Pringle v Tabloid Pty Ltd - [2023] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PRINGLE -v- TABLOID PTY LTD [2023] WADC 18
CORAM:   LONSDALE DCJ
HEARD:   3-6 OCTOBER & 7 DECEMBER 2022
DELIVERED          :   24 FEBRUARY 2023
FILE NO/S:   CIV 1502 of 2016
BETWEEN:   KARIS LOUISE PRINGLE
Plaintiff
AND
TABLOID PTY LTD
Defendant

Catchwords:

Assessment of damages - Torts - Causation - Pre-existing condition - Psychological injury - Failure to mitigate - Novus actus interveniens - Loss of earning capacity

Legislation:

Civil Liability Act 2002 (WA), s 9, s 10A

Result:

Judgment for the plaintiff
Damages to be assessed at $1,126,045.39

Representation:

Counsel:

Plaintiff	:	Mr D R Clyne
Defendant	:	Mr A A Nolan

Solicitors:

Plaintiff	:	SJB Legal
Defendant	:	McCabes

Case(s) referred to in decision(s):

Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208
Bowen v Tutte (1990) Aust Torts Reports 81-043
Fontaine v Quality Platers (1994) 12 WAR 71
Gamser v Nominal Defendant (1977) 136 CLR 145
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jongen v CSR Ltd (1992) Aust Torts Reports 81-192
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Pene v Murphy [2004] WASCA 103
Purkess v Crittenden (1965) 114 CLR 164
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15

LONSDALE DCJ:

Introduction and overview of issues

At about 5.30 pm on 22 May 2013 the plaintiff, who was then 26 years of age, went to the Chicken Treat in Bunbury and purchased meals for herself and her 9-year-old son, Kayne. The meals contained a serving of fried potato chips, which had been contaminated with caustic soda.
As the plaintiff drove away from the store, she and her son began to eat the chips. Shortly after, she experienced tingling and burning sensations in her mouth. She thought that the oil used to cook the chips might have been off. She phoned the Chicken Treat store to inform them of the problem, but nobody answered.
At about 5.50 pm the plaintiff returned to the store. She presented the chips to a member of staff who told her that the chips had been contaminated with a 'mild cleaning agent'. She was advised to rinse her mouth out.
The plaintiff and her son returned home. The plaintiff continued to experience discomfort. She again contacted the store. This time a member of staff told her to present to hospital.
The plaintiff and her son attended the emergency department of the Bunbury Regional Hospital. Later that evening, she was transferred to Sir Charles Gairdner Hospital via the Royal Flying Doctor Service. Her son remained in Bunbury Hospital.
Because of the ingestion of the contaminated chips, the plaintiff suffered caustic burns to her upper gastrointestinal tract.
The plaintiff's physical injuries resolved but she continued to experience symptoms of pain and discomfort.
Sometime after the incident, the plaintiff was diagnosed with neuropathic pain disorder by her pain specialist and post-traumatic stress disorder (PTSD) by her treating psychiatrist. Since then, she has continued to suffer from poor mental health and to experience pain and discomfort.
At the time of the incident, the plaintiff had been working full‑time in administration for the company Boom Logistics. Following the incident, the plaintiff was unfit for work for about seven days and thereafter she returned to work full-time. Although the plaintiff did return to full‑time work, she continued to experience severe physical and psychological symptoms which she claims affected her ability to work effectively.
The plaintiff continued to work full-time at Boom Logistics until she accepted an offer of redundancy in January 2015. After accepting the redundancy, the plaintiff applied for other work without success. The plaintiff has since given birth to two daughters and has not returned to work.
The plaintiff submits that her symptoms, which have not abated to any significant degree, have rendered her incapable of work. To this day, the plaintiff experiences sensations of pain and discomfort caused by the ingestion of certain types of food and drink and in response to certain stressors. She continues to suffer from symptoms of anxiety. The plaintiff's enjoyment of life has been adversely affected to a significant degree.
The defendant initially denied liability and a trial on the issue of liability commenced before me on 31 October 2019 but was adjourned part heard.
On 30 September 2021, the defendant finally admitted liability and I was therefore not required to make a finding on the issue of liability.
The matter came before me for an assessment of damages.

The issues

The various medical experts who have either examined or treated the plaintiff do not dispute that she has suffered, and continues to suffer, from symptoms of pain, discomfort and poor mental health. However, the defendant disputes the quantum of the plaintiff's claim for past and future economic loss and submits that the plaintiff has not established, apart from a brief period, any loss of earning capacity attributable to the incident.
The plaintiff ceased work because of the offer of redundancy in 2015. Subsequently, the plaintiff gave birth to two children. The defendant submits that each event amounts to a novus actus interveniens.
The defendant further submits that the plaintiff has failed to mitigate her loss by refusing psychological treatment which would be likely to have significantly improved her symptomology.
There are four main areas of dispute relevant to the assessment of damages.
The first is whether the plaintiff suffered a loss of earning capacity attributable to the incident and, if so, to what extent.
The second is whether the plaintiff's decision to accept redundancy in early 2015 was a novus actus interveniens.
The third is whether the plaintiff's decision to have further children was a novus actus interveniens.
The fourth is whether the plaintiff's condition is likely to improve with psychotherapy, and whether the plaintiff has failed to mitigate her loss by refusing treatment.

Overview of evidence led at trial

The plaintiff gave evidence and called three civilian witnesses, namely her long-term partner, Luke Guppy, her son Kayne Pringle and a former co‑worker Laura Nihill.
The plaintiff tendered written reports of, and adduced oral evidence from, her general practitioner, Dr Mark Hall, her treating psychiatrist, Dr Lance Risbey, pain specialist, Dr Phillip Finch and consultant psychiatrist, Dr Frederick Ng.
The defendant tendered written reports of, and adduced oral evidence from, Dr Iyad Dayoub, a consultant occupational physician and Dr Helena Piirto, a consultant psychiatrist.
The plaintiff tendered documents evidencing her income relevant to the assessment of future earning capacity.

