Scattergood v Commonwealth - [2022] TASSC 21

[2022] TASSC 21

COURT: SUPREME COURT OF TASMANIA

CITATION: Scattergood v Commonwealth [2022] TASSC 21

PARTIES:  SCATTERGOOD, Sarah Jane
  v
  COMMONWEALTH OF AUSTRALIA

FILE NO:  466/2019
DELIVERED ON:  13 April 2022
DELIVERED AT:  Hobart
HEARING DATES:  19, 20, 22 October, 9 November 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Damages – Particular awards of general damages – Tasmania – Whiplash injury and adjustment disorder with depressed mood – Public servant aged 46 at accident, 50 at trial – Award of $100,000 general damages for pain and suffering and loss of amenities.

Aust Dig Damages [1173]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC, A Gaggin
             Defendant:  T D Cox
Solicitors:
             Plaintiff:  Murdoch Clarke
             Defendant:  HWL Ebsworth Lawyers

Judgment Number: [2022] TASSC 21
Number of paragraphs: 176

Serial No 21/2022
File No 466/2019

SARAH JANE SCATTERGOOD v COMMONWEALTH OF AUSTRALIA

REASONS FOR JUDGMENT BLOW CJ

13 April 2022

This is an assessment of damages for personal injuries. The plaintiff, Sarah Scattergood, was injured in a motor vehicle accident on 28 February 2018. On that day she was a passenger in the front seat of a vehicle that was being driven by her husband when he had to stop suddenly and a following vehicle collided with the rear of his vehicle. The driver of the other vehicle, Major Graham Wren, was an employee of the Commonwealth of Australia. Judgment has been entered for the plaintiff against the Commonwealth for damages to be assessed.
It is common ground that the plaintiff should recover general damages for her pain and suffering and loss of amenities, as well as damages for the past impairment of her earning capacity, future loss of earnings, loss of superannuation benefits, and various forms of future expenditure. However there are many matters of dispute relating to the quantum of the plaintiff's damages. The defendant contends that her complaints of medical symptoms are exaggerated, that her symptoms were substantially contributed to by a second incident, that she had pre-existing medical conditions that would have deteriorated in any event if she had not been injured, and that she failed to take various steps to mitigate her damage. The defendant relies on ss 34 and 35 of the Civil Liability Act 2002 and contends that it did not owe her a duty to prevent mental harm, and that her mental harm does not amount to a recognised psychiatric illness and therefore must be ignored in assessing damages for economic loss.
At the trial the plaintiff called five expert witnesses – a consultant physician (Dr Gorman), an orthopaedic surgeon (Mr Doig), the plaintiff's general practitioner (Dr Macrossan), a psychiatrist (Dr Evenhuis), and an occupational therapist (Ms Richards). The defendant did not call any expert witnesses. The only lay witnesses were the plaintiff, her husband, Major Wren, and a private investigator engaged by the Commonwealth, Mr Smith.

Background

The plaintiff was born in 1971. She was 46 years old at the time of the accident and is now 50 years old. She and her husband have three dependent children. They were born in 2004, 2006 and 2009.
The plaintiff completed her secondary education in 1988 and commenced a Bachelor of Teaching course, but did not complete it. After leaving university she worked in various positions in the ski fields of Victoria and New South Wales. She has lived in Tasmania since 1992. Between her arrival in Tasmania and the birth of her first child in 2004 she worked in the hospitality industry. From about 1993 to 2000 she worked for the Tasmania University Union, first running a kiosk, and later working as its functions co-ordinator and food and beverage supervisor. From 1993 to 1996 she worked as a function and catering co-ordinator for the Tasmania Cricket Association. From 2000 to 2004 she worked at the Hotel Grand Chancellor in Hobart as its catering and conference co-ordinator.
She went on maternity leave in about April 2004, and did not return to employment until late 2007. From then until May 2009 she worked at the Henry Jones Art Hotel in Hobart as its catering and conference co-ordinator. She took maternity leave in May 2009 and did not return to employment until March 2014. At that time she obtained a position as a customer service consultant with the Royal Automobile Club of Tasmania ("RACT") in Hobart. She started that job on a part-time basis but became a full-time employee shortly after that. She worked there until October 2016. She was presented with an award for retail distribution sales achievement. After returning to the workforce in 2014 she continued to be the primary carer for her three children, as well as undertaking housework at her home.
In October 2016 she left the RACT and obtained employment in the Tasmanian State Service in the call centre of Service Tasmania. Service Tasmania is part of the Department of Premier and Cabinet ("DPAC"). She was employed in a low paid entry level position. She took it because there were prospects of promotion within the State Service to levels that she considered commensurate with her abilities. There had been no opportunity for promotion with the RACT. She applied for a number of State Service positions at higher levels in late 2017 and early 2018, without success. Prior to her accident she applied for a position as a Band 6 communications consultant, and was invited to attend an interview. An appointment was made. The interview had not taken place at the time of her accident.
In the time leading up to the accident she enjoyed playing tennis, socialising with friends, and involving herself in her children's activities and family activities, as well as physical activities including roller blading, kayaking, bushwalking, and taking the family's dogs to the beach. She was very overweight, but was making an effort to improve her fitness and lose weight. She was a heavy drinker, but did not let her drinking interfere with her work, her family or her various interests. She had suffered from a number of medical conditions, including left hip bursitis, sacroiliac joint dysfunction, low back pain, sinusitis, high blood pressure and menopausal issues.
The plaintiff gave evidence about her pre-existing problems affecting her low back and left hip. Her evidence-in-chief as to that subject can be summarised as follows. She had a problem with her left hip in 2015. She had a steroid injection at that time. That did not fix her hip. It seemed to bring on problems in her lower back. She saw her general practitioner and had some physiotherapy. She had pain in her left hip. She sometimes had difficulty walking. She experienced pain in the lower back as well. The symptoms were spasmodic. The problem settled down significantly after the injection but did not completely resolve. The problem did not stop her working. She was initially provided with "a sit-stand desk" and continued to work full-time despite the back problems. The pain would easily be resolved by sitting down. There were flare-ups at least weekly, probably two to three times a week. She gave up playing tennis for a while after the injection in 2015, resuming in about 2017. She was playing tennis about twice per week until the accident in 2018.
The plaintiff was cross-examined about a note in her physiotherapist's records dated 3 November 2017. She accepted that she had not played tennis for 2½ years at that time, and that she was experiencing "screaming pain" in her back, worse than the pain after the February accident.
Dr Gorman acknowledged the pre-existing complaints of low back and left hip pain in his reports. At the trial he was cross-examined about opinions expressed by a rehabilitation physician whom counsel for the defendant ultimately did not call. He accepted that the plaintiff had pre-existing cervical spondylosis, but said that her age-related changes were no different than those of any other 49 year old.
Mr Doig also noted the history of pre-existing low back and hip pain in his report. He was questioned about radiological evidence of degenerative changes in the plaintiff's cervical spine. He gave evidence to the effect that such changes can be seen in many people of the plaintiff's age, that they are not necessarily symptomatic, and that the radiological evidence did not particularly impact on his opinion.

The accident on 28 February 2018

On Wednesday 28 February 2018 the plaintiff and her husband were travelling home from work in Hobart on the Brooker Highway. They lived at Austins Ferry. Near the intersection with Derwent Park Road, the vehicles in front of them stopped suddenly. The plaintiff's husband braked and stopped the vehicle. It was hit from behind by a utility driven by Major Wren. The plaintiff was wearing her seatbelt. As a result of the impact she was thrown forward and then backwards. She hit her head on her headrest.
Major Wren estimated his speed at the moment of impact to have been 10 to 20 kilometres per hour. He said that the impact on him was fairly minimal.

The aftermath of the accident

After returning home the plaintiff began experiencing neck pain. She went to the emergency department at Calvary Hospital where she was diagnosed as having a muscular ligamentous injury to the cervical spine.
In the weeks following the accident she took painkillers and used hot packs and cold packs for pain relief. She took the rest of the week off work, and returned to work on Monday, 5 March 2018. She was keen to get back to work, but found it difficult to concentrate. On the Tuesday she was experiencing so much pain that she went home at about lunchtime. On the Wednesday she saw her general practitioner, Dr Macrossan. It was the first of many consultations with him in relation to her neck pain. She commenced physiotherapy treatment on 16 March. She returned to work on 19 March, but had trouble with neck pain and headaches, and difficulty concentrating. The next day Dr Macrossan certified her as fit for normal duties for six hours per week. By early May Dr Macrossan and the physiotherapist were suggesting a gradual increase in her working hours. On 7 May Dr Macrossan certified her as fit to work for four hours per day, three days per week. She had completed two of the four hour shifts, with some difficulty, before the second incident, which occurred on 13 May 2018.

The incident on 13 May 2018

On Sunday 13 May 2018 the plaintiff was a front seat passenger in a vehicle driven by her husband when he had to brake suddenly at an intersection to avoid a collision with a vehicle on his right. There was no collision. The plaintiff had been looking at her phone before her husband applied the brakes. She estimated his speed before he braked at about 5-10 kilometres per hour. He estimated his speed at less than 5 kilometres per hour. When asked what the sudden braking did to her body, if anything, the plaintiff replied, "Tensed me completely." She said that she felt worse on the following day. She described the worsening of particular symptoms, including the pain in her neck, headaches, pain between her shoulder blades, and pain in her lower back.
Counsel for the defendant submitted to me that the plaintiff's claim that her symptoms dramatically increased as a result of this incident warrants careful scrutiny.
The plaintiff saw Dr Macrossan on 16 May 2018, three days after the braking incident. He provided her with a certificate saying that she was wholly disabled for work. She has not returned to work since then. However her employment has not been terminated. She has been on leave without pay since 14 June 2018.

