Submissions on loss of earning capacity
232. The plaintiff made the following submissions:
• There is no doubt that the plaintiff suffered a loss of earning capacity. The issue is what is the nature and extent of that loss. The plaintiff's claim is that she would have proceeded with study and that she would have ultimately obtained accountancy qualifications. • The plaintiff had worked whilst having children. She expressed a desire to become an accountant and had taken steps in that regard. The plaintiff would have earned not less than $50,000 to $55,000 per annum which converts to approximately $42,203 to $45,578 net per annum or $812 to $877 net per week. • Her ambition to be an accountant was expressed to others and corroborated by three witnesses. The plaintiff had qualified herself with a MYOB course and had in place arrangements which would have helped pursue her goal as an accountant. • The plaintiff’s case is that she would have been working as an accountant and earning $45,553 (net). There is no doubt that the plaintiff had suffered a loss of earnings at least as per the amount outlined in the defendants' Earning Capacity Assessment report in the amount averaging from $50,000 to $55,000 per annum. Further, if she had obtained her accountancy qualification and worked as an accountant, the amount would have been greater.
Plaintiff’s submissions on future loss
233. The plaintiff made the following submissions:
•
The plaintiff is prevented from having any realistic prospect of obtaining employment now and in the future so long as her symptoms persist. This is because she will require at a minimum a standing desk, to have the ability to walk around and a requirement to remain seated for any significant amount of time due to her injuries to her lower back and neck. When applying for employment, as a matter of honesty, the plaintiff would need to notify the potential employer of her disabilities and physical limitations. When competing with other applicants with no special requirements, her chances of obtaining employment whilst her symptoms persisted, are minimal.
•
Based on the above, the plaintiff will need to be compensated for ongoing loss of earning capacity. For that to occur, it is not necessary for the plaintiff to establish a potential loss of earning capacity on balance of probabilities, it merely needs to be a probability: Medlin v The State Government Insurance Commission (1995) 182 CLR 1.
Consideration – Economic Loss
234. The defendants submitted that there is a fundamental problem with the pleaded case with respect to economic loss. The Statement of Particulars and Statement of Claim proceed on the exclusive basis that the plaintiff would have qualified and commenced working as a qualified accountant on a full-time basis had the accident not occurred.
235. The plaintiff agreed during cross-examination that, when the accident happened, she
was “nowhere near qualifying as an accountant”, and distanced herself from the
Statement of Particulars in this respect (T61.6-17).
236. The plaintiff's case was argued on the basis that the plaintiff would have qualified as an accountant before commencing work. This was not made out on the evidence. During cross-examination, it became apparent that the plaintiff had no relevant understanding of what was involved in qualifying as an accountant (T61.24-62.8).
237. The plaintiff’s understanding of what was involved in becoming an accountant could
only be described as rudimentary at best.
238. The plaintiff, at the time of the motor vehicle accident, had a limited history of work and
study. According to a document referred to as a “CV” (Exhibit 3, p. 1-5) during the
course of the proceedings, a document updated for the purpose of these proceedings,
the plaintiff’s work experience was stated as the following:
(a) October 2005 – March 2006 – Receptionist/Administrative Assistance at Capital Region Development Board.
(b) March 2006 – March 2007 – Trainee Receptionist/Administrative Assistant at Australian General Practice Network.
(c) March 2007 – June 2007 – Executive Administrative Assistant at Australian General Practice.
(d) July 2007 – August 2007 – Receptionist/Administrative Assistant at PKF Chartered Accountants.
239. The defendants submitted that the plaintiff had particularised less than two years’
experience, the most recent being significantly some nine years prior to the motor vehicle accident. The plaintiff confirmed that work at PKF was her last pre-accident employment in examination-in-chief (T9.43). The period of nine years without working prior to the accident is of substantial significance in this context. When pressed in cross- examination, the plaintiff gave evidence that she had some work since 2007, in particular in 2010 doing some babysitting for a family visiting Australia from Malaysia and babysitting for the company Mary Poppins Nannies Pty Ltd (T51.20-52.35). When enquired as to the Mary Poppins role, the following exchange ensued (T52.25-26):
When I say how did you find it, how did you get the job?---Well, I just figured that I was looking for something that I could do nights that I might have been able to continue on after Zoe was born. So, I just thought nannying you could do at night time, so I looked on line.
And was it a casual job? ---It was just if they had jobs, they would call and if you accepted it,
you accepted it, if you didn’t, you didn’t.
And was it the case that that job was attractive because with a family you had to work around those obligations? ---Yes.