The plaintiff's evidence

The plaintiff's evidence at trial contained details of her personal history, an account of the incident, and the effect that it has had on her in the immediate aftermath and beyond.
The plaintiff gave evidence that, on the day of the incident, she went to Chicken Treat in Dalyellup with her son, Kayne, and ordered meals with a serve of chips. She took a couple of chips and put them in her mouth. At first, she did not notice anything untoward and had helped herself to some more chips. She then noticed an odd taste - a sensation which she could not describe. She asked her son Kayne to taste the chips to see if they tasted funny. She thought the oil might have been off. She started to feel funny so she drove back to the store. By the time she got back to the counter, her mouth and lips were burning.[1]
[1] ts 125.
The plaintiff asked the owner of the store what was wrong with the chips and was told 'It's a mild cleaning product. Go home. Wash your mouth out. You'll be right'. The plaintiff then instructed Kayne to go to the bathroom and rinse his mouth out. After Kayne came out of the bathroom, her mouth was burning. She then drove to an after-hours doctors' surgery to see a GP. The doctor told her to go home and drink some milk. She went home and soaked her mouth with milk to try and relieve the symptoms. After about an hour, her mouth was still tingling.[2]
[2] ts 126.
The plaintiff called the Chicken Treat store again and spoke to a person who asked her if anybody had called her yet and she said 'no'. The person told her that poison control had been called and that she should go to the hospital. The plaintiff then presented to Bunbury hospital with Kayne. They were told to rinse out their mouths. She was starting to feel unwell: her lips began to blister and she started vomiting.[3]
[3] ts 127.
Just before midnight the plaintiff was flown to Sir Charles Gairdner Hospital by the Royal Flying Doctor Service.[4] There she received numbing treatment and underwent an endoscopy. She discharged herself after two days because Kayne, who had also been poisoned, had remained in Bunbury.[5] She saw her general practitioner, Dr Hall, the day after she was discharged.[6]
[4] ts 128.
[5] ts 128.
[6] ts 128.
Over the ensuing days the plaintiff says that she did not eat but 'lived off Powerade'. After three or four weeks she began to get ulcers across her mouth. She described shards of skin coming off the roof of her mouth (something which she says is still happening today).[7]
[7] ts 129.
The plaintiff says she gets pain in the 'middle-left quadrant' (stomach). She described the sensation as feeling like a 'stitch' that a person would get from going for a run. When this pain comes on, it takes two days to go away.[8]
[8] ts 129.
After the incident, the plaintiff decided to focus on work. She claims she took a further two or three days off and then continued to work at Boom Logistics.[9]
[9] ts 129.
The plaintiff said that, following the incident, she developed irritable bowel [syndrome]. She did not know what that was at the time but she recalls that she went to the toilet a lot.[10]
[10] ts 129.
The plaintiff said that Dr Finch had given her a solution to swallow and rinse her mouth out to reduce her symptoms. He also administered Botox to her 'vertebrae'.[11] The plaintiff said that the oral treatment would alleviate her pain for about two hours; the nerve and Botox blocks would last a few weeks and then they would wear off.[12]
[11] ts 134.
[12] ts 135.
The plaintiff said that she trialled medications prescribed by Dr Risbey but they did not assist her at all.[13]
[13] ts 134.
The plaintiff said that she saw a psychologist 'numerous times'.[14] She ceased treatment with the psychologist because she 'did not need to be told how to breathe' and did not see any benefit from the treatment. (The medical records show the plaintiff attended the psychologist Pamela Richardson on three occasions, namely 31 May 2013, 20 June 2013 and 4 July 2013.)[15]
[14] ts 134.
[15] Plaintiff's schedule of special damages.
The plaintiff said that, at the sessions with the psychologist, depending on the situation, she would either shut down, cry or 'go off [her] face'. She would be angry with everyone.[16]
[16] ts 135.
The plaintiff's evidence was that, since the beginning of 2015, her symptomology has progressively worsened. The pain she experienced in her side used to be a dull pain but now it is 'really sharp'. She described her pain as one which would 'put [her] on the floor'.
The plaintiff's evidence was that she is unable to eat anything other than a bland diet: nothing hot, cold or salty. She described the adverse sensation in her mouth as being like putting her tongue 'on the end of a Nokia charger … it gives you a zap'. She now only drinks water.[17] She described the sensation of having recently eaten toast and feeling cuts and then 'shards of skin' coming down off her mouth.[18] The plaintiff said that blistering to her mouth occurs frequently unless she eats bland food and drink (with no heat and spices).[19] She is able to eat rice without sauce or salt and a little bit of olive oil. She will eat vegetables and legumes but no longer eats meat and cheese because it gives her irritable bowel syndrome.[20]
[17] ts 135.
[18] ts 136.
[19] ts 146.
[20] ts 136.
The plaintiff said that, after the incident, she lost a significant amount of weight but has now put it all back on because she cannot exercise.[21]
[21] ts 147.
The plaintiff decided to have more children after being rejected for several jobs and reporting no improvement in her condition. The plaintiff said that, prior to having her two youngest children, she was 'really down' and had been doing nothing except sitting at home and occasionally having friends over.[22] It had not been her idea to have more children, but her partner (Luke Guppy) had suggested they should have more children so she would have something to look forward to.
[22] ts 137.
The plaintiff said that, before she gave birth to her daughters, she would take painkillers and sedate herself so she would not have to feel pain.[23] She ceased using painkillers when she became pregnant because she 'did not want to affect the unborn foetus'.[24] Since having her children, the plaintiff has not taken painkillers because she 'would like to be a functioning parent'.[25]
[23] ts 136.
[24] ts 137.
[25] ts 138.
The plaintiff said that, before the birth of her daughters, her daily routine consisted of having a shower 'occasionally'. She passes her time reading or watching videos of people who have gone through trauma. She finds housework difficult. For example, when hanging out washing to dry, she needs to stop because her stomach area hurts. She used to enjoy gardening, but now struggles to do gardening jobs within a reasonable amount of time. She might walk the dog down the street and back or sit in the sunlight and throw a ball, but cannot walk a long distance.[26]
[26] ts 147.
The plaintiff said she had taken antidepressants about a year or two prior to the incident, having been prescribed them by her general practitioner. However, she had ceased taking them because that was 'not the type of person that I was'.[27]
[27] ts 148.
The plaintiff said she no longer trusts other people touching or making her food or going near her food or drinks. She no longer has much of a social life. She has a couple of friends who understand how she feels, and they will come to her home and she will do the cooking. The plaintiff says she suffers from anxiety and does not trust people anymore or being around people.[28]
[28] ts 130.
The plaintiff said she was prescribed Lexapro after the incident.[29] She still takes Lexapro to this day. She takes painkillers as required and if she has someone at home to look after her kids.[30]
[29] ts 163.
[30] ts 164.
Previously, the plaintiff had played and coached netball. She went camping with Mr Guppy and their son, travelled overseas, and enjoyed going to the beach. Since the incident, she has not played netball because it causes abdominal pain when she moves.[31]
[31] ts 138.
The plaintiff said she had not gone camping since the incident because she does not want to be anywhere and having to go to the toilet a lot.[32]
[32] ts 139.
Since the incident, the plaintiff has not been on any overseas trips. She said she had recently declined an invitation to her sister's wedding in Italy.[33]

The plaintiff's personal history, education, employment and future ambitions

[33] ts 139.