The aftermath of the May 2018 incident

By June 2018 the plaintiff was taking various pain killers, including Panadeine Forte and Nurofen. She was using heat packs and Voltaren gel. She was continuing to receive treatment from a physiotherapist. She gave evidence that she was not able to sit for any length of time in comfort, could not stand, could not find any level of comfort in any position, and was no longer able to do various types of housework. She said she had very broken sleep, if any. She started seeing an osteopath in June or July 2018, and saw her once per week for a couple of months.
Later in 2018 the plaintiff saw a neurosurgeon, Dr Nova Thani. He referred her to a rheumatologist, Dr Hilton Francis. In a report dated 16 August 2018 Dr Francis noted indications of an abnormal central pain response. He referred her to a psychologist, Ms Kerry Merse.
The plaintiff had hydrotherapy treatment during 2018 and 2019. She saw a pain specialist, Dr Chris Orlikowski. He treated her with cervical spinal injections, but they were not of very much help.
In late 2020 she was referred to another specialist, Dr Ankit Garg, in relation to problems with her left temporomandibular joint. He gave her bilateral steroid injections and injected Botox into the joint. That relieved the symptoms, but they had started to return at the time of the trial in October 2021. None of the expert witnesses in this case opined that the plaintiff's temporomandibular joint problems resulted from the February 2018 accident. None suggested any mechanism by which they could have resulted from that accident. I am therefore not satisfied that they resulted from that accident, and will ignore them when assessing general damages for pain and suffering and loss of amenities.
The plaintiff gave evidence that, at the time of trial, her symptoms included pain in her neck, headaches, pain between her shoulder blades, pain in her lower back, difficulty turning to the left, less difficulty turning to the right, difficulty in bending and twisting, sleep problems, a shortage of energy, problems with prolonged sitting, problems with prolonged standing, depression at times, increasing jaw and inner ear pain, and problems with concentration. She said she was seeing a general practitioner at least monthly.
She considered that there were a number of impediments to returning to work. She said her pain did not allow her to concentrate, that her pain killers did not allow her to work, and that she had good days and bad. She said that she would not be able to return to her old job at the call centre because the angle at which she had to hold her hands for the keyboard and the turning of her head from screen to screen would aggravate her symptoms.
She said that she had tried to do some painting and sewing in order to remain productive. She had managed to make some soft toy ducks once with a view to opening a stall at a market, but had not managed to open the stall, and had made only $105 from selling the soft toys. She had tried to work as a "home consultant" for a business called Body Shop in order to help out an old friend. She received payments totalling $215.60 from that enterprise in respect of work done from September 2020 to March 2021.

The significance of the May 2018 incident

Mr Doig, the neurosurgeon, was engaged by the plaintiff's solicitors as an expert witness. He saw the plaintiff in December 2018. He diagnosed a soft tissue injury to the cervical spine and "a probable exacerbation of a pre-existing symptomatic lumbar spondylosis". In a report dated 8 January 2019 he said the following:
"As far as the thoracic spine is concerned that seems to have settled down and she had a full range of rotation and therefore there is no appreciable problem with the thoracic spine. As far as the lumbar spine is concerned she had a pre-existing problem with the lumbar spine which was still somewhat symptomatic. She has a full range of movement now and I consider it is probable that this was exacerbated by this accident to a certain extent."
Mr Doig saw the plaintiff again in September 2020. In a report dated 2 September 2020 he noted a comment by the plaintiff about the May 2018 incident, as follows:
"… she felt that the second incident in May 2018 did not really throw her around a lot and that second incident aggravated her to a certain extent, but not markedly."
As to causation, he said the following in that report:
"She has a soft tissue injury to the cervical spine. In my previous report I said there was no imaging with her so I could not tell if there was a disc problem. It would appear from the treatment she has had so far that this is more likely a facet joint problem because she has had the local anaesthetic and steroid blocks … as far as the lumbar spine is concerned it is clear that she had a significant pre-existing problem with the lumbar spine. When I saw her last time she had a full range of movement. She is now a little restricted particularly in extension and lateral flexion, but these are lumbar spine areas and not thoracic spine."
He went on to say that her then current orthopaedic conditions were an unresolved soft tissue injury to the cervical spine and an unresolved soft tissue injury to the lumbar spine.
At the trial Dr Doig was asked whether the plaintiff's ongoing problems were due to the February 2018 accident or the May 2018 incident. He replied as follows:
"It's a combination of both, but I felt that it was the February accident in 2018 which had caused the bulk of her symptoms and I felt also that the February 2018 accident was the one that made her neck much more vulnerable. To be perfectly honest I wouldn't expect my neck to be significantly impacted by a relatively low speed sudden braking, from there, unless I had a significant problem with my neck before that. So I would expect, you know, lots of cars brake suddenly from 10 kilometres an hour and if I accept exactly as you've said that that was the circumstance, I wouldn't expect the second accident to have caused significant ongoing problems. But from the way the patient presents she did have significant ongoing problems but I felt very much that it was her – the first accident that caused that and the second accident aggravated it."
Dr Gorman, the consultant physician, is also a pain management specialist. He saw the plaintiff on 25 June 2019. In a report of 28 June 2019 he noted that the May 2018 incident had exacerbated the plaintiff's symptoms, and that it had aggravated her lumbar and cervical pain. He concluded that she had had "a flexion/extension injury of the cervical spine and a flexion/extension injury of the lumbar spine aggravating pre-existing lumbar spinal and left sacroiliac pain". He also noted a flexion/extension injury of the thoracic spine with interscapular pain.
Dr Gorman reviewed the plaintiff in March 2021. In a report dated 17 March 2021 he described the May 2018 incident as a "minor incident", but said that it exacerbated the plaintiff's symptoms. He noted that she described the incident as "the straw that broke the camel's back".
He also said the following:
"The accident in February 2018 was by far the most significant. She was gradually returning to work but was significantly symptomatic in May 2018. She had returned to three days per week two hours per day. The May 2018 incident was very minor but was enough to set her back and she has not worked since then."
He also said the following about the February 2018 accident:
"Her condition has been substantially caused by that accident. That was a significant accident. The May 2018 episode merely exacerbated her condition."
Dr Gorman was asked about the May 2018 incident at the trial. He said this:
"… it was certainly an exacerbation, but, because she was to stop work soon afterwards. But I guess I don't think that episode would have caused a whiplash type injury. You know, there was no collision, it was more a – the opposite to a rear end, so I don't think that would have caused a whiplash injury. It exacerbated her symptoms but was by no means the cause of her ongoing problems."
Dr Gorman was asked about the mechanism by which the May 2018 episode exacerbated the plaintiff's condition. He responded as follows:
"Well I think the – it could be both a physical and or psychological effect I think. She speaks of, you know, muscular tension which, you know, if you've been through an accident, already had anxiety about driving in a car, then to have something like that happen would cause widespread muscular tension and also a pretty rapid escalation in that level of anxiety. So there's that factor plus the fact that once again her neck would've been flexed and extended to some extent but if I had to say what would be the major effect I would say that it's the psychological effect on an already anxious and vulnerable person. And, you know, that then led to the escalation and the perpetuation of the symptoms."

Dr Macrossan gave evidence to the effect that, in his opinion, the February 2018 accident predisposed the plaintiff to suffering further exacerbations, and that the May 2018 incident exacerbated her symptoms when, but for the February accident, it would have been inconsequential. The plaintiff has been seeing him since 2009.
Counsel for the plaintiff referred me to the following passage in the judgment of Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Tort Reports ¶81-003 at 67,577:
"In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1)   where the further injury results from a subsequent accident, which would not have not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;
(2)   where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3)   where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first."
Those principles have been adopted and applied by the New South Wales Court of Appeal in a series of cases: Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 at [29]-[30]; Falco v Aiyaz [2015] NSWCA 202, 71 MVR 454 at [94]; Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [130].
On the facts of this case, the second proposition stated by Malcolm CJ in Oakley is applicable. The May 2018 incident resulted in the plaintiff suffering an aggravation of her earlier injury. The additional damage resulting from that aggravation must therefore be treated as having been caused by the negligence of Major Wren.

Consequences of the February 2018 accident

Dr Gorman's evidence

When Dr Gorman assessed the plaintiff in June 2019 he noted the following as to her reported symptoms:
"Ms Scattergood continues to have pain in the centre of the neck radiating particularly to the left side of the neck. Turning to the right is not so difficult but to the left is difficult. She has trouble checking the 'blind spot'.
She gets worse if she is required to drive for more than 15 to 20 minutes. Thirty minutes is her maximum driving.
She is also having interscapular pain.
The pain from between the scapulae can radiate up to the base of the neck."
The private investigator, Mr Smith, was called by the defendant to give evidence contradicting what the plaintiff said about how long she was able to drive. I will deal with his evidence later.
At the time of the June 2019 assessment, Dr Gorman also noted the following:
"Ms Scattergood is much less active now. Her husband does all the housework including vacuuming and cleaning.
She does some cooking but when standing chopping vegetables she needs to flex her left hip by putting it on a foot stool. She only occasionally irons shirts.
Some days she can go shopping but on other days her back pain limits her.
Present Treatment
Ms Scattergood continues on tramadol 100 mg twice daily. She takes an extra 50 mg on bad days.
She regularly takes Panadol Osteo as well as Nurofen.
She uses Voltaren Osteo gel.
She wears flat shoes and uses heat packs.
She sees an osteopath regularly and tries to swim and walk as much as possible."
At that time Dr Gorman considered that the plaintiff's main restrictions related to her difficulties in sitting for long periods and standing for long periods. He said, "I believe that she hopefully will be able to attempt return at least to part-time employment over the next two to three months." He considered that her injuries were having a severe impact on her ability to engage in normal social, recreational and domestic activities. He considered her medications to be appropriate. He suggested a more intensive cognitive behavioural pain program to overcome any "fear avoidance" and to increase her activity in a paced manner.
When Dr Gorman reviewed the plaintiff in March 2021 he noted the following:
"Ms Scattergood continues to have constant headaches which can be severe.
She still has neck pain particularly on the left side and in the left occipital region.
She feels the cervical spine click and crunch.
If she looks quickly to the left the cervical spine 'catches'. It is difficult when she is driving looking for the blind spot.
She finds it difficult to sit for long periods because of low back pain. This is helped somewhat by the analgesics which did not help as much for the cervical spine.
She stated that her 'biggest struggle' is coming to terms with her incapacity.
Her spinal injuries have been made worse with the weight gain. As well, the hydrotherapy closed down over COVID-19. She only has an outdoor pool but she does try to walk as much as possible.
Her neck can get worse if she swims in the cooler pool.
Present Work Status:
Ms Scattergood is not working at present and is trying to sell some soft toys and arts.
Present Activities:
Ms Scattergood tries to use distraction, such as with her art and making soft toys.
She has difficulty cooking but does this. She also has difficulty shopping but has to do this. She often tries to take one of the children to help.
She usually lies down and rests after shopping. Her beck pain gets worse."
In his report at that time he rejected a suggestion that the plaintiff was suffering from a "pain condition", saying that he did not believe that that was a good description of her current state. He said, "I believe her clinical picture is much more akin to a patient with a 'whiplash' injury to her cervical and lumbar spine."

In that report he made the following comments as to the plaintiff's capacity for employment:
"I believe that she can work in a sedentary employment. She could not do any tasks involving bending, lifting or twisting in the lumbar spine or causing strain on the cervical spine.
As I have mentioned in my previous report, I believe that she should be able to return to part-time employment so long as she was in a sedentary role with a good ergonomically designed setup and the ability to stand and stretch as needed.
...
I do not believe that there are any features of her presentation which should limit her returning to her previous roles in a call centre eventually."
He made the following comments as to her general prognosis:
"I believe that she will improve gradually over time. She is 49 years of age and significant degenerative disease should not limit the slow improvement over the next few years.
She had low back pain prior to the accident and this will likely continue. She will also continue to have some cervical spinal pain although, as mentioned above, I believe that it will improve and should functionally limit her less with time."
At the trial, Dr Gorman was asked whether he expected a complete resolution of the plaintiff's symptoms. He replied as follows:
"I think by five years after the accident, her symptoms will be still present, but not having a significant effect on her function. So I'm not expecting complete resolution to the symptoms, and – but, you know, by five years I think that people can learn to distract, learn to ignore them, and their function should be improving by then."
He went on to say that he thought it unlikely that the plaintiff would be back to full-time work after five years.
Under cross-examination he said that with appropriate equipment and breaks, the plaintiff should be able to undertake part-time employment in a call centre for 2½ hours per day, five days per week. He accepted that the perpetuation of the plaintiff's pain could be influenced by behavioural and psychological factors such as anxiety, depressed mood and inactivity. He expected that a psychologist would advise the plaintiff to attempt to undertake more activity, to attempt to lose weight, and to attempt to reduce her alcohol intake.