240. In her evidence in chief the plaintiff gave the following evidence (T6.14-36):
Prior to the accident, did you have an intention in relation to what you wanted to do with your life in terms of work?---Yes.
What was that?---To become an accountant.
Had you taken any steps towards that goal?---Yes.
What steps had you taken?---I studied at CIT through flexible learning, so night classes in
2015.And how did that fit in with the children? How did you manage that with the children at home?- --I studied at night with flexible learning, so I didn't have to attend during the day when I had my children, and at night time they were with Jamie.
Yes. How did you progress with your studies?---I was still studying in 2015 and was going to continue in 2016. However I took the first part of that off because my first child was very
colicky and being Jamie’s first child, he wasn't confident to take care of her.
So you took a little time away from your studies?---Yes.
How long did that last? ---I was returning mid that year, however the accident happened in
May, so a month before I was going back.
So were you able to ever resume those studies? ---No.
241. On the issue as to whether the plaintiff had attempted to return to study since the accident, the following evidence emerged (T53.19-23):
But just in terms of my question, you did not attempt to return?---No.
And you say because of your neck; is that you assuming that you couldn't do it?---That's me not being able to sit in front of a laptop for at least an hour. I don't see how I can study full- time not being able to put in the hours.
242. The plaintiff conceded that she had made no attempts to return to study or look for a job since the accident (T54.43-55.20). The plaintiff gave evidence that she intends to
return to study when “she can get her neck sorted” (T61.22-25).
243. The defendants submitted that to the extent the plaintiff would have returned to study, it was likely her studies would have been fragmented and inconsistent without her completing courses as had been the case for many years prior to the accident.
244. The evidence, in my view, supports the defendants’ submission in this regard.
245. Despite enrolling in 5 courses with CIT since 2005, the plaintiff only completed one in
2005, a Certificate II in Business in 2005 – 11 years before the accident (T59.35).
Documents produced by CIT note that the plaintiff enrolled in but did not complete the following courses:
(a) 2005 – Diploma of Business Administration. (b) 2005 – Certificate III in Financial Services (Accounts Clerical) (partially completed).
(c) 2008 – Diploma of Accounting – withdrew attendance. (d) 2015 – Certificate III in Accounts Administration – partially completed (the plaintiff ceased prior to the accident but says she intended to resume the
month following had the accident not occurred).246. The defendants submitted that the evidence clearly establishes that the plaintiff has the capacity to work. In his report dated 6 December 2019, Dr Brooder noted (Exhibit 6,
p. 123): Miss Poole’s ability to engage in employment as an accountant will initially depend upon her
completing part-time tertiary studies in accounting.
As there is a reasonable prospect of an improvement in Miss Poole’s current symptoms anddisabilities following further specific treatment and with the passage of time, then it would be unlikely that her injuries that have been diagnosed will adversely impact upon her ability to engage in employment as an accountant in the future.
247. The plaintiff’s own medical expert does not appear to support the proposition that
employment would be adversely affected in the future.
248. In giving evidence, the plaintiff accepted that she has skills suited to working in an office-based environment (T65.1-14). The defendants submitted that she has not worked in such an environment for reasons unrelated to the subject accident.
249. The defendants referred to the plaintiff’s submission that she does not have (PWS [45]):
…any realistic prospect of obtaining employment now and into the future so long as her
symptoms persist. This is because she will require at a minimum a standing desk to have the ability to walk around and a requirement to remain seated for any significant amount of time due to her injuries to her lower back and neck.
250. The defendants submitted that the basis for this submission is unclear. There is no qualified evidence in this case to support the proposition advanced. Whilst the plaintiff
accepted during cross-examination that she could work part-time with a “proper set up”,
(T65.16-34) and Dr Brooder acknowledged the existence of sit/stand desks, (T149.11)
neither of these factors support the proposition advanced.251. It is relevant to refer to the Earning Capacity Assessment report of Andrew Hook, Vocational Consultant, dated 14 July 2020 (Exhibit 2, p.27). Mr Hook expressed the view that, having regard to her history of study, it was unlikely that the plaintiff would have completed the Certificate III in Accounts Administration and commenced work in an accounting role in February 2017. Mr Hook was not required for cross-examination and his opinion was unchallenged.
Consideration – Past economic loss
252. The defendants submitted that the plaintiff has made no attempt to return to study or seek work since the accident occurred. The plaintiff clearly has had a capacity to work, but she has chosen not to, despite there being a number of roles available to which she is well-suited. The defendants submitted that no allowance should be made for past economic loss. In my view, taking into account all the evidence, a small buffer in the amount of $20,000 is appropriate in this case, taking into account the initial injury and the low grade mood disorder.