The plaintiff was educated at Newton Moore Senior High School in Bunbury. Whilst still at school she worked at McDonald's on a casual basis.
The plaintiff left high school in Year 11 when she was 16 years old at around the time she gave birth to Kayne. She stayed at home until Kayne was 2 or 3 years of age and then obtained employment as a receptionist for Geographe Enterprises. She remained in that position for about five years before being promoted to the role of costing clerk, a position which she retained for a couple of years.[34]
[34] ts 121.
The plaintiff left Geographe Enterprises four years prior to the incident to take up a position with the mining company Boom Logistics. The plaintiff claimed that her position at Boom Logistics was managing the maintenance for a fleet of 96 trucks and trailers on Barrow Island.[35]
[35] ts 121.
The plaintiff claims that she was very ambitious and career driven. She considered she was well-regarded: she had received pay increases and her range of duties had increased.[36]
[36] ts 122.
The plaintiff said she had wanted to pursue a career working fly‑in, fly‑out (FIFO). She said that her partner, Luke Guppy, had planned to work in the Bunbury area and was happy to stay at home. They had not planned to have more children as she was focussed on her career.[37]
[37] ts 123.
The plaintiff said that she had planned to undertake further study: she had spoken to the local TAFE and one of the professors at either Curtin or Edith Cowan University. She had wanted to do a bridging course through TAFE to get into university and a business development course. She wanted 'all the backup' she needed to pursue a career working away. She had hoped to study part-time whilst working.[38]

Performance at work after the incident

[38] ts 124.

The plaintiff said that, after the incident, her capacity to do her job properly was affected. She returned to work but was continuing to suffer symptoms that impacted the way she worked. She struggled to sit for long periods of time because of the pain in the left side of her stomach.[39]
[39] ts 130.
The plaintiff said she often needed to run back and forth to the toilet. She had been 'snappy' with clients. She began tolerating less and less. When people produced food in her presence, she would walk away and leave.[40]
[40] ts 130.
The plaintiff said that her employer gave her the option to take a redundancy or move to Perth (towards the end of 2014). She did not wish to move to Perth because Bunbury was her home, so she accepted the redundancy in mid-January 2015.[41]
[41] ts 131.
The plaintiff agreed she had managed to continue to work (for the same employer) for 18 - 20 months after the incident. After being made redundant in mid-January 2015 she applied for a couple of jobs in the mining industry but was unsuccessful. She said she 'lowered [her] scale' and 'just went for administration jobs'.[42]
[42] ts 131.
The plaintiff tendered some emails referring to the job application site 'Seek' for jobs advertised in early 2015[43] as proof of her efforts to obtain alternative employment. The emails indicate that between 19 January 2015 and 4 February 2015, she applied for jobs as an account manager, a procurement coordinator, an office administrator, a commercial and contract administrator and an office and accounts administrator.
[43] Exhibit 1; ts 133.
The plaintiff said she had still wanted to pursue a career but had come to the realisation she could not return to work. After encouragement from Mr Guppy, she decided to have further children. Her daughter Graesyn was born on 4 September 2019 and her daughter Rhemy was born on 27 October 2021.[44]

The plaintiff's evidence as to her future career ambitions

[44] ts 120.

The plaintiff claims that she was ambitious to have a career and to be a FIFO worker. She hoped to earn more money than she had been earning at Boom Logistics.[45] Although Ms Pringle had been described as a receptionist in her tax returns of 2012 and 2013, she denied that she was merely a receptionist and claimed to have been a 'maintenance manager'.[46]
[45] ts 149.
[46] ts 153.
Under cross-examination, the plaintiff was asked what had become of the letter confirming her redundancy. She said she probably 'would have ripped it up and thrown it in the bin'.[47]
[47] ts 155.
The plaintiff denied the suggestion by counsel for the defendant that she had not made any enquiries into studying at TAFE or university while at Boom Logistics, as she claimed. She conceded that she had not actually submitted any application to go to TAFE as she had been waiting for the following year to apply.[48] The plaintiff maintained, however, that she had filled out the application forms but 'would have thrown them in the bin' because '[she] was angry that [she] got poisoned by caustic'.[49]
[48] ts 158.
[49] ts 159.

The plaintiff agreed in cross-examination that, between the birth of her son when she was 16 years of age and working at Boom Logistics at the age of 25 or 26, she had not in fact submitted any application to study at university. The plaintiff said she did make an application to TAFE but was unable to do the TAFE courses as her work schedule did not enable her to do so.[50]

Plaintiff's evidence about her current capacity for work

[50] ts 159.

The plaintiff's evidence was, to the effect that, she is not currently capable of working because she continues to experience pain and discomfort and psychological distress which significantly affects her ability to function in everyday life.
The plaintiff was challenged in cross-examination about her capacity to cope with work. In cross-examination, counsel for the defendant put to her that she had told Dr Dayoub [at her appointment with him on 18 August 2020] that she could manage all of the normal activities of daily living. She denied having so informed him.[51] The plaintiff said she told Dr Dayoub that she had required extended absences from work for sickness.[52]
[51] ts 175.
[52] ts 176.
Counsel for the defendant challenged the plaintiff's evidence about the reasons for her decision to have more children. She conceded that she had told Dr Piirto that she was happy in her role as a mother. If she had not told Dr Piirto about her intention to return to the workforce, it was because she had been rejected for a job a number of times and because she had been on medication.[53]
[53] ts 183.
The plaintiff admitted she had not applied for any jobs recently but if a job came up that would suit someone who 'can't work properly' she would take it.[54]

The plaintiff's evidence about the need for painkillers

[54] ts 184.

Under cross-examination, the plaintiff denied the suggestion that her need to resort to painkillers is now only intermittent. She said that she did not take painkillers every day because she had children to look after.[55]
[55] ts 165.
The plaintiff was challenged in cross-examination about what she had told Dr Dayoub about her need for painkillers and anti-anxiety medication. She acknowledged that Dr Dayoub's report recorded her as having informed him (on 18 August 2020)[56] that she was taking Lexapro daily but did not require analgesia.[57]
[56] ts 173.
[57] ts 173.
The plaintiff denied having told Dr Dayoub that she had ceased taking painkillers. She then volunteered that she had had a 'horrific birth which required an episiotomy' and for which painkillers were required.[58] Under cross‑examination, the plaintiff denied having been untruthful to Dr Dayoub about not needing painkillers and not working since the incident. She suggested that Dr Dayoub may have misinterpreted what she said.[59]

The plaintiff's reasons for her failure to pursue psychotherapy

[58] ts 174.

[59] ts 175.