Mr Doig's evidence

Mr Doig saw the plaintiff in December 2018. He noted the following as to her symptoms and medication:
"She says now as far as her neck is concerned that she finds it hard to lay down. She finds it hard to sit for prolonged periods of time and this aggravates her neck. She is able to look at her emails only for about 15 minutes and she feels that her neck has plateaued. When it flares up she gets a significant headache. She still sees the osteopath which she finds helps quite a lot. She had noted a click and a crunch in her neck early on and this has now settled down to be mostly a click. She said that the pain in her neck occasionally radiates down towards the interscapula area, but that has improved a lot. The headaches that she had to start with have also improved quite considerably. At the time of the incident she was moderate. She is currently on Panadol Osteo, Tramal, Panadeine Forte, Nurofen, Olmetec Plus, Diltiazem, Rovastatin, Claratyne, Symbicort, Famvir, Omeprazole, vitamins and has no allergies."
He noted the following as to the restrictions resulting from her injury at that time:
"She has a restriction in looking down. She also says that she has not returned to crocheting, reading, or housework in any meaningful way. She says she rarely picks up the children from school because it is difficult. She finds difficulty in driving. She said that she used to play a lot of tennis. She said that she was starting to return to tennis with the aid of her physiotherapy at the time of the first accident and now she cannot do it."
He considered that the plaintiff's condition had not plateaued at that stage. He considered that the appropriate treatment was a pain management course for the purpose of rehabilitating her and getting her back into the workforce.
Mr Doig saw the plaintiff again on 2 September 2020 and noted the following as to her reported symptoms:
"She says now as far as her neck is concerned that she completed a pain management programme about twelve months ago. She. said she had some local anaesthetic and steroid blocks between C3 and C5. Unfortunately they did not really help her a great deal and she continued to have ongoing pain and discomfort. She said the pain management programme did not make a great deal of difference as far as her pain was concerned, but it did help her to cope better which was the primary reason for the pain management. She continues to have pain in the neck. She said it radiates down both arms towards the upper arms. She said she had some paraesthesia in the radial three digits on each side. She said at one stage she was told apparently by an examiner that this was probably due to a CFS leak and therefore she has been referred to see a neurologist about that, but she has not seen them as yet. Since finishing the pain management course she feels that there has not been a great deal of change as far as her neck is concerned. She said she has also been diagnosed as having temporomandibular joint dysfunction. She said she is looking at having steroid injections into that and she has been referred to see a faciomaxillary surgeon for this. She said she tried hydrotherapy. She tried to lose weight in order to try and help herself, but she said that those have not really helped very much at all and she has continued to have ongoing problems. As far as her thoracic spine is concerned she still has the ache in the interscapular area. She says overall she feels clumsy. The ache in the thoracic area stays primarily in the thoracic area and does not really radiate a great deal. She feels that this has not improved either. It is related to activity. She says if she is too active or not active enough, the pain in the thoracic area becomes worse so she has to try and modify what she does in order to stay reasonably mobile. She said she will also have an occasional paraesthesia in her feet, Once again that has not been looked into at all and has not been investigated at all. She is currently on Tramal SR, Tramal for breakthrough pain, Panadol Osteo for which she will take about three a day and rarely takes Endona. She also uses heat packs, ice packs, and Nurofen. Her other medications remain the same."
At that time he noted that the ranges of movement of the plaintiff's cervical spine and lumbar spine were both a little worse than in December 2018, but that her thoracic spine remained the same. He considered it likely that she would have ongoing problems with pain and discomfort in the spine, and that her restrictions were going to be permanent. As to her prognosis, he said the following:
"The future prognosis here I still consider is guarded. Again she had an ongoing problem with her low back prior to this accident. Again she is still carrying some extra a weight although she said that she is trying to lose some of that and I think it is likely that she will continue to have ongoing pain no matter what else is done."
In a letter dated 4 October 2021, in which he commented on a surveillance video and other material that had been sent to him, Dr Doig said he considered that the plaintiff had "no current work capacity". That remained his opinion at the trial.

Evidence of Dr Evenhuis

The plaintiff saw Dr Evenhuis for the purpose of this litigation on 28 November 2019. He noted the following as to her description of the psychological sequelae of the accident:
"Ms Scattergood said that most of the time she was able to hold it together but she had become more irritable and less patient. Ms Scattergood said she felt exhausted as a result of pain and would get upset that she was upset, She generally lacked patience and would be short with her husband. Ms Scattergood said that she used to be very sociable and there had been various parties for friends' 50ths, The last one she attended she only stayed and hour as she did not feel comfortable whereas she and her husband used to be the last to leave. Ms Scattergood said that her appetite had been maintained and there was some comfort eating but not to the point of bingeing. Whereas when she was able to exercise regularly this led to good eating habits, the opposite was occurring at present. Ms Scattergood said she had no libido and this had been a change since the accident, mostly as a result of pain. In addition, she gained 60kg over the last two years which had impacted on her self-esteem. Ms Scattergood said that she gained considerable weight following her pregnancies but lost it again afterwards and that she had been in the low 70s prior to the car accident.·
Ms Scattergood felt as though she was not herself anymore because she could not exercise, She said that she spent a lot of money on trying to look good but was running out of sizes. Ms Scattergood said that whilst her mood was generally positive, she had struggled over the last two years. She indicated that she remained positive in the period directly following the accident but by eight months and 12 months she was becoming frustrated and demoralised by her lack of improvement. Ms Scattergood added that she used to rollerblade from the Cenotaph to Northgate and now her rollerblades sat there and grew cobwebs. Ms Scattergood felt that she might consider suicide if it were just her but this was not the case as she had children. She said that somebody she knew had a friend commit suicide and she saw the damage that it did.·
Ms Scattergood endorsed feeling fatigued .and said that it was difficult to sustain her focus. Ms Scattergood said that pain could affect her concentration, as could medication.
When asked about barriers to returning to work, Ms Scattergood said that she was not currently physically capable of sitting down and taking calls. She had tried work for a couple of hours but because her symptoms varied she did not feel she would be able to attend work consistently. It was potentially possible for her to work from home. Ms Scattergood said that some days she could not even watch TV programs. She used to read frequently but at present found holding a book and holding her neck In place difficult.·
Ms Scattergood said that she was generally okay with driving but sudden braking made her feel anxious particularly if the kids were in the car. She would instruct them to hang on. Ms Scattergood said she generally avoided driving due to pain and could not tolerate more than 30 minutes In the car due to growing discomfort."
In his report of 7 December 2019 Dr Evenhuis said the following as to the plaintiff's diagnosis:
"From a psychological point of view, Ms Scattergood's presentation is consistent with an Adjustment Disorder with Depressed Mood which has become chronic as a consequence of the chronicity of her pain symptoms. Whilst there is likely a psychological component to her pain, there does not appear to be a great deal of abnormal illness behaviour and I would hesitate to diagnose Somatic Symptom Disorder with Persistent Pain noting that her childhood experience of surgery could have increased her vulnerability towards developing a chronic pain condition. Whilst there may be some level of disparity between objectively identifiable pathology and her levels of pain and dysfunction, my experience in similar cases suggests that this is not unusual for flexion extension injuries and I note that other experts have not identified abnormal illness behaviour but are concerned about her prognosis."
In that report Dr Evenhuis responded to a series of questions as to the plaintiff's psychological condition, its impact, and her prognosis. The questions and answers included the following:
"4   What role is any psychological condition playing in a potential return to work.
In my opinion, Ms Scattergood's symptoms of Adjustment Disorder with Depressed Mood are not adding much in the way of Incapacity once her physical restrictions are taken into account. Whilst she describes issues with fatigue and poor concentration which would impact on work tolerance, these symptoms may be a. direct result of pain and resulting insomnia rather than a consequence of her depressed mood. Furthermore, if her levels of pain were to be more manageable and she was able to return to work, I would expect a significant improvement in mood, Whilst Ms Scattergood's level of alcohol consumption is hazardous, I understand that she drank to this level in the past without it impacting upon work performance or work attendance.
5   Do you believe her restrictions are likely to continue and if so to what extent.
In my opinion, Ms Scattergood's mood difficulties and problems with fatigue and poor concentration are likely to continue until her neck and back pain become more manageable. Ms Scattergood may be able to adapt better to her restrictions and I would anticipate some improvement in her mood if she is able to re-engage socially and occupationally, but again, some progress towards treating her pain will be required for this to occur. Ms Scattergood's sleep may improve if she is able to address her alcohol use and find other strategies for getting to sleep and this may have a positive effect upon her function. I note that the prognosis of her physical condition is somewhat guarded and hence her adjustment difficulties may well become chronic which will put her at risk of developing a mood disorder which could become self-perpetuating. Ms Scattergood's secondary mood difficulties are likely to continue to some extent until her physical symptoms are able to be better controlled or managed.
6   To what extent is her psychological condition impacting on her ability to engage in normal social, recreational and domestic activities.
Ms Scattergood's fatigue, lack of motivation and anticipation of experiencing pain are limiting her engagement in social and recreational activities. I understand that her physical restrictions are impacting upon her domestic activities. It is not clear to what degree psychological factors are impacting upon her experience of pain but the anticipation that she will not be able to manage her pain away from home is certainly contributing to a degree of withdrawal and impacting on her social life. She has also become less positive and more irritable and weight gain has impacted upon her self-esteem, further feeding the avoidance behaviour. Ms Scattergood's use of alcohol is currently hazardous and were her consumption to again escalate, then this would likely cause further issues with her engagement with the community.
7   Is any treatment indicated Into the future and If so what is the nature and likely cost of this?
Ms Scattergood is likely to require a multidisciplinary approach to management of her mood and pain such as that offered through a pain clinic. She would certainly benefit from input from both a psychiatrist and. psychologist with respect to her pain and her mood. I would expect her to require an antidepressant for at least two years, she may require up to 20 sessions of psychological therapy at a cost of $5000 and six psychiatric consultations at a cost of $1500. Ideally, there would be co-ordination between her pain physician, psychiatrist, psychologist and physiotherapist as part of a multidisciplinary approach. If Ms Scattergood does go on to develop a Major Depressive Episode there may be a longer term need for psychiatric input.
8   What is her future prognosis generally.
Ms Scattergood's prognosis is mixed. On the one hand, she has previously enjoyed fairly positive mental health only really experiencing some emotional difficulties in the context of menopause. On the other hand, she is now facing potentially chronic pain lifestyle restrictions that may also impact upon her ability to return to work. If there is no improvement in her pain, she will have to adapt to pain and restrictions and it remains to be seen whether or not she will be able to do so effectively and again achieve a satisfying work and recreational life. With appropriate multidisciplinary therapy for her pain I would expect some further improvement and there may be further benefits to her mood if she is able to address her use of alcohol. As alluded to above, if her pain becomes chronic and her use of alcohol continues, she will be at risk of developing a Major Depressive Disorder which could become self-perpetuating and incapacitating in itself. It is important that she access appropriate psychological and psychiatric intervention to help prevent this outcome."