Consideration – Future economic loss
253. The defendants submitted that the high point of the plaintiff’s case with regards to work
capacity is the opinion of Dr Brooder, a neurologist. The defendants submitted that Dr Brooder expressed the view that the plaintiff had a reduction in earning capacity on account of the accident, it became obvious during cross-examination that limited thought had gone into this assertion.
254. The defendants submitted that Dr Brooder proceeded on the incorrect assumption that, before the accident, the plaintiff had completed 6 years of part-time study, preceded by 6 years employment as an office manager. The doctor eventually conceded that he had simply assumed that her ability to work as an office manager would be adversely affected (T148.22-28). Furthermore, he conceded that he had not discussed with the plaintiff what jobs she could or could not do in coming to the conclusion that her ability to work would be adversely affected (T148.40-45).
255. The defendants submitted that although Dr Brooder would not concede that he was overreaching insofar as his expertise was concerned, with respect, he plainly was. It
was submitted that Dr Brooder’s opinion with respect to the plaintiff’s work capacity
should be given no weight.
256. In my view the plaintiff has not established, on the evidence, any substantial future economic loss taking into account the following principles.
Relevant principles concerning economic loss
257. In State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] the court noted the following:
…. strictly the issue does not turn on a comparison between what money the plaintiff would
have earned apart from the injury and what money the plaintiff will earn after the injury. The
compensable loss is not a loss of income but the loss of capacity to earn income in a
manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities...
(emphasis added)
258. In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ
said: “the ascertainment of earning capacity involves an evaluation of possibilities, not
establishing a fact as a matter of history.” The court approved Lord Diplock’s statement
in Mallett v McMonagle [1970] AC 166 at 176:
in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages.
Damages for future economic loss
259. The defendants strongly dispute the assertion that the plaintiff has suffered a loss of earning capacity, and also that any loss of capacity (if so found) is or will be productive of financial loss having regard to the foregoing. With respect to the former, there is limited objective evidence supporting the proposition that there has been a reduction in earning capacity on account of the accident. Having regard to the latter, the defendants submitted that it is likely that the plaintiff would not have returned to work or, at least, substantial employment as alleged regardless of whether the accident had occurred.
260. The defendants' primary submission is that there should be no allowance for future economic loss or loss of earning capacity.
261. I am not satisfied on all the evidence that the plaintiff has established a significant ongoing physical incapacity on account of the subject accident. Nevertheless, on all the evidence including the evidence of Dr Knox, a small buffer of $10,000 is appropriate in light of the low grade mood disorder arising from the accident: see Hoblos v Alexakis at [159]; [195].
Consideration – Future treatment expenses
262. The plaintiff claims $25,000 with respect to future medical expenses (presumably by
way of a “buffer”). The defendants submitted that the evidence establishes that any
ongoing effects are minimal, and are likely to be attributable to the plaintiff’s underlying
degenerative issues to the extent they are in fact required.
263. The plaintiff gave evidence that, after physiotherapy, her symptoms only “felt better for
a day or so after” (T36.19-24). She also accepted that physiotherapy treatment only
provided short-term relief for a few days. The plaintiff also conceded that she had not seen a psychologist or psychiatrist in the four years since the accident, and had not taken any anti-depressant medication during that period (T49.19-34).
264. The plaintiff has not received any treatment since 2019 and the medical evidence does not support that she requires any ongoing treatment as a result of the accident. The defendants submitted that the extent further treatment is or will be required it is on account of unrelated issues, namely the carpal tunnel syndrome or progression of underlying degeneration at the cervical and lumbar spine.
265. Having regard to the foregoing, the defendants submitted that there should be no allowance for future out-of-pocket expenses.
266. The defendants submitted if the court is persuaded that the plaintiff requires ongoing treatment as a consequence of injuries suffered in the motor vehicle accident, it is submitted that an allowance should be made for no more than 10 years, by which time any ongoing need will not be due to the accident. In that context the defendants submitted that an allowance of $10 per week on account of general practitioner consultations, conservative treatment and medication should be made. Accordingly, if the court is satisfied that there remains ongoing sequelae on account of the accident it is submitted that an allowance of $4,518 is appropriate (10 x 451.8). In light of the Knox Report, I am satisfied that a buffer of $5,000 is appropriate for the low grade mood disorder and amaxophobia.