The plaintiff said that, since Dr Risbey had retired, she had not received any ongoing psychiatric or psychological treatment.[60] She saw one other psychiatrist at the same practice as Dr Risbey's but she had not wanted to 'keep rehashing something that had absolutely ruined [her]'.[61]
[60] ts 168.
[61] ts 169.
When challenged in cross-examination as to why she had not undergone any psychological or psychiatric counselling since, the plaintiff responded, 'I'm not a millionaire'.[62] The plaintiff agreed that she had private health insurance but said she had to 'pay out of pocket'.[63]
[62] ts 169.
[63] ts 187.
The plaintiff agreed she could utilise Medicare to pay for psychological treatment[64] but she believed the treatment and the drugs had not worked. She was not prepared to continue to keep rehashing everything and 'lose [her] shit' around her children.[65]

The plaintiff's evidence of pre-existing mental health conditions

[64] ts 187.

[65] ts 188.

The plaintiff agreed in cross-examination that she had taken Lexapro for a period of about 11 or 12 months in 2012. She could not recall the reason for it being prescribed but it was 'something to do with a big contract at work'.[66] The plaintiff denied having seen a psychiatrist prior to the incident.[67]
[66] ts 162.
[67] ts 163.
The plaintiff was asked in cross-examination about whether she had told Dr Piirto that she suffered from anxiety or depression in 2013.[68] The plaintiff then became very distressed and said that she felt 'stupid' that she was unable to remember things. She could not recall having told Dr Piirto about suffering anxiety or depression prior to 2013 or telling her about her previous psychological troubles.[69]
[68] ts 177.
[69] ts 182.

Observations on the plaintiff's evidence

The plaintiff presented as tense, angry, defensive and combative in her evidence. She was at times labile and appeared to be experiencing discomfort. At times she clutched the side of her stomach. At one point, she asked for permission to stand so she would be more comfortable. There were a couple of angry outbursts.
The plaintiff presented as reasonably intelligent and articulate. However, on occasions her answers were not responsive to the questions asked of her and she appeared to have difficulty answering very basic questions.
There were aspects of the plaintiff's evidence which appeared implausible. For example, when asked why she had been prescribed antidepressants prior to the incident, she said she was unsure of the reasons.
By reason of the foregoing, I have some reservations about the reliability of the plaintiff's evidence. However, I do not consider she was deliberately lying or exaggerating her symptoms to advance her claim. On the contrary, I find that the plaintiff's demeanour was consistent with the complex psychiatric presentation observed by both her treating psychiatrist and Dr Piirto (which I will discuss later in these reasons).[70]
[70] ts 247.
My assessment of the plaintiff's truthfulness as a witness is consistent with the evidence of Dr Piirto that the plaintiff was not malingering or feigning her physical complaints. Dr Piirto was of the view that much of the plaintiff's profile was driven by subconscious factors. In her evidence, Dr Piirto explained that she believed the plaintiff had an underlying tendency to (low-grade) anxiety and that this incident caused a snowball effect and that she was not deliberately malingering.[71]
[71] ts 323.
Having regard to the evidence of Dr Ng and Dr Piirto, I accept that the plaintiff's excessively emotional presentation in the witness box is not indicative of her being deliberately untruthful or feigning symptoms of distress for effect.

Evidence of the witness Kayne Pringle

Kayne Pringle was born on 4 August 2003. He is 19 years of age and still lives at home with the plaintiff and his father. He is an apprentice fitter/machinist.
Prior to the incident, he recalls the family engaging in various activities like going to the playground and doing sport. He recalls the plaintiff used to help him with sport and he would help her with netball coaching.
After the incident, he said they hardly went on any family events. He said that his mother is stuck at home and he, along with his grandmother, helps her look after the two children. He assists with the household chores such as vacuuming, mopping the floors, doing the dishes, preparation for dinner and getting the girls ready for bed.[72]
[72] ts 298.
Mr Pringle observed that his mother would lie on the couch, too sick or exhausted to move. On a few occasions she had been so sick that she had collapsed and he had to help her.[73]
[73] ts 298 - ts 299.
Under cross-examination, Mr Pringle agreed that when his father is at home they split the housework.[74] When he was a child however, he agreed his mother and father did most of the household chores.[75] When his mother was too exhausted to look after the children he would look after them and would also look after them when his father was away.[76] Mr Pringle was asked whether his mother continued to work full-time after the incident to which he said 'I'm not too sure'. It was put to him that she continued to work for a period of about 18 months but he said, 'Again, I'm not too sure'.[77]
[74] ts 299.
[75] ts 300.
[76] ts 300.
[77] ts 301.

Evidence of Luke Ian Guppy

Mr Guppy is the plaintiff's de facto partner and father of Kayne, Graesyn and Rhemy.
When Kayne was born Mr Guppy was still a third-year apprentice. After he finished his trade qualifications he had a full-time role working for Geographe Engineering as an automation shop coordinator.
Mr Guppy said that, after Kayne had turned 2½ or 3, the plaintiff returned to work.[78] The plaintiff initially worked for Geographe Engineering full‑time. During the day, Kayne either went to kindy or was looked after by the plaintiff's mother.
[78] ts 290.
Mr Guppy recalls the plaintiff working at Geographe Engineering for three years before taking up employment at Boom Logistics.[79]
[79] ts 291.
Mr Guppy said that he and the plaintiff had discussed whether to have more children many times. Mr Guppy said that he was a family‑oriented person and liked kids. The plaintiff was 'more or less on the other side of it'; she had wanted to pursue a career and have her own independence and they had decided to not have any more children.[80]
[80] ts 291.
Mr Guppy said they discussed how the plaintiff could progress her career. They had looked into courses she could do at TAFE to pursue 'the management side of things'.[81]
[81] ts 292.
Mr Guppy said he had suggested they have more children to give the plaintiff something to focus on and some joy in life.
Mr Guppy said that the plaintiff had changed after the incident. She used to be very outgoing. They had liked going to the beach, the movies and for dinner but now she did not want to go anywhere and she has no energy.[82]
[82] ts 292.
Under cross-examination, Mr Guppy agreed that their two daughters did bring joy to the plaintiff's life. He said, 'that's what she lives for'.[83]
[83] ts 294.

Evidence of Laura Jane Nihill

Ms Nihill gave evidence that in 2010 she commenced employment at Boom Logistics and worked in the same building as the plaintiff, who was looking after the maintenance for 'Gorgon'.[84]
[84] ts 285 (a reference to an offshore gas project).
Ms Nihill recalls that when she first started working with the plaintiff, she was fun. They got along well, and the plaintiff had been quite a bubbly and outgoing person and lovely to work with. After the incident the plaintiff was a different person. She was no longer very chatty. She was much quieter and spent a significant amount of time in the toilet.[85]
[85] ts 286.
Ms Nihill said that she had a similar role to the plaintiff. When Ms Nihill first commenced working, she started with a salary of around $60,000. Over time she progressed to a salary of around $75,000 ‑ $80,000.[86]
[86] ts 287.