Dr Evenhuis adhered to those opinions at the trial. He said the following as to the plaintiff's prognosis:
"I'd say the prognosis has become guarded. You see, majority of adjustment disorders will resolve within six months once the stressor is dealt with. In Ms Scattergood's case, I understand from reading reports that her pain and the restrictions have been ongoing and she hasn't been able to return to work. And once pain's been around for that long, it tends to stick around and that's possibly – going to mean that I'm not going to expect a complete remission of symptoms. So, I would expect some moderate improvement, I wouldn't expect a fully [sic] recovery.
He went on to say that the prognosis would worsen if the plaintiff developed a major depressive episode, and that at least one third of people who have one such episode will go on to have subsequent episodes. He considered that a patient with chronic pain who had lost the protective factors of exercise and work would probably be in a higher risk bracket for recurrence.

Evidence of Dr Macrossan

Dr Macrossan said that, before the February 2018 accident, the plaintiff was overweight, drank too much, and could easily be described as "a functioning alcoholic". He said that in the years before the accident she was drinking between one and two bottles of wine per day but that that fluctuated with various treatments and life events. He said that, despite that level of drinking, she managed to run her family, work, play tennis and other sports without any adverse effects. He said she rarely had time off work. He said that her reported alcohol consumption at the time of the trial was about two glasses per day, with a couple of days without alcohol each week. He considered that she was not exaggerating her fitness and wellbeing. He said that he had always found her to be "very genuine and quite driven".
Under cross-examination he said that the plaintiff needed to lose weight through exercise and reduction in alcohol consumption, and increase her core strength. He considered that pain management, medication and counselling were appropriate. He said that she had a sacroiliac joint dysfunction and bursitis in 2015. He said that she ceased playing competitive tennis then, and that weight gain subsequently became an issue. He said she put on about 30 kilograms before the accident and about another 30 kilograms after the accident.

Report of Dr Vivian

At the request of the Motor Accidents Insurance Board ("MAIB"), the plaintiff saw a Melbourne musculoskeletal physician, Dr Vivian, on 10 December 2019. He provided the MAIB with a comprehensive report. He was not called as a witness, but his report was tendered as part of the records of Dr Macrossan's practice.
Dr Vivian's comments as to the plaintiff's condition included the following:
"She presents with as extreme a disability I have ever seen in my 40 years of pain medicine practice. It seems that prior to that MCA she had various health problems including pain in the mid-back, low back and pelvis that took a considerable time to recover from, and it appears that the MCA has exacerbated these problems. The neck pain and headaches are new problems, and seem related to this MCA. However, she was making a recovery until a second incident when she was in a car that braked suddenly. This second very benign incident seems to have at least exacerbated her symptoms.
So, she has developed headaches, and fairly generalised spinal pain, and the headaches and neck pain began with that accident, and there was an aggravation of pre-existing but at the time quiescent interscapular pain and left sided back pain. Her condition was significantly exacerbated by the braking incident in May 2018.
Since the accident, the condition has been compounded by this extreme disability, associated with marked weight gain, some binge drinking, and post-traumatic stress disorder symptoms.
She still described getting nervous when she is travelling in the car with her husband and the car in front brakes. Otherwise she does not think she has anxiety. However, she was very teary during the examination today.
Her husband was not injured in the accident. She has developed severe symptoms as a result of the accident. This may increase the odds that her pain results from a central sensitisation process, even if there is some biological injury such as to cervical facet joints, which would not in any case explain all her symptoms."
Dr Vivian opined that the plaintiff's prognosis was poor. He said the following as to the possibility of her returning to work:
"She does get pain when she sits, stands, looks at her iPhone, does anything for short periods, and she is not doing anything at home. The inability to do anything much at all needs psychological evaluation. None of these activities will cause injury, and although they do cause pain, if she was going to get back to work she would need to do so despite pain."

Mr Scattergood's evidence

The plaintiff's husband gave evidence that, before the February 2018 accident, the plaintiff was enjoying her work, that she was coping very well with the household tasks, that her demeanour was very good, and that she had resumed playing tennis in or about 2017. He said that she was very stoic before the accident.
He said that the plaintiff was quite nervous in a car after the February accident, and that slight braking seemed to make her tense. He said that since the May incident he had not seen much improvement in her neck, that she still suffers a lot of pain and takes a lot of pain killers, that she is not as fun-loving as she was, that they no longer go out for dinner, that they rarely see their friends now, and that she is unable to attend functions for more than about an hour because her pain levels then become too much. He said that she was very happy-go-lucky before the February accident, but is not the same person that she was. When asked about "matrimonial affairs", he responded, "That hasn't gone so well since the accident. There's no drive any more."
When he was cross-examined he agreed that lower back pain had been a constant in the plaintiff's life before the February accident.

The plaintiff's credibility

Counsel for the defendant submitted that the plaintiff was not disabled in any real sense, that she was grossly exaggerating her symptoms and incapacity, and that she had unreasonably failed to mitigate her loss by returning to work when she was capable of doing so. He relied on evidence as to seven issues in relation to the plaintiff's credibility.

Problems as to returning to work

In mid-2021 attempts were made by officers of DPAC to assess the plaintiff's ability to return to work. Two appointments were made with an occupational therapist and ergonomist who was working for a rehabilitation provider. Each of those appointments was cancelled as a result of the plaintiff advising that she was not well enough to attend. On the first occasion, she said she was suffering from "gastro". I have no reason to doubt the truth of that assertion. On the second occasion, she said that her neck and back were "not good at all". A human resources officer in the department decided not to make another appointment. That officer, Rachel Stride, spoke to the plaintiff by telephone on 30 June 2021. She recorded in a file note that she asked the plaintiff if there was anything that could be done to assist with a possible return to work "such as desk equipment, flexible work options, gradual return, etc". She noted, "Mrs Scattergood downheartedly said unfortunately there isn't. Her chronic pain levels at this stage unfortunately won't support a return to work."
When she was cross-examined, the plaintiff failed to acknowledge the possibility that equipment could be provided to facilitate her returning to work. Her cross-examination began as follows:
"When you were giving your evidence this morning, I think you gave evidence to the effect that you thought you'd have trouble looking at multiple screens in your job at DPAC, do you remember that evidence?........I do.
Could you turn and explain to his Honour why it is exactly that you are going to have that difficulty?.....I have pain.
You haven't though since May attempted to work with two screens at DPAC have you?.....Not at DPAC, no.
No, so how do you know?.....I don't know.
No, no. Have you for example spoken with anyone about using – only having one screen back at DPAC?.....No.
You haven't. But that's the sort of thing that you might be able to have adjusted for you in the workplace at DPAC isn't it?.....I don't know.
Ms Stride was required to investigate whether the plaintiff was able to efficiently and effectively perform her duties. In a detailed report to the Secretary of DPAC dated 8 July 2021, she noted that, during a telephone conversation on 17 May 2021, the plaintiff told a senior human relations consultant that "she was mulling over whether she should just resign from her employment rather than participate in the investigation".
It was put to the plaintiff that she did not want to participate in Ms Stride's investigation, and that she was reluctant to attend the appointments with the occupational therapist, but she did not agree with those propositions. She denied that she did not make any effort because she did not want to jeopardise her award of damages, and that her motivation was maximum financial gain.

Cross-examination about medical reports

During her cross-examination the plaintiff agreed that she was aware of the contents of the reports of Dr Gorman, Mr Doig, Ms Richards and Dr Evenhuis. She then gave a couple of answers that appear to have been evasive. The cross-examination proceeded as follows:
"And it's the case, was it, that as those reports would come to hand, you would see them, see what they said about you and how you were travelling and so on and so forth?........I’m unsure.
But you were aware of their contents?........Not to any degree of clarity."
Counsel for the defendant relied on some further cross-examination at a later stage in relation to a report of Dr Gorman, which proceeded as follows:
"Again, I come back, why didn't you tell MAIB about Mr Gorman's report, and why didn't you tell DPAC about Mr Gorman's report, so that they could make a proper assessment about whether you could return to work on a part-time basis?.....I don't know.
Is it that you don't have any explanation or?.....I don't know.
But you – you'd agree, wouldn't you, I mean, that Doctor Gorman's report is saying – he's your specialist, he's your expert, and he is saying to you, you can do your job part-time. Are you telling me you didn't know that?.....No, I didn't."
In my view the plaintiff could have given a very reasonable explanation for not sending Dr Gorman's report to the MAIB. She and the MAIB each had solicitors. The provision of Dr Gorman's report to the MAIB or its solicitors was a matter for the plaintiff's solicitors, not her, to decide upon. Further, if the doctor's opinion as to her capacity for a return to work was different from hers, it would require remarkable altruism for her to tell the DPAC of the doctor's view. The answers in that passage in my view do not indicate dishonesty. They indicate that the plaintiff had difficulty answering questions under the pressure of cross-examination when, with clear thinking, she could have given truthful answers that were unfavourable to the defendant. The answers relied on by counsel for the defendant as indicative of dishonesty appear, in my view, to be the result of the "fatigue and poor concentration" referred to by Dr Evenhuis.

Inconsistencies as to alcohol consumption

There were some inconsistencies in the plaintiff's evidence about her alcohol consumption. In her evidence-in-chief she said that immediately before the accident she and her husband would probably drink two bottles of wine per night – probably a bottle each. Early in her cross-examination she said that before the accident she was not drinking to relieve pain. Later in her cross-examination, she was asked about a document in her medical records dated August 2016 in which it was said that she was drinking up to two bottles of wine per night to manage her pain. She agreed that that was correct. She also conceded that she had understated her pre-accident alcohol consumption when she said that she would share two bottles per night with her husband.

Inconsistency as to a bull bar

During her evidence-in-chief the plaintiff said that Major Wren's vehicle had a large bull bar at the front of it. Under cross-examination the plaintiff conceded it did not have a bull bar. If the vehicle had been equipped with a bull bar, that would not have had any impact on my assessment of the plaintiff's damages.

An unreliable speed estimate

When the plaintiff was seen at Calvary Hospital some hours after the accident, she stated that the vehicle that struck hers from behind was travelling at 60 kilometres per hour. She gave the same estimate when she completed and submitted the MAIB documentation in March 2018. It was put to her during her cross-examination that her estimate of the speed was a gross exaggeration. She responded that she did not disagree.