Summary of findings
267. I have made the following findings.
(a) I am not satisfied on the balance of probabilities that the plaintiff continues to have any significant ongoing physical disability as a result of the accident: [82]; [190]. (b) I am not satisfied on the evidence to the requisite standard that the stated plan by the plaintiff to become an accountant had a realistic foundation: [81]. (c) I am satisfied the plaintiff while giving her evidence tended to exaggerate the effects of her injury and disabilities: [83]-[109]. (d) I agree with the defendants’ submission concerning the surveillance footage: [115]; [125]; [128].
(e) I accept in respect of Ms Kathy Poole’s evidence that some domestic assistance was required. The extent to which ongoing assistance was
required is difficult to determine in light of the plaintiff’s evidence being
subject to exaggeration: [142].
(f) I accept in respect of Mr Hogan’s evidence that assistance was given to the plaintiff after the accident. The extent to which ongoing assistance was
required thereafter was difficult to determine, again in light of the plaintiff’s
evidence being subject to exaggeration on her part: [151].
(g) I accept the evidence of Ms Wheeler and note the reliance on Ms Wheeler’s evidence is substantially related to the assistance provided for a limited
period of several weeks post-accident: [154]-[155].(h) I am not persuaded that the left shoulder tendinosis is referable to the accident: [166]; [187]. (i) I accept Dr Brooder’s evidence that the prognosis for improvement remains
reasonably favourable. I do not accept on all the evidence that there is any
significant degree of continuing pain: [172]-[173].(j) I accept on the basis of Dr Knox’s report, a low grade mood disorder and amaxophobia as a result of the plaintiff’s accident and injury: [173]
(k) Generally I prefer the evidence of Dr Machart and Dr Reiter in this case. Their evidence aligned more clearly with the overall evidence before me in this case than the evidence of Dr Brooder: [184]. (l) I accept Dr Machart’s and Dr Reiter’s evidence in relation to the surveillance footage as it accords with my view of the surveillance footage: [125].
(m) I take into account that there are limitations in connection with surveillance. It is but a visual window on a particular day and it is now over five years since the accident. Nevertheless it does, along with the cross examination of the plaintiff and the medical evidence, tend to support a finding of exaggeration of the plaintiff’s ongoing symptoms. Dr Brooder has relied
significantly on the plaintiff’s self reporting. That self reporting is in my view,
subject to exaggeration: [218]
(n)
I accept that some past domestic assistance was required as a result of the accident: [220]
(o)
I am not persuaded that the plaintiff continues to have impairment with respect to household chores on account of the accident. I do not propose to award damages for future domestic assistance: [221]-[226].
(p)
I do not accept that the bilateral carpal tunnel syndrome is related to the accident: [227]-[231].
(q)
I do not accept that the plaintiff would have returned to successful study: [243]-[244].
(r)
In my view, taking into account all the evidence a small buffer of $20,000 is appropriate for past economic loss: [252].
(s)
In my view, the plaintiff has not established substantial future economic loss. Nevertheless, a small buffer of $10,000 is appropriate: [253]-[256]; [259]- [261].
(t)
I am satisfied taking all matters discussed above in relation to general damages that an award of $90,000 is appropriate, with 80 per cent in the past: [201].
(u) I am satisfied in respect of future medical expenses a buffer award of $5,000 is appropriate for the plaintiff’s low grade mood disorder and amaxophobia
referred to by Dr Knox: [266].
Summary of damages awarded
268. The damages recoverable by the plaintiff are summarised in the following table:
| Head of Damage | Amount |
| General Damages (80 per cent in the past) | $90,000 |
| Interest on General Damages | $7,488 |
| 5 years’ 2 months at 2% x $72,000 | |
| Past Loss of Earning Capacity (Buffer) | $20,000 including interest and super |
| Future Loss of Earning Capacity (Buffer) | $10,000 including super |
| Past Domestic Assistance | $7,805 |
| Interest 5 years’ 2 months at 2% x $7,805 | $811.72 |
| Future Domestic Assistance | $0 |
| Past Medical Expenses (Out of pocket / | $16,172.82 |
| Agreed) | |
| Future Medical Expenses | $5,000 |
| Total | $157,277.54 |
| Orders | |
| 269. I make the following orders: |
(a) Judgment for the plaintiff in the sum of $157,277.54. (b) The defendants are to pay the plaintiff’s costs of the proceedings. (c) I will hear the parties if any alternative costs order is sought within 7 days. I certify that the preceding two hundred and sixty-nine [269] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas- Karlsson.
Associate:
Date:
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