The history of the plaintiff's medical treatment

The medical records pertaining to the plaintiff's admission to Bunbury Hospital on the day of the incident, reveal that her tongue and oropharynx were examined, that no abnormality was observed but she had begun to vomit.
After the plaintiff was transferred to Sir Charles Gairdner Hospital she underwent an endoscopy which revealed two minor gastric erosions.[87] Subsequently, a review endoscopy of the plaintiff's upper and lower GI tract was reported as normal.[88]
[87] Exhibit 10, report of Dr Hall dated 17 December 2016.
[88] Exhibit 10, report of Dr Hall dated 17 December 2016.
The plaintiff subsequently attended her general practitioner, Dr Mark Hall for treatment. Some considerable time after her discharge from hospital, Dr Hall noted that the plaintiff continued to experience symptoms associated with stress, anxiety and depression.[89] He referred the plaintiff to psychologist, Pam Richardson for counselling.
[89] Exhibit 10, report of Dr Hall dated 17 December 2016.
On 27 February 2014, the plaintiff was reviewed by Dr Oliver Walters, a gastroenterologist. Dr Walters identified irritable bowel syndrome which he thought was likely a post-traumatic stress response. Dr Hall subsequently reported that Dr Walters had said that he had been unable to discuss other options and treatments with the plaintiff due to her terminating the consultation.[90]
[90] Exhibit 10, report of Dr Hall dated 17 December 2016, plaintiff's book of documents (PBD), page 53.
On 21 July 2014, due to the plaintiff's ongoing symptoms of distress, Dr Hall referred her to Dr Risbey noting, in his referral letter 'her prior history of depression and my previous impressions that she was emotionally fragile'.
The plaintiff first consulted Dr Risbey on 3 October 2014. The plaintiff advised Dr Risbey that she had suffered Bornholm's syndrome (a viral infection of the intercostal nerves) and costochondritis of the upper ribs. The plaintiff reported that, since the incident, she had suffered symptoms of lactose intolerance, irritable bowel syndrome, loss of taste and the blocking of memories of previous specialist attendances. She reported a worsening of her psoriasis, and suffering mouth blisters when she drank orange juice.[91] The back of her throat was itchy. She reported that her stomach was 'in agony most of the time', that she was snappy, had poor concentration and trouble focusing. She had lost her sense of caring for others and her sense of time. She was unsure of her age. She denied having had a solid sleep since the incident and she frequently woke with panic attacks.[92] She no longer drank alcohol because it gave her an 'instant stitch' in the stomach.
[91] Exhibit 12, report of Dr Risbey dated 13 July 2015, PBD, page 43.
[92] Exhibit 12, report of Dr Risbey dated 13 July 2015, PBD, page 44.
By May 2015 Dr Risbey noted that the plaintiff's presenting complaints had persisted although the panic attacks had abated. Dr Risbey's opinion was that the 'ongoing nature of her psychological symptoms raises questions about more complex mechanisms which have arisen in response to the incident'. Dr Risbey thought that the reported physical symptoms might indicate a neurological condition such as neuropathic pain or sympathetic dystrophy. Dr Risbey suggested referral to a pain management specialist.[93] In the meantime, Dr Risbey recommended the plaintiff continue taking Lexapro, resuming the drug Pariet and a small dose of the drug Lyrica.
[93] Exhibit 12, report of Dr Risbey dated 13 July 2015, page 5, PDB, page 46.
Dr Risbey recommended treatment with a clinical psychologist - preferably one experienced in dealing with the links between psychological and physical conditions, including somatisation.[94]
[94] Exhibit 12, report of Dr Risbey dated 13 July 2015, PBD, pages 47 - 48.
In June 2015, the plaintiff consulted pain management specialist, Dr Philip Finch who recommended a trial of topical pain relief and splanchnic nerve block.[95]
[95] Exhibit 11, report of Dr Finch dated 30 June 2015, PBD, page 1.
Dr Finch reviewed the plaintiff in February 2016. She was still reporting oral and abdominal pain. He noted that she received some relief from her oral symptoms from the medication. Dr Finch recommended redesigning the oral rinse and administering a left lumbar sympathetic nerve block.[96] Over the ensuing months the plaintiff received the nerve blocks (later combined with Botox injections). These procedures provided the plaintiff with some relief.[97]
[96] Exhibit 11, report of Dr Finch dated 29 February 2016, PBD, page 3.
[97] Exhibit 11, reports of Dr Finch dated 17 April 2016 and 4 July 2016.
Dr Finch prescribed a variety of medications including antacids, topical anaesthetic agents, protein pump inhibitors, anti-nausea, anxiolytics and antidepressants, which the plaintiff used at various times.
In December 2016, Dr Hall prescribed Lexapro for depression and anxiety.[98]
[98] Exhibit 10, report of Dr Hall dated 19 June 2018, PBD, pages 5 - 6.
On 19 October 2017 Dr Finch conducted a procedure known as 'lumbar sympathetic chain, destruction by neurolytic agent'.
On 15 January 2018 Dr Alan Thomas referred the plaintiff for a CT scan of her abdomen and pelvis to determine the cause of the plaintiff's report of 'persistent left upper quadrant pain'. The scan revealed no significant intra-abdominal or pelvic pathology but quite prominent faecal loading of most of the large bowel.[99]
[99] Exhibit 10, CT scan results, PBD, page 57.
By May 2018, the plaintiff reported to Dr Finch that she was still experiencing intermittent pain present for up to two days at a time and that she found relief from the medication Somac. The drug Oxycontin provided her with no pain relief but helped her to sleep. The plaintiff described an increase in anxiety which Dr Hall thought was associated with meetings with her lawyers.[100]
[100] Report of Dr Hall dated 19 June 2018, PBD, pages 55 - 56.
Dr Hall reported that on 20 July 2020 the plaintiff declined further input from pain specialists but sought recommendations for a psychiatrist.[101] Despite Dr Hall having recommended a number of psychiatrists, the plaintiff did not pursue psychiatric treatment.
[101] Exhibit 10, report of Dr Hall dated 23 July 2020, PBD, page 80.

Medical opinion evidence

There were five doctors called to give evidence at trial. Dr Hall and Dr Risbey were the plaintiff's treating doctors, but they also gave expert opinion evidence.
Dr Ng was the consultant psychiatrist who had been asked to provide an expert report for the plaintiff and gave expert opinion evidence.
Dr Piirto, a consultant psychiatrist and Dr Dayoub, an occupational physician gave evidence for the defendant.
The parties tendered the various medical reports and thus they form part of the evidence.