Evidence about tennis

The plaintiff gave evidence that she had resumed playing tennis before the February 2018 accident. Counsel for the defendant submitted that I should treat that evidence with caution. That evidence was corroborated by the plaintiff's husband. Her physiotherapist made a note on 3 November 2017 that she had not played tennis for 2½ years. That could well be correct. She could have resumed playing tennis at some stage shortly after that date. In Dr Gorman's first report he noted, "She had stopped playing tennis in 2015 but was attempting to get back to playing some in the future but she has not however been able to do this." In a report written by Dr Francis to Mr Thani on 16 August 2018, he noted that the plaintiff was playing a lot of competitive tennis before the onset of low back pain in 2015, but said nothing as to whether she had resumed playing some tennis before the accident. It may well be that Dr Francis did not ask whether she had resumed playing any tennis before the accident. It may be that she gave Dr Gorman incorrect information about resuming the playing of tennis as the result of lack of concentration. Or it may be that he misunderstood what she was telling him. I note that he said in his first report that the accident occurred "on the main arterial highway out of Adelaide" and that her husband ran into the vehicle in front.

Surveillance evidence

The private investigator, Mr Smith, together with one of his colleagues conducted a covert surveillance operation, making observations of the plaintiff on five days in July 2021. Their observations were as follows:
·On the afternoon of Tuesday 20 July the plaintiff left her home at 2:06pm, collected her son from school in Glenorchy, and arrived home at 2:36pm.
·     On Wednesday 21 July she left home at 8:09am, drove to Glenorchy, drove a child to the Albuera Street Primary School, and then drove to Salamanca Place where she parked the vehicle at 8:51am. She went shopping, drove away at 8:57am, and went home.
·     The plaintiff was not sighted on Thursday 22 July.
·     On Friday 23 July the plaintiff left her home at 8:19am, drove to the Albuera Street Primary School, and then drove home, arriving at 9:15am.
·     On Monday 26 July, no significant observations were made.
Videos of the plaintiff's journeys on the Tuesday, Wednesday and Friday were tendered. They establish that she was capable of driving very quickly through suburban traffic, and capable of undertaking return journeys lasting an hour or a little longer. The estimate recorded by Dr Gorman in June 2019 of 30 minutes as "her maximum driving" was obviously inaccurate. The videos were played during the plaintiff's cross-examination. She agreed that she went through back streets to get to her son's college, making a lot of left and right turns, and that that required her to turn her head a lot. She said she found it difficult to check blind spots, particularly on her left. She said that she had anxiety about unexpected braking, but did not have anxiety in general about driving. She accepted that she was a confident driver. She said she found it very uncomfortable to drive for 40 minutes or thereabouts.

Conclusion as to the plaintiff's credibility

Counsel for the defendant made submissions to the effect that the plaintiff's evidence in general was affected by exaggeration and unreliability. He certainly did not suggest that her exaggeration and unreliability were limited to the seven topics that I have discussed. Despite the catalogue of inaccurate statements, inconsistent statements and unsatisfactory answers assembled by counsel for the defendant, I am not persuaded that the plaintiff is a dishonest or unreliable witness. Many of the pieces of evidence relied upon are of little significance. I have no doubt that the plaintiff has difficulty concentrating, and that she was not at her best when she was being cross-examined. It is significant that none of the medical witnesses considered her to be telling lies or exaggerating her symptoms. Dr Macrossan, whom she has been seeing since 2009, said that he had always found her to be "very genuine". She has been reasonably consistent in her descriptions of her symptoms to the various medical experts. Her reported symptoms might be seen by some to be disproportionate to her physical injuries, but that is because there is a psychological component to her symptoms.

Liability for mental harm

The defendant contends that it should not be held liable for any harm suffered by the plaintiff other than physical harm. That is to say, it contends that it should not be held liable for any psychiatric or psychological consequences of her physical injuries. It relies on s 13(1)(b) of the Civil Liability Act. Section 13 of that Act reads as follows:
"13 General principles
(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a)   the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b)   it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability').
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty, being a breach of duty that is established but which cannot be established as satisfying subsection (1)(a), should be taken as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach –
(a)   the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b)   any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty."
Section 13(1)(b) requires a value judgment to be made as to whether it is appropriate to impose legal liability for a particular category of harm on a person in breach of a legal duty. In this case, the question is whether it is appropriate to impose liability for damages in respect of the plaintiff's mental harm on the Commonwealth as an employer that is vicariously reliable for Major Wren's negligence.
In Wallace v Kam [2013] HCA 19, 250 CLR 375 the High Court considered a provision identical to our s 13 in the Civil Liability Act 2002 (NSW), s 5D. The court said, at [22]:
"In a case falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent. Section 5D guides but does not displace common law methodology. The common law method is that the policy choice once made is maintained unless confronted and overruled."

This is not a novel case. It is very common for patients who have suffered physical injuries, including whiplash injuries, to develop psychiatric or psychological symptoms. Accordingly to Dr Evenhuis, it is his experience that when people develop chronic pain, roughly one in three of them go on to develop major depression. For many years courts have routinely awarded damages for the mental consequences of physical injury. The mental consequences of a plaintiff's physical injury are part of that plaintiff's pain and suffering. The plaintiff's right to recover damages for the mental consequences of physical injuries depends on the foreseeability of mental harm, but the manner in which the mental harm comes about need not be foreseeable: Commonwealth v McLean (1996) 41 NSWLR 389; Kavanagh v Akhtar (1998) 45 NSWLR 588. I am satisfied that it was reasonably foreseeable that, if Major Wren's vehicle collided with the vehicle in front of it, a passenger in that vehicle might suffer a physical injury and consequential psychological or psychiatric symptoms.
Counsel for the defendant made a submission to the effect that the defendant is not liable for any mental harm suffered by the plaintiff because, by virtue of s 34 of the Civil Liability Act, there was no duty to take care not to cause the plaintiff mental harm. He also submitted that the plaintiff has not suffered a recognised psychiatric illness, and is precluded from recovering damages for economic loss for mental harm by s 35 of that Act. Sections 34 and 35 read as follows:
"34 Mental harm – duty of care
(1)   A person ('the defendant') does not owe a duty to another person ('the plaintiff') to take care not to cause the plaintiff mental harm unless a reasonable person in the position of the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)   For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock;
(b) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3)   For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the nature and extent of personal injury suffered by the plaintiff.
(4)   This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
35    Liability for economic loss for consequential mental harm
A court cannot make an award of damages for economic loss for consequential mental harm resulting from breach of duty unless the harm consists of a recognised psychiatric illness."
First of all, it was submitted that the plaintiff has not suffered a recognised psychiatric illness, but only an increased perception of her pain. I reject that submission. Because of his expertise in psychiatry, I accept the evidence of Dr Evenhuis that the plaintiff has been suffering from an adjustment disorder with depressed mood. I am satisfied that that is a recognised psychiatric illness.
Section 34 requires consideration to be given to various circumstances. This is a case about a whiplash injury, not a sudden shock. There was no relevant pre-existing relationship between the plaintiff and the Commonwealth. She suffered a whiplash injury of sufficient seriousness for her to seek emergency hospital treatment and take time off work. The injury produced enduring physical symptoms and created a vulnerability to exacerbation. It is very common for psychiatric conditions to develop in consequence of injuries of such seriousness. It follows that a reasonable person in the position of the defendant ought to have foreseen that a person of normal fortitude in the plaintiff's position might suffer a recognised psychiatric illness if reasonable care were not taken to avoid a collision. Section 34 therefore does not help the defendant.

Residual earning capacity

Counsel for the defendant submitted that I should accept Dr Gorman's evidence concerning the plaintiff's past and future capacity for work. As I have said, Dr Gorman believed in June 2019 that the plaintiff would be able to attempt a return to part-time employment within two to three months. In March 2021 he believed that she was capable of working part-time in a sedentary role "with a good ergonomically designed set up and the ability to stand and stretch as needed".
However Dr Gorman's views were not shared by Mr Doig, Dr Evenhuis or Dr Vivian. At the trial Dr Macrossan was not asked about the plaintiff's capacity for work, but his records show that he provided a series of certificates to the MAIB certifying that the plaintiff was unfit for work. He clearly did not regard her as a malingerer.
I reject Dr Gorman's evidence as to the plaintiff's pre-trial capacity for work because it is contrary to the weight of the medical evidence. On the basis of the evidence of the other doctors, I am satisfied that the plaintiff was not fit to return to any work prior to the trial.
None of the medical witnesses have ruled out the possibility of the plaintiff returning to the workforce. None have expressed confidence in her being able to do so on a full-time basis. Even Dr Gorman did not suggest that she would ever be able to return to work other than in a part-time sedentary position with special equipment and special arrangements. For the purpose of assessing damages for the impairment of her future earning capacity, I accept that there is a substantial chance that, within the next few years, the plaintiff will be able to resume part-time work of the sort that she had before her accident, but no significant chance of her undertaking any sort of work that is more remunerative than that.

Past economic loss

At the time of her accident the plaintiff was employed in Service Tasmania as a customer services officer. She was initially engaged on a part-time basis. She was working full-time, but was required to apply every three months to continue to work full-time instead of part-time. After her accident, apart from a brief period of return to work, she took leave on full pay until 14 June 2018. Since then she has been receiving a disability allowance from the MAIB. The rate for such an allowance was equal to 80% of the recipient's pre-accident average weekly earnings: Motor Accidents (Liabilities and Compensation) Regulations 2010, Sch 1, Pt 5, cl 3(5)(a).
The plaintiff's taxable income for the year ending 30 June 2018 was $51,147. That included a component of $1,523 by way of a disability allowance from the MAIB. The only other source of income was her salary from DPAC. I have calculated the plaintiff's net income for the year ending 30 June 2018 as follows:
Taxable income         $51.147
Less income tax         ($8,170)
Medicare levy           ($1,023)
Net income                $41,954
This equates to a net income of $806.81 per week.
The plaintiff was happy in her work. She was well regarded by the management of Service Tasmania. There is every likelihood that the authorities would have continued to grant her quarterly applications to work full-time rather than part-time. She was underemployed. She had worked successfully in supervisory and managerial positions in the hospitality industry. She joined the State Service with a view to obtaining higher-level better-paid work. It was a sensible strategy since well-paid positions are often open only to applicants already employed in the State Service. By the time of her accident, the plaintiff, who was employed in a Band 3 position, had unsuccessfully applied for four positions at Bands 5 and 6. Arrangements had been made for her to attend an interview for another Band 6 position shortly after the accident, but she cancelled the appointment because of her whiplash injury.
As at June 2018 the gross full-time salary for an employee at the plaintiff's then level, Band 3, Level 3, was $61,968. The commencing salary for a full-time Band 6 employee was then $89,714 gross. Since then there have been four salary increases for State Service employees: 2.1% on 13 December 2018, 0.25% on 22 August 2019, 2.30% on 12 December 2019, and 2.30% again on 10 December 2020. If the plaintiff had moved to a Band 6 position in late 2018 or in 2019, she might now be at Band 6, Level 4 for which the gross annual salary is $101,224. If she had remained as a Band 3 employee, she might now be at Band 3, Level 6, for which the gross annual salary is $70,462.
From the plaintiff's point of view, the best case scenario is that she would now be earning $101,224 per annum gross. If so, her net income would have been as follows:
Gross annual income   $101,224
Income tax thereon     ($23,365)
Medicare levy             ($2,024)
Net income                 $75,834
This equates to a weekly income of $1,458.36 net.
Counsel for each party submitted that I should assess past economic loss by reference to a net weekly figure from the date of the accident to the date of the judgment. Counsel for the plaintiff submitted that I should adopt a figure of $1,191 per week. Counsel for the defendant submitted that I should adopt a figure of $839.09 per week and then make a substantial deduction in respect of retained earning capacity.
The higher of those two figures, $1,191 per week net, is the present equivalent of an income of $80,000 per annum gross. It would be an appropriate figure if, but for her injury, the plaintiff would have earned an average of $80,000 gross in the years since her accident.
The defendant's counsel's figure of $839.09 per week net represents the equivalent of a gross taxable income equal to 80% of the gross annual salary of a Band 3, Level 2 employee. For one thing, the evidence establishes that the plaintiff progressed to Band 3, Level 3 in October 2017. Counsel for the defendant submitted that the plaintiff's true pre-injury earning capacity should be assessed on the basis of an ability to work only four days per week because of the plaintiff's various medical conditions that are unrelated to her accident to any significant degree. However none of those conditions interfered with her capacity to work before the accident to any significant degree. Her drinking problem did not interfere with her work. She was described by Dr Macrossan as "quite driven". In my view there is no significant chance that, by now, her earning capacity would have been impaired to any significant extent by any of her various medical problems.
In my view it is highly likely that, but for her injury, the plaintiff would now be earning substantially more than the claimed figure of $1,191 per week net. She would probably be earning much more than that in a State Service position. There is a chance that she might have found a remunerative position in the private sector. In my view the claimed figure of $1,191 per week is a reasonable one, given that it is an average figure for a period of about four years, and given that the plaintiff would have started that period earning substantially less, and would probably now be earning substantially more. I am satisfied that it is an appropriate figure for me to adopt.
It is an agreed fact since the February 2018 accident the plaintiff has received $15,000 from employment. I infer that that is a net figure rather than a gross figure. I must also take into account the $215.60 received from the Body Shop. I will ignore the revenue from the sale of soft toys because I have no evidence as to the cost of the materials used by the plaintiff.
I calculate the plaintiff's damages for past loss of earnings as follows:

Earnings from 1 February 2018 to 13 April 2022 (219 weeks at $1,191 per week).

$260,829

Less actual earnings

$15,215

Lost earnings

$245,614

Disability allowance

The plaintiff's damages will have to be reduced pursuant to s 27(1) of the Motor Accidents (Liabilities and Compensation) Act 1973 to take account of the disability allowance paid by the MAIB, which amounted to $141,384.91 before tax as at 24 October 2021. Before that date the plaintiff was receiving fortnightly payments of the disability allowance at a rate of $1,523.42 before tax. I infer that she will have received a further twelve fortnightly payments at that rate in respect of the period ending on 10 April 2022.
It follows that the plaintiff's damages must be reduced by $159,666.

Fox v Wood damages

A lump sum award of damages is not taxed. The High Court held in Fox v Wood (1981) 148 CLR 438 that, when a plaintiff receives periodic payments of workers compensation that have to be reimbursed following an award of damages, and has been liable to pay income tax on the workers compensation payments, the amount of tax must be included in the damages as an additional loss. It must follow that the income tax paid or payable on a plaintiff's disability allowance payments from the MAIB must be included in his or her damages. The Medicare levy did not exist when Fox v Wood was decided. It is a second type of tax that is payable in respect of the incomes of individuals: Port Sorell Bowls Club Inc v Dann [2022] TASFC 2 at [88]-[92]. It follows that damages should be awarded to the plaintiff to compensate for her income tax and Medicare levy liabilities that have resulted from her receiving a disability allowance from the MAIB.
During the 2017/18 financial year, the plaintiff received only one payment of disability allowance, amounting to $1,523.42. At [99] above, I calculated her income tax and Medicare levy for that financial year to amount to $8,170 and $1,023 respectively, a total of $9,193. That represents just under 18% of her taxable income of $51,147 for that year. She should receive Fox v Wood damages amounting to 18% of $1,523.42 in respect of that year.
In the 2018/19 financial year the plaintiff received fortnightly payments of $1,523.42 gross as well as some payments of arrears of disability allowance in respect of the previous financial year. She would have been liable to pay income tax and the Medicare levy in respect of the gross amount that she received during that financial year. Since then the plaintiff has received payments at the rate of $1,523.42 per fortnight. There is no reason to think that the plaintiff has received any other taxable income since 30 June 2018, nor that she is likely to during the current financial year.
On the basis of that information I have calculated the plaintiff's liabilities for income tax and the Medicare levy in respect of the period since the accident as follows:

Year MAIB payments Income tax Medicare levy Total payable

2017/18      $1,523.42      $274.22

2018/19     $46,932.87     $6,800.18     $938.65     $7,738.93

2019/20     $39,608.92     $4,419.60     $792.18     $5,211.78

2020/21     $39,608.92     $4,067.52     $792.18     $4,859.70

2021/22     $31,991.82     $2,620.29     $639.84     $3,260.13

Total

$21,344.76

The plaintiff must recover $21,344 under this head.

Loss of future earnings

The plaintiff is 50 years old. Women born after 1 January 1957 become eligible for the age pension, subject to a means test, on attaining the age of 67 years: Social Security Act 1991 (Cth), s 23(5D). The plaintiff has claimed damages for the future loss of her earning capacity on the basis that, but for her accident, she would have worked until about that age.
In particulars filed by her solicitors at the time of the trial, she limited her claim under this head to $674,906.15, representing an income of $90,000 gross per annum (or $1,316.98 net per week), discounted adopting a discount rate of 5% in accordance with s 28A(a) of the Civil Liability Act, less 15% for contingencies.
The figure of $90,000 per annum gross is a modest one. But for her injuries, the plaintiff could now be earning significantly more than that. As I have said, if she were employed in the State Service as a Band 6, Level 4 employee, she would be earning $101,224 per annum gross, or $1,458.36 net per week. In adopting the figure of $90,000 per annum gross, the plaintiff's solicitors have made a substantial allowance for the possibility of underemployment – that is, the possibility that the plaintiff might not have been able to fully exploit her earning capacity.
The figure claimed has been calculated using a multiplier of 602.9, which is the appropriate multiplier for calculating the present value of a fixed weekly payment for 17 years, adopting a discount rate of 5%.
A reduction of 15% to allow for contingencies is common in cases of this nature. The contingencies allowed for include early death, early retirement, unemployment, underemployment, sickness, accident and strikes. The possibility of underemployment is a very significant one in the plaintiff's case, but substantial allowance has already been made for it by her solicitors in adopting a figure of $90,000 per annum gross as a starting point. But for her accident, the plaintiff would probably have been at greater risk than most women of her age of being incapacitated by some sort of medical condition during the later decades of her working life because of her various medical problems. If substantial allowance had not already been made for underemployment, I probably would have discounted her damages under this head by more than 15% to allow for adverse contingencies. However, because that allowance was made, I think a reduction of only 15% for contingencies is reasonable.
Damages were claimed under this head on the basis that there should be no reduction to allow for any possible return to work. In my view that would not be appropriate. I am satisfied that there is a substantial chance that the plaintiff will be able to return to part-time low-paid work, but probably only for part of the next 17 years.
Dr Gorman spoke of the plaintiff returning to work for 2½ hours per day, five days per week. That represents 17.5 hours per week. In her position with Service Tasmania the plaintiff was paid on the basis that a full-time employee worked 36.75 hours per week. If she were to return to work full-time as a Band 3, Level 3 employee she would now be paid $66,378 per annum gross. If she were to return to work at that level for 17.5 hours per week, I calculate that she would be paid $31,608 per annum gross. The annual net income from such employment is as follows:
Gross income              $31,608
Income tax                 ($2,548)
Medicare levy                ($632)
Net annual income       $28,428
This represents a net income of $546.70 per week. I think it appropriate to make allowance for the plaintiff's possible residual earning capacity by assuming that there is a 40% chance that in two years' time she will be able to return to the workforce and earn a net weekly income of $546.70 in real terms. Applying multipliers from tables provided at the trial, I calculate that the appropriate figure is as follows:
$546.70 x 345.6 x 0.907 x 40% = $68,547.
After deducting that sum from the claimed figure of $674,906.15 and rounding the net figure upwards, I allow $606,400 under this head.

Past superannuation

Pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth) the plaintiff's employer would have paid superannuation contributions for her benefit at the rate of 9.5% of her gross salary until 30 June 2021, and at the rate of 10% of her gross salary thereafter. As a result of her injuries she has lost the benefit of employer funded superannuation contributions.
Once again, I think it appropriate to adopt a figure of $80,000 per annum as her average income. The amount required to compensate her for the period from 1 March 2018 to 30 June 2021 (174 weeks) if she had received no salary during that period can be calculated as follows:
$80,000 x 9.5% x 174 ¸ 52 = $25,431.

However the plaintiff received salary payments totalling $15,000 during the period from 1 March 2018 to 30 June 2018. That is the equivalent of about $18,293 gross. The 9.5% superannuation contributions on those payments would have amounted to $1,738. The amount to be awarded for the loss of superannuation contributions to 30 June 2021 must therefore be reduced by that amount, to $23,693.
The amount required to compensate her for the period from 1 July 2021 to date (40 weeks) can be calculated as follows:
$80,000 x 10% x 40 ¸ 52 = $6,154.
The Superannuation Guarantee (Administration) Act requires the rates of contribution to be increased as follows:
"Year starting on 1 July 2022               10.5%
Year starting on 1 July 2023               11%
Year starting on 1 July 2024               11.5%
Year starting on or after 1 July 2025    12%"
In the particulars filed at the time of the trial, the plaintiff's solicitors have claimed $74,239.67 for future loss of superannuation contributions. That figure represents 11% of the sum claimed for the loss of the plaintiff's future earning capacity. That figure was calculated by reference to the plaintiff's hypothetical net income, whereas superannuation contributions are calculated by reference to gross income. The figure based on net earnings appears to have been adopted by mistake. I do not consider that the particulars of the plaintiff's claim in respect of superannuation contributions are so fundamental that she should be bound by those particulars and precluded from recovering any greater amount than the sum claimed.
I assessed her damages for future lost earnings on the assumption that she would earn $90,000 gross per annum, reduced by 15% for adverse contingencies, and reduced by a little over 10% of the balance figure to allow for her residual earning capacity. A salary of $90,000 per annum equates to about $1,731 per week. Employer superannuation contributions in respect of such a salary will average at least 11% over the next 17 years. I calculate the amount required to compensate the plaintiff for the loss of future superannuation contributions as follows:
$1,732 x 11% x 602.9 x 85% x 90% = $87,820.
I award damages in respect of the loss of employer superannuation contributions as follows:
1 March 2018 to 30 June 2021     $23,693
1 July 2021 to date  $6,154
Future  $87,820
Total  $117,667

Past medical and associated expenses

The parties are agreed that there is no need to bring these expenses into account since they have largely been met by the MAIB by way of the payment of scheduled benefits.