Dr Hall's evidence

Dr Mark Hall recently retired after 50 years in general practice. He has a medical degree from London University and a diploma of obstetrics.[102]
[102] ts 192.
In his report dated 17 December 2016, Dr Hall noted that the plaintiff was suffering from stress, anxiety and depression. He referred her for psychological counselling. Dr Hall noted the diagnoses proffered by Dr Oliver Walters, gastroenterologist, Dr Risbey, psychiatrist and Dr Finch, pain management specialist. Dr Hall expressed the opinion that the plaintiff had suffered from caustic burning evidenced by two small gastric erosions. Dr Hall confirmed that an endoscopy conducted on 14 October 2013 revealed that the gastric erosions had resolved.[103]
[103] ts 200.
In a further report dated 19 June 2018, Dr Hall noted that, since the plaintiff had become a vegetarian in June 2017, her abdominal symptoms had improved.
In his last report dated 23 July 2020, Dr Hall reported that the plaintiff was not taking any painkillers and had declined further input from pain specialists. He reported that she was managing her symptoms with lifestyle changes.
Dr Hall said he had found the plaintiff at her various attendances to be emotionally very upset.[104] He was of the opinion that the plaintiff's psychological symptoms were greater than the physical symptoms.[105] Dr Hall confirmed that he had referred the plaintiff to Dr Risbey in October 2014 because of her ongoing emotional distress.[106]
[104] ts 194.
[105] ts 195.
[106] ts 193.
In his report of 5 February 2019 Dr Hall said the plaintiff 'reported being frequently in agony' but she did not exhibit any appearance of being in pain.[107]
[107] ts 197.
In his evidence, Dr Hall said that he agreed with the opinion expressed in his report of 5 February 2019 that the plaintiff was unemployable and would remain so until her physical and psychological symptoms resolve.[108]
[108] ts 197.
Dr Hall's evidence was that the plaintiff had not complained to him of any restriction or difficulty in working until she attended him on 24 May 2018.[109] Dr Hall said he had not discussed her employment apart from the occasions he issued her with sickness certificates (at which time he assumed she was employed).[110] Dr Hall agreed that he had not enquired of her as to whether there was an issue with her employment duties.[111]
[109] Exhibit 10, report of Dr Hall dated 4 July 2018, PBD, page 76; ts 206.
[110] The certificates were for 28 May 2013, 9 January 2014, 21 July 2014.
[111] ts 206.

Dr Hall agreed with what he recorded in his report dated 4 July 2018 namely that in May 2018 the plaintiff had presented as being fit to undertake her reported occupational duties as a business administrator. He could not recall having had a discussion with her about whether she was fit for work.[112]

Findings on Dr Hall's evidence

[112] ts 206.

The defendant submits that Dr Hall's opinion that the plaintiff is unfit for work cannot be accepted because, as her primary treating doctor, much of what is contained in his reports and repeated in his evidence was merely a record of what the plaintiff had told him. The defendant submits that Dr Hall's observations and the objective facts did not always accord with what the plaintiff told him. For example, in his report dated 23 July 2020, he observed that at her appointment on 10 March 2000, the plaintiff did not exhibit any appearance of physical pain even though she complained of being in a lot of pain.[113]
[113] ts 196 - ts 197.
Dr Hall had also reported that the plaintiff had told him that her 'pain relief cocktail' made her unable to work and dangerous in the workplace. (I note that this was not the reason the plaintiff herself had given for accepting the redundancy in 2015.)[114]
[114] Exhibit 10; ts 131.
Dr Hall's report and his evidence reveal that he had certified the plaintiff as fit for her occupational duties as a 'business administrator' on 24 May 2018, 30 May 2018 and 5 June 2018. Dr Hall's evidence was that she had not complained of any restriction or difficulty in working since attending him on 24 May 2018 (some three years after she accepted the redundancy).[115]
[115] ts 206.
Dr Hall does not have the specialist qualifications in occupational medicine or psychiatry to express an opinion about the plaintiff's capacity for work. Moreover, Dr Hall had not recently examined the plaintiff and so would not be in a position to express an opinion on her present capacity for work. Dr Hall's evidence largely consisted of reporting of the plaintiff's account of her symptoms. For the foregoing reasons I would not rely on any opinion expressed by Dr Hall concerning the plaintiff's loss of earning capacity. Nevertheless, his evidence corroborates the plaintiff's narrative of the effect of the incident on her over time, and is thus helpful.

Dr Risbey's evidence

Dr Lance Risbey was the plaintiff's treating psychiatrist. The plaintiff attended on him for the first time on 3 October 2014 and on two subsequent occasions for treatment. Dr Risbey noted her lack of sympathy for others, her poor sleep, disconnection from community and her 'old self'. He noted that she expressed rage and vengeful feelings towards the defendant.
In his report to Dr Hall dated 25 May 2015, Dr Risbey said he provisionally diagnosed probable post-traumatic stress disorder, post‑traumatic embitterment syndrome, probable neuropathic up‑regulation, other physical effects and probable 'decompensation of effects from an unknown prior trauma'.
In his report to the plaintiff's solicitors dated 13 July 2015, Dr Risbey stated his provisional diagnoses as PTSD, post-traumatic embitterment syndrome and possible neural upregulation of nerve pathways and irritable bowel syndrome. Dr Risbey advised referral to a pain management specialist and recommended treatment with a psychologist experienced in dealing with the links between psychological and physical conditions. Dr Risbey suggested psychological treatment would be needed once a week for several months and then fortnightly depending on progress. He thought that psychotherapy would lead to a good prognosis in the long-term.[116]
[116] ts 223 - ts 224.
Dr Risbey expressed the opinion that the ongoing nature of the plaintiff's psychological symptoms raised questions about 'more complex mechanisms' which have arisen in response to the incident.[117] Dr Risbey considered that the plaintiff's reaction was partly due to the direct effect of the caustic substance in her mouth, throat and stomach and part of which was the symptoms of anxiety associated with the event. Dr Risbey noted that the plaintiff felt emotionally damaged by the refusal of the owner of the Chicken Treat outlet to admit responsibility for the contamination of the chips and towards whom she felt a sense of betrayal and subsequent embitterment.
[117] Exhibit 12, report of Dr Risbey dated 13 July 2015, PBD, page 45.
Dr Risbey recommended that the plaintiff continue to take the medication Lexapro which he thought would be effective in reducing her feelings of panic and anxiety. Dr Risbey considered that the burning sensation in her mouth and other pain may have been neuropathic pain. He prescribed Lyrica being an anticonvulsant medication more commonly used for neuropathic pain.
Dr Risbey noted that the plaintiff was tearful and had a fear focussing on traumatic memories; she was angry at the owner of the store and was distressed when recounting the events. He recommended treatment by a clinical psychologist experienced in dealing with the links between psychological and physical conditions including somatisation and neuropathic pain. He considered that treatment with a psychologist would need to be on a regular basis for some time. Although Dr Risbey considered the plaintiff's short‑term prognosis was poor, he considered that a committed approach to psychotherapy would lead to a good prognosis in the long‑term. Dr Risbey noted that psychotherapy would need to be carefully conducted by an experienced psychotherapist and clinical psychologist.[118]
[118] Exhibit 12, report of Dr Risbey dated 13 July 2015, PBD, page 48.
In his oral evidence, Dr Risbey confirmed the observations he made in his earlier reports. He said that the plaintiff had suffered somatisation (that is the sensation of bodily pain where there is no apparent physical cause) and this was a very common trauma response. Dr Risbey compared the plaintiff's condition to 'phantom limb syndrome' to explain how the plaintiff could still feel pain even though the physical cause of that pain no longer existed. Dr Risbey's opinion was that neuropathic pain overlaps with psychological problems.[119]
[119] ts 214 - ts 215.
Dr Risbey was asked in cross-examination about the relevance of the plaintiff's anger towards the owner of the Chicken Treat store. Dr Risbey's evidence was to the effect that this could have been a defence mechanism to avoid focusing on the experience of her having been terrified. Dr Risbey did not consider that the plaintiff's anger was consciously motivated by a desire to make [the defendant] pay. Dr Risbey explained that trauma sufferers can have intense feelings caused by 'retraumatisation' (where the sufferer's experience is not validated by being believed or receiving an apology). Dr Risbey thought that the plaintiff had post‑traumatic embitterment syndrome - a manifestation of retraumatisation.[120]
[120] ts 216.
In cross‑examination Dr Risbey denied that the post‑traumatic embitterment syndrome necessarily related to the plaintiff's desire for compensation; he thought her anger may not have been 'consciously chosen'.[121]
[121] ts 232.
When Dr Risbey was asked in cross-examination whether the plaintiff was suffering from a somatic symptom disorder rather than a neuropathic (pain) disorder, he was unable to say (which was why he wanted her referred to a pain specialist).[122]
[122] ts 232.
Dr Risbey declined to express an opinion about whether the plaintiff was fit for work and said he would prefer to defer to other experts on that issue.[123]