Future medical and pharmaceutical expenses

As a result of her injuries the plaintiff will incur expenditure in the future for treatment by her general practitioner and various other health professionals, as well as pharmaceutical expenses.

General practitioner expenses

The plaintiff takes pain medication named Tramadol. Dr Gorman gave evidence that restrictions imposed under the Pharmaceutical Benefits Scheme mean that doctors are no longer able to write prescriptions for more than one month's supply of Tramadol at a time, and that the plaintiff will therefore need to see her general practitioner every month to get a month's supply. It is an agreed fact that the cost of an attendance on a general practitioner is $83. On average, a woman of the plaintiff's age has a life expectancy of 36 years. The plaintiff has claimed $16,943.92 in respect of future general practitioner visits. That is an appropriate figure to compensate a plaintiff for expenditure at a present rate of $83 per month for a period of 36 years, adopting the required discount rate of 5%.
However, as counsel for the defendant has pointed out, that claim ignores the fact that, if the plaintiff had not been injured in the accident, she would in any event have had to consult a general practitioner quite often because of her various medical problems. Counsel for the defendant submitted that an award of $5,000 to cover attendances on a general practitioner would be "more than adequate".
It may well be possible for a general practitioner to prescribe Tramadol every month without seeing the patient every month, especially when the patient has a chronic condition. I think it appropriate to allow about half of the amount claimed by the plaintiff in respect of general practitioners' charges, on the basis that her accident-related symptoms are likely to necessitate about six additional consultations per year. I award $8,500 in respect of general practitioner expenses.

Pharmaceutical expenses

The plaintiff gave evidence that she takes 100mg slow release Tramadol tablets every morning and night, as well as about three to five 50mg Tramadol tablets per week. The 100mg tablets cost 61 cents each. The 50mg tablets cost 56 cents each. The plaintiff's expenditure on Tramadol is therefore around $10.78 per week. She has claimed $9,538.14 for future Tramadol expenses, representing expenditure of $78 per week for 36 years, subject to a discount rate of 5%.
The plaintiff gave evidence that she is also taking six Panadol Osteo tablets per day and six Nurofen tablets per day to relieve her accident-related symptoms. She said she also uses Voltaren gel and heat packs. She said she also takes something called Palexia for her symptoms about three to five times per week. She has claimed $2,000 in respect of Panadol Osteo, Nurofen, Palexia, Voltaren gel and heat packs.
Counsel for the defendant submitted that an award of $1,000 in respect of medication would be more than adequate. He conceded that the plaintiff might need pain killers until her weight was under control and she adapted to her limitations.
It is not appropriate to assume that the plaintiff will need to spend as much on medication to relieve her accident-related symptoms for the rest of her life as she is spending now. All going well, she will reduce her alcohol consumption, lose weight, improve her core strength, and have significantly less need for pain medication, Voltaren gel and heat packs. Had she not been injured, her other medical conditions would have made it necessary for her to use painkillers from time to time. The calculation in relation to a lifetime supply of Tramadol provides a useful yardstick. Doing the best I can, I award $6,000 under this head on a broad brush basis.

Steroid injections and denervations

In his evidence-in-chief Mr Doig suggested that the plaintiff might benefit from targeted injections. He noted in his report of 2 September 2020 that she had had some local anaesthetic and steroid blocks between C3 and C5, and that they did not really help her a great deal. However he suggested that such targeted injections be tried again, possibly two or three times. He said that if that worked then a radio frequency denervation of that area could be of significant benefit. However he made it clear that a radio frequency denervation would not be appropriate if targeted injections did not help. The cost of a denervation is $1,000. The targeted injections in 2020 were administered by Dr Orlikowski. It is an agreed fact that a visit to him costs $154. The plaintiff has claimed $3,000 to cover targeted steroid injections and denervations.
Counsel for the defendant submitted that there was no evidence that these treatments would work, and that targeted injections had failed in the past.
Dr Gorman gave evidence to the effect that it would not be worthwhile repeating the targeted injections to the neck. Mr Doig, with perhaps some hesitation, took the opposite view. If the plaintiff wants to try that treatment again, that would not be unreasonable, given the conflict of medical opinion and the desirability of finding a solution to her problems. However there is only a chance that she might have more targeted injections, and there is an even smaller chance that they would prove so successful that a denervation would be considered appropriate. Having regard to those uncertainties, it is appropriate to award a small amount to allow for the possibility of expenditure on these treatments. I award $400.

Psychological treatment

On the basis of the evidence of Dr Evenhuis, I am satisfied that the plaintiff needs the help of a psychologist, and that she would be quite likely to benefit from treatment by a psychiatrist. Dr Evenhuis gave evidence at the trial as to the likely costs of appropriate treatment, to the following effect. He assumed that there could be a standard recovery over six months, and then a need for anti-depressants for two years. He estimated the costs of that treatment to be about $2,000. He estimated that a course of psychological therapy would cost a further $2,500, and that six consultations with a psychiatrist over two years might cost another $2,000. He estimated that, if the plaintiff became a non-responder and needed to spend a month in hospital, that would cost about $30,000 more. He said that at least a third of people who have one major depressive episode will go on to have subsequent episodes.
On the basis of that evidence, counsel for the plaintiff estimated that the cost of future psychological treatment, apparently including psychiatric treatment, would be between $4,500 and $40,000.
Counsel for the defendant submitted that the plaintiff was not likely to need a psychologist. He said she needed a good personal trainer to get her going. He submitted that an award of $10,000 to cover exercise physiology and counselling would be reasonable.
Dr Evenhuis' estimate of $2,000 in respect of anti-depressant treatment and so forth included an unquantified component for consultations with a general practitioner. I will not award anything further for general practitioner consultations, but I will take into account the cost of anti-depressant medication, which was not included in the claim relating to pain killers and so forth. I think I should allow $2,500 for sessions with a psychologist because the plaintiff should have them. The chance of the plaintiff needing to spend money on a psychiatrist is uncertain. That part of the claim should be allowed in part. A major depressive episode requiring expensive hospitalisation is a possibility, but I have the impression that that is more likely not to be necessary. A small fraction of the estimated cost of $30,000 should therefore be allowed.
Doing the best I can, I think should award $10,000 for future psychological and psychiatric treatment. In the particulars, the plaintiff claimed $5,080 for "psychological review", and nothing else in respect of psychological and psychiatric treatment. Counsel for the defendant observed in his closing submissions that the final amount sought by the plaintiff for such expenses exceeded the figure specified in the particulars, but did not expressly submit that the plaintiff should be limited to the amount specified in the particulars. I do not regard the plaintiff as bound by the particulars in the circumstances. I award $10,000 in respect of psychological and psychiatric expenses.

Physiotherapy and exercise expenses

Counsel for the plaintiff submitted that I should award $1,500 to cover future expenditure on physiotherapy and an exercise physiologist. Dr Gorman gave evidence to the effect that it would be appropriate for the plaintiff to see an exercise physiologist for three months annually over the next couple of years so as to exercise and develop strategies for exercise. The sum claimed is modest and, in my view, should be allowed.

Summary

For the reasons stated, the amounts awarded in respect of future medical and associated expenses are as follows:
General practitioner expenses  $8,500
Pharmaceutical expenses  $6,000
Steroid injections and denervations                   $400
Psychological treatment  $10,000
Physiotherapy and exercise expenses              $1,500
Total  $26,400

Future care and assistance

In addition to claiming damages to cover the cost of future services from doctors and other professionals, the plaintiff is claiming $583,968 to cover the costs of future care services. That figure is the appropriate one to compensate a plaintiff for expenditure of $660 per week over a life expectancy of 36 years, adopting the required discount rate of 5%. The figure of $660 per week represents an average of 11 hours per week at $60 per hour. This claim is based on the evidence of Ms Deidre Richards, the occupational therapist.
The future services to which this claim relates are detailed in the plaintiff's particulars of claim as follows:

"

Future Services

Hourly Rate ($)

Weekly Cost ($)

Assistance for personal care – shaving legs weekly and cutting toenails

Average 0.75 hrs per month

60.00

10.00

Assistance for meal preparation Average 0.5 hours per midweek day 2.5 hrs per week

60.00

120.00

Assistance for domestic cleaning

2 hrs per week

60.00

120.00

Assistance for bed linen change and heavy laundry

1 hr per week

60.00

60.00

Assistance for grocery shopping

1 hr per week

60.00

60.00

Assistance for transport of children

2 hrs per week

60.00

120.00

Allowance for assistance with annual cyclical cleaning tasks

1.5 hrs per month

60.00

20.00

Assistance for gardening
0.75 hrs per/mth x 6 winter months

1.50 hrs per/mth x 6 summer months

60.00

30.00

Assistance with pet/dog care tasks

1 hr per week

60.00

60.00

Total

$660.00

"