Findings on Dr Risbey's evidence

[123] ts 230.

The evidence of Dr Risbey was not subject to serious challenge by the defendant, and I accept his evidence.
The evidence of Dr Risbey establishes that, at the time the plaintiff was in her previous employment, she was suffering very significant psychiatric problems which had not abated to any meaningful degree by the time he ceased treating the plaintiff in 2015.

Dr Finch's evidence

Dr Philip Finch is a pain specialist who treated the plaintiff after the incident and last reviewed her in June 2022.
In his report dated 30 June 2015, Dr Finch confirmed that the results of the plaintiff's endoscopy five months after the incident were normal, although she reported having altered sensation in the mouth and blistering (exacerbated by the ingestion of certain types of foods).
Dr Finch conducted a physical examination of the plaintiff on 30 June 2015. He noted no abdominal tenderness or altered sensation in the mouth or over the abdomen but noted mild tenderness over the oesophageal region.
Dr Finch concluded that the plaintiff's symptoms were 'neuropathic in origin'. He prescribed pain relief medication Gabapentin and Ketamine.
In his report dated 29 February 2016, Dr Finch noted the plaintiff's complaints of blistering of the mouth and adverse reactions to eating certain foods. Dr Finch was unable to understand the mechanism of the plaintiff's abdominal pain but recommended a trial of lumbar sympathetic blocks. In April and June 2016, Dr Finch injected Botox in the plaintiff's spine which provided her with some relief.
In his report to the plaintiff's solicitors dated 8 May 2017, Dr Finch said he had found no cause for the plaintiff's symptoms. Dr Finch did not consider that the plaintiff's symptoms were psychologically based, although there were 'psychological overtones' due to her chronic pain state. Dr Finch considered that the plaintiff was suffering from a neuropathic pain state which he assumed had been caused when the intraoral and abdominal neural structures had been injured and had thereby caused a long-term pain state.
Dr Finch recommended that the plaintiff continue to take pain relief, receive Botox injections and use antidepressants.
In his report dated 18 February 2019 to the plaintiff's solicitors, Dr Finch again proffered the explanation of neural damage due to the ingestion of caustic soda.
Dr Finch reviewed the plaintiff in June 2022 and observed that there had been little change since his last review on 30 January 2019. The plaintiff reported to Dr Finch that she continued to experience pain in a similar distribution to when he first saw her in 2015, namely pain in the perioral area of her mouth and abdominal pain in the left upper quadrant of her abdomen, spreading across the abdomen. She reported experiencing ulceration from ingesting certain foods and that her symptoms were exacerbated by certain foods, various stressors and exercises.[124]
[124] Exhibit 19, report of Dr Finch dated 9 June 2022, PBD, page 27.
Dr Finch examined the plaintiff and noted that her mouth, gums, lips and tongue appeared normal. However, the plaintiff reported paraesthesia in her tongue when he stimulated the tongue with a tongue depressor. She reported a similar reaction around her lips. He found the plaintiff to be mildly tender in the left upper quadrant of her abdomen and noted hyperaesthesia to local skin stimulation.[125]
[125] Exhibit 19, report of Dr Finch dated 9 June 2022, PBD, page 28.
Dr Finch's opinion was that the most likely explanation for the plaintiff's symptoms was 'neuropathic pain syndrome' which occurred when a nerve or nerve pathway is injured in some way and results in pain in the nerve pathways or in the brain.[126]
[126] ts 256.
Dr Finch expressed the opinion that the plaintiff was unfit to work until retirement age.[127]
[127] Exhibit 19, report of Dr. Finch dated 9 June 2022, PBD, page 28.
Under cross-examination Dr Finch agreed that he was not certain of a pathological cause for the plaintiff's pain,[128] but agreed that neuropathic pain can be exacerbated by psychological symptoms.[129]

Findings on Dr Finch's evidence

[128] ts 265.

[129] ts 266.

I accept Dr Finch's evidence and opinion on the likely cause of the plaintiff's pain. Dr Finch's evidence corroborates the plaintiff's account of her symptoms. However, Dr Finch's evidence was not helpful in resolving whether the plaintiff's symptoms had improved since he last saw her. In his final report on 9 June 2022, Dr Finch noted that he had last reviewed the plaintiff on 30 January 2019 and thought that little had changed. However, since that date, the unchallenged evidence is that the plaintiff had given birth to her two daughters and had reported not using pain relief for her symptoms since.