This is a remarkably unrealistic ambit claim, for a number of reasons.
First of all, the claim under this head ignores relevant provisions in the Civil Liability Act. At common law, an injured plaintiff was entitled to recover damages in respect of his or her need for services that were gratuitously provided by family members or others: Griffiths v Kerkemeyer (1977) 139 CLR 161. As a general rule, an injured plaintiff was entitled to recover the reasonable and objective value of the need for those services, measured by the market costs of such services: Van Gervan v Fenton (1992) 175 CLR 327. However the recovery of Griffiths v Kerkemeyer damages has been substantially restricted by provisions in the Civil Liability Act, particularly s 28C.
This is a motor accident case to which s 28C applies. That section reads as follows:
"An award of damages relating to personal injury to which Part III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies is not to include compensation for gratuitous services required by a person as a result of injuries to that person caused by the negligence of another person or damages for the loss by the injured person of the capacity to provide gratuitous services to another person."
The plaintiff has certainly required some domestic assistance as the result of her injuries but that assistance has been provided gratuitously by her husband, and he is likely to continue to provide it gratuitously. Because s 28C applies, the plaintiff can recover Griffiths v Kerkemeyer damages only in respect of future services that she will or might have to pay for.
Another consequence of s 28C applying is that the plaintiff is not entitled to recover damages for the loss by her of the capacity to provide gratuitous services to her children. One component of her claim relates to assistance in transporting children for two hours per week. That part of the claim must fail.
Ms Richards' figure of $60 per week is excessive. When she was cross-examined, counsel put to her that "if you were to go out and get a cleaner in greater Hobart, you'd be a mug if you paid sixty bucks an hour". I agree with that proposition, but Ms Richards did not agree with it. She said that the care costs in her report had been based on certain care schedules, and that prices vary between agencies. Counsel for the defendant tendered a document showing that an agency was willing to provide cleaning services at Austins Ferry, the suburb where the plaintiff lives, at a rate of $65 for two hours and $23 per hour thereafter.
The plaintiff may very well recover to a significant degree, and need less domestic and other assistance than she needs now. There is a chance that, because of her injuries, she will one day need to pay for domestic or other assistance if her husband ceases to provide it. That might occur if he predeceases her, leaves her, becomes incapacitated, or becomes unwilling or less willing to be helpful. Most of those possibilities are remote ones. If there does come a day when the plaintiff will have to pay for services that she currently receives gratuitously, it is quite possible that she might not be as incapacitated as she is now. Her claim is premised on the assumption that she will need the services of others for an average of 11 hours per week. The part of the claim relating to transporting children for two hours a week must be excluded. The small component relating to gardening should also be excluded. If the plaintiff is not fit to maintain a garden, she does not need to have one. Her inability to maintain a garden should be taken into account in assessing general damages for loss of amenities, but not on the basis that she would need to pay a gardener. The claim in respect of one hour of paid work per week for "pet/dog care tasks" is also problematic. If the plaintiff becomes unable to look after a pet, it would not be reasonable for her to continue to have one for the rest of her life. The remaining claims, amounting to a little under nine hours per week, appear to me to be exaggerated, even having regard to findings as to the current extent of the plaintiff's incapacity. However damages should be awarded under this head because of the possibility that the plaintiff will one day have to pay for the services of others as the result of her injuries. I think it appropriate to allow $20,000 under this head.

Miscellaneous future expenditure

On the basis of recommendations made by Ms Richards, the plaintiff is claiming $35,667 in respect of 34 items of proposed future expenditure. However that is just the start. Ms Richards has also opined as to the frequency with which these items will need to be replaced, and the plaintiff's solicitors have undertaken the appropriate calculations based on the 5% discount tables, and based on an assumption that the plaintiff will need every one of the items in question for the next 36 years. After adding the amounts claimed in respect of replacements, the total claimed in respect of equipment and the like is $76,773.68.
As to each item of expenditure, subject to any issue as to reasonableness, I should allow it in full if I am satisfied that the plaintiff will incur the expenditure, allow part if there is a chance that the plaintiff will incur the expenditure, and allow nothing if the plaintiff will not incur the expenditure.
The plaintiff has not purchased any of the items recommended by Ms Richards. The MAIB will pay for rehabilitation services and any apparatus associated with such services in the same way as it will pay for medical services: Motor Accidents (Liabilities and Compensation) Regulations 2020, Sch 1, Pt 1 cl 1(3)(i). The plaintiff's evidence was that she tried to get the Board to fund a few bits and pieces, such as a particular chair, without success. She has not acquired any of the items recommended by Ms Richards at her own expense. She said she could not afford to.
The largest component in this claim relates to bathroom and access modifications. The sum claimed is $20,000, together with another $14,660 to cover repetition of the renovations in 20 years' time. Ms Richards explained that the plaintiff, because of her size, needs to sit down when showering, that her existing shower recess is too small for her to do so, that she considers it necessary to enlarge the shower recess, and that that would require the removal of an adjacent bath. The plaintiff did not give any evidence about showering. If I award any sum in respect of bathroom renovations, there is a chance that the plaintiff will not get the bathroom renovated, and will put up with what she has got. She might not stay in her present home for the rest of her life. She might well move into a house with a very large shower recess one day. The figure of $20,000 also includes unquantified components for rear access bannister rails, easy slide door rollers for external glass sliding doors, an adjustable height hand shower, a thermostatic mixing valve, non-slip surfacing for wet areas and elevated storage areas.

The claim for $14,660 for the repetition of all renovations in 20 years' time was calculated using an incorrect multiplier. For the applicable discount rate of 5%, the cost should have been calculated as follows:
$20,000 x 0.377 = $7,540
In the light of Ms Richards' stubborn refusal to acknowledge that only a mug would pay $60 per hour for a cleaner in the greater Hobart area, I attach very little weight to her costings and recommendations. There is a chance that the plaintiff will incur some of the recommended expenditure, but I am sure she will not incur all of it, and I cannot be certain that she will accept any particular recommendations. Having regard to all the relevant uncertainties, I award $7,000 under this head.

Occupational therapy expenses

In a report dated 22 May 2020, Ms Richards opined as follows:
"Ms Scattergood requires occupational therapy services for assessment, equipment trial and prescription, establishment of care program, home modifications, activities of daily living retraining, treatment, driving assessment and review related to her 2018 MVA injuries.
Ms Scattergood requires assessment for vehicle modifications such as assistive mirrors, subject to medical clearance, off and on-road driving assessment."
The plaintiff has claimed $20,000 under this head. Her solicitors have calculated that the relevant expenditure will total $24,000 without applying any discount factors to allow for the present payment of future expenses, and have then rounded that sum down to $20,000. The figure of $24,000 was calculated as follows, on the basis of Ms Richards' evidence:

"

Occupational Therapy

Hourly Rate

Cost ($)

Assessment, equipment trial and prescription, treatment, home modifications, ADL retraining

24 hrs x Year 1

250.00

6,000.00

12 hrs x Year 2

250.00

3,000.00

Seven further reviews at five yearly intervals 7 x 8 hours

250.00

14,000.00

Driving assessment allowance including instructor fees

0.00

1,000.00

Total

24,000.00

"

It is likely, but by no means certain, that the plaintiff will make some use of the services of an occupational therapist in the next few years. I am certain that she will not spend $24,000 on those services. Doing the best I can, I estimate that the plaintiff might consult an occupational therapist about eight times, at a cost of $250 per consultation. I award $2,000 under this head.

Pain and suffering and loss of amenities

Section 28 of the Civil Liability Act provides as follows:
"(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions.
(3) In this section –
other courts includes a court of any jurisdiction within Australia, including Tasmania."
Counsel referred me to some earlier decisions of this Court in which damages were awarded for non-economic loss, but not any decisions from courts in other Australian jurisdictions. Before the enactment of s 28, courts assessing damages for non-economic loss were required to "be aware of and give weight to current general ideas of fairness and moderation": Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125. Section 28 does not preclude me from giving weight to current general ideas of fairness and moderation as reflected in awards by courts in other Australian jurisdictions. As I have said before, it was well known that awards of damages for non-economic loss were for many years significantly lower in Tasmania than in most, if not all, mainland jurisdictions, but there is no reason why that should any longer be so: Mercer v Allianz Australia Insurance Ltd (No 2) [2013] TASSC 35 at [120]; ZAB v ZWM [2021] TASSC 64 at [122].
I need not repeat all that I have said as to the plaintiff's injuries and their impact. She has been disabled to a significant extent for over four years, and will never fully recover. I award $100,000 under this head.

Interest

The Court has a discretion to award pre-judgment interest pursuant to s 35A of the Supreme Court Civil Procedure Act 1932. That section did not commence until 9 September 2019, but it expressly provides for interest to be awarded "for the whole or any part of the period commencing on the day after the day on which the cause of action arose and ending on the day on which the judgment is entered". It therefore operates retrospectively.
One of the purposes of the power to award pre-judgment interest is to compensate a plaintiff for being kept out of monies that the plaintiff was entitled to receive, or reasonably expected to receive. However in this case the plaintiff's loss of past earnings was largely compensated for by the payment of a disability allowance by the MAIB. Some award should be made in relation to the loss of past superannuation contributions. I award $700 in respect of them.
Section 5A gives me a power to award interest in respect of the damages awarded for non-economic harm. Interest on such damages is not to be assessed at a commercial rate because the detriment suffered by the plaintiff is not to be equated with the amount which those damages would have earned during the pre-trial period if invested at a commercial rate of interest: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. I consider that a modest award of interest in respect of the damages for non-economic harm is appropriate. For the purpose of assessing interest, I will regard $20,000 of the award of $100,000 as referable to the period from the February 2018 accident to the date of this judgment. That is a period of a little over four years. I think it appropriate to award a total of 4% of $20,000 by way of interest in respect of the period since the accident. I assess the interest on the award of damages for non-economic harm in the sum of $800. The total awarded under s 35A is therefore $1,500.

Conclusion

For the reasons stated, the amounts awarded to the plaintiff are as follows:
Pain and suffering and loss amenities                 $100,000
Past economic loss  $245,614
Fox v Wood damages  $21,344
Future economic loss  $606,400
Superannuation contributions  $117,667
Future medical and pharmaceutical expenses        $26,400
Future care and assistance  $20,000
Miscellaneous future expenditure  $7,000
Occupational therapy expenses  $2,000
Interest  $1,500
$1,147,925
Less disability allowance payments  $159,666
Total  $988,259
I order that judgment be entered for the plaintiff against the defendant for the sum of $988,259.

Earnings from 1 February 2018 to 13 April 2022 (219 weeks at $1,191 per week).	$260,829
Less actual earnings	$15,215
Lost earnings	$245,614

Year	MAIB payments	Income tax	Medicare levy	Total payable
2017/18	$1,523.42	$274.22
2018/19	$46,932.87	$6,800.18	$938.65	$7,738.93
2019/20	$39,608.92	$4,419.60	$792.18	$5,211.78
2020/21	$39,608.92	$4,067.52	$792.18	$4,859.70
2021/22	$31,991.82	$2,620.29	$639.84	$3,260.13
Total	$21,344.76

"	Future Services	Hourly Rate ($)	Weekly Cost ($)
Assistance for personal care – shaving legs weekly and cutting toenails Average 0.75 hrs per month	60.00	10.00
Assistance for meal preparation Average 0.5 hours per midweek day 2.5 hrs per week	60.00	120.00
Assistance for domestic cleaning 2 hrs per week	60.00	120.00
Assistance for bed linen change and heavy laundry 1 hr per week	60.00	60.00
Assistance for grocery shopping 1 hr per week	60.00	60.00
Assistance for transport of children 2 hrs per week	60.00	120.00
Allowance for assistance with annual cyclical cleaning tasks 1.5 hrs per month	60.00	20.00
Assistance for gardening 0.75 hrs per/mth x 6 winter months 1.50 hrs per/mth x 6 summer months	60.00	30.00
Assistance with pet/dog care tasks 1 hr per week	60.00	60.00
Total	$660.00	"

"	Occupational Therapy	Hourly Rate	Cost ($)
Assessment, equipment trial and prescription, treatment, home modifications, ADL retraining 24 hrs x Year 1	250.00	6,000.00
12 hrs x Year 2	250.00	3,000.00
Seven further reviews at five yearly intervals 7 x 8 hours	250.00	14,000.00
Driving assessment allowance including instructor fees	0.00	1,000.00
Total	24,000.00	"