Dr Ng's evidence

Dr Frederick Ng is a consultant psychiatrist who assessed the plaintiff on 21 December 2020 and 1 June 2022. Dr Ng was provided with reports from Dr Hall, Dr Risbey, Dr Finch and Dr Dayoub.
On 21 December 2020 Dr Ng took a history from the plaintiff and conducted a mental status examination. Dr Ng noted that the plaintiff presented in clear consciousness with no evidence of agitation, aggression, or disinhibition. Her psychomotor tempo was normal. She was generally tense and anxious during the interview, particularly when asked to recount the incident and when the word 'caustic soda' was mentioned.
Dr Ng noted the plaintiff's speech to be normal, her affect intermittently depressed to a mild extent and within normal range. He did not notice evidence of bizarre or dramatic behaviour.
The plaintiff told Dr Ng that she had developed mouth ulcers and blisters requiring topical pain relief and that she had experienced pain and physical discomfort to varying degrees exacerbated by the ingestion of certain foods.
Dr Ng said that the plaintiff described avoidance of cleaning products, anxiety at the mention of caustic soda and experiencing nausea. She described feeling worried about being damaged by food when eating out. She reported avoiding food prepared by others.
Dr Ng's opinion as to her psychiatric state was consistent with the conclusions of Dr Risbey - namely, that the plaintiff had developed PTSD which was currently partially treated but was persistent and remained problematic.[130]
[130] Exhibit 14, report of Dr Ng dated 21 December 2020, PBD, page 90.
Dr Ng agreed with Dr Risbey that the most appropriate diagnosis was one of PTSD.[131] Dr Ng considered that the most significant contributing factor in the onset of the PTSD was the physical and emotional trauma from the incident. He considered that the plaintiff was likely to suffer psychiatric problems for the foreseeable future.
[131] Exhibit 14, ts 237.
Dr Ng thought that the plaintiff would benefit from psychotherapy but that:[132]
A major barrier to psychotherapy would be that it will provoke increased levels of anxiety which will lead to psychological avoidance which will complicate the manifestation of her current psychiatric difficulties.
[132] Exhibit 14, report of Dr Ng dated 21 December 2020, PBD, page 91.
At the time of writing his report in December 2020, Dr Ng was of the opinion that, from a psychiatric perspective, the plaintiff was 'totally unfit to attend any pre-incident work and totally unfit to attend any alternative work she may be suited [to] by virtue of prior training, experience or qualifications'.[133]
[133] Exhibit 14, ts 237.
In his evidence, Dr Ng said he based his opinion on several factors including [his belief] that the plaintiff had not worked since late 2013, the manifestation of her symptoms, and the nature of the symptoms.[134]
[134] ts 239.
Dr Ng thought that it was 'premature' to suggest the plaintiff would be able to return to work and thought this was unlikely to occur unless she had 'some significant psychiatric improvement'.[135] Given the persistence of her psychiatric difficulties, Dr Ng was of the opinion that the plaintiff's prognosis was guarded ie: that the chances of her condition going into total remission, let alone improving, was poor.[136]
[135] ts 239.
[136] ts 243 - ts 244.
Dr Ng's opinion is that the most significant contributing factors in materially precipitating the onset of PTSD were the physical and emotional traumas as a consequence of the incident.[137]
[137] Exhibit 14, report of Dr Ng dated 21 December 2020, PBD, page 91.
Dr Ng considered that the plaintiff would suffer ongoing psychiatric symptoms arising from the PTSD into the foreseeable future. He recommended trauma-specific psychotherapy at least once every three to five weeks over the next one to three years. Dr Ng noted, that the plaintiff was likely to be resistant to psychotherapy, as she would fear that it would provoke increased levels of anxiety leading to psychological avoidance, which would complicate the manifestation of psychiatric difficulties.[138]
[138] Exhibit 14, report of Dr Ng dated 21 December 2020, PBD, page 91.
Dr Ng considered that the plaintiff's capacity to enjoy life, engage in social events and recreational activities, to be moderately severely impacted and her capacity to engage in her marital relationship was at least moderately impaired.[139]
[139] Exhibit 14, report of Dr Ng dated 21 December 2020, PBD, page 93.
Dr Ng again reviewed the plaintiff on 1 June 2022 and, having reviewed the report of Dr Piirto dated 18 June 2021 and the report of Dr Dayoub dated 28 August 2020, provided a further opinion. In his opinion the plaintiff was continuing to experience ongoing residual anxiety symptoms to a varying extent in a generalised manner, and significant anxiety with respect of what she will eat, where she will eat and who prepares her food. Dr Ng noted this restricted her going out to eat in restaurants and that she would not eat anything prepared by other people. Dr Ng said the plaintiff had a very specific anxiety, namely the fear of being injured again.
Dr Ng reassessed the plaintiff on 1 June 2022 and provided a further report the same day. He noted the plaintiff appeared in clear consciousness with no evidence of agitation, aggression or disinhibition. He again expressed the opinion that she was unfit for any kind of work.[140]
[140] Exhibit 15, report of Dr Ng dated 1 June 2022, PBD, page 98.
Dr Ng did not disagree with the opinion of Dr Piirto that the plaintiff was suffering from an 'unspecified anxiety disorder' but stood by his diagnosis of PTSD (made when he initially assessed her in December 2020). Dr Ng said that, by the time of the second consultation (in June 2022) the PTSD had become more residual but had been replaced by generalised anxiety symptoms. Dr Ng considered that any residual anxiety arose from the previously diagnosed PTSD.[141]
[141] ts 241.
Dr Ng disagreed with the opinion expressed by Dr Piirto that the plaintiff's 'particular innate cognitive schema' had directly contributed to the emergence of her complex physical and psychiatric profile.
In his evidence Dr Ng explained the difficulty for the plaintiff in pursuing psychotherapy:[142]
A major barrier in this particular case is the phobic avoidance, the anxiety that she developed as a consequence of the incident whereupon speaking about it caused her to be very anxious. It is indeed a major barrier. However, efforts need to be made for her to have some treatment with psychotherapy because empirical evidence from the research indicates the best outcomes for treatment comes from both psychotherapy and medication. If you don't have psychotherapy, the talking therapy is not going to help. But it is noted that there is going to be a resistance to it because of the inherent symptoms of the condition itself.
[142] ts 238.
Dr Ng confirmed the opinion expressed in his written report that the plaintiff was totally unfit to attend any pre-incident alternative work to which she may have been suited to by virtue of prior training, experience or qualifications.[143]
[143] ts 238.
In his evidence Dr Ng said it was premature to suggest that the plaintiff could never return to work because there may be some psychiatric improvement and therefore her capacity to attend work.[144]
[144] ts 239.
Dr Ng was asked to explain his difference of opinion from Dr Piirto (who had diagnosed the plaintiff with an unspecified anxiety disorder). Dr Ng said there could have been some change in symptoms between the time of his diagnosis on 21 December 2020 and the time she was assessed by Dr Piirto a year later.

Conclusion

There will be judgment for the plaintiff. Any sums already advanced, if any, are to be deducted from that amount.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
24 FEBRUARY 2023