Seary v White (No 4)
[2008] NSWDC 20
•8 February 2008
CITATION: Seary v White (No 4) [2008] NSWDC 20
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 18, 19, 20, 21, 22 June, 23, 24 August, and 14, 15, 16 November 2007
JUDGMENT DATE:
8 February 2008JURISDICTION: Civil Jurisdiction JUDGMENT OF: Johnstone DCJ at 1 DECISION: Verdict and judgment for the plaintiff for $569,912.00 CATCHWORDS: DAMAGES - whether the plaintiff sustained any significant cognitive deficits that result from an irreversible traumatic brain injury caused by a motor accident - conflicting neurological evidence - conflicting psychological evidence as to the results of psychometric testing - MAS certificates not probative of causation - consideration of the nature, effect and duration of a psychological condition caused by the motor accident - economic loss - no direct evidence of probable earnings - evaluation of the worth of a loss of capacity to earn LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 128, s 131 CASES CITED: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347
Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607
Jones v Schiffman [1971] HCA 52
Linsell v Robson [1976] 1 NSWLR 249 at 259
Mafra v Egan (No 1) (2006) NSWDC 22
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639
Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 566
Pham v Shui [2006] NSWCA 373 at [90]
Qantas Airways Ltd v Lisica [2007] NSWCA 371
State of NSW v Moss [2000] NSWCA 133 at [71]TEXTS CITED: Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18], PARTIES: Elizabeth Anne Seary (Plaintiff)
Glen White (Defendant)FILE NUMBER(S): 4757/06 COUNSEL: Mr P Webb SC and Mr Sewell (Plaintiff)
Mr K Rewell SC (Defendant:)SOLICITORS: Wyatt Attorneys (Plaintiff)
TL Lawyers (Defendant:)
JUDGMENT
Introduction
1. Elizabeth Seary was injured in a motor accident on 13 November 2002, and commenced these proceedings against the defendant alleging negligence. Breach of duty was admitted and the dispute before me is limited to the assessment of damages. Mrs Seary claimed that as a result of the accident she sustained permanent injury to the brain, orthopaedic injuries to her neck and back, and a secondary psychological condition. The defendant disputed the extent and effect of her injuries, and in particular denied that she suffered a traumatic brain injury resulting in any cognitive deficits.
2. The principal issues for determination in relation to Mrs Seary were:
· Whether she has any significant cognitive deficits that result from an irreversible traumatic brain
injury caused by the motor accident.
· The nature, extent and effect of her orthopaedic and other physical disabilities.
· The nature, extent and effect of her psychological condition.
· The extent of any lost earning capacity.
· The extent of any need for domestic care.
· The extent of her non-economic loss.
· An appropriate award of damages.
History
3. Elizabeth Seary was born on 21 January 1973. She was 29 at the time of the motor accident and is now 35. She had a normal, unremarkable childhood, growing up in southern Sydney, living with her parents and sisters, she being the middle daughter of three. She described herself as an average student at school, who related well to her peers, if not her teachers. She left school in 1988 after completing Year 10.
4. As a teenager and young woman she was a bright and cheerful person. Her mother described her as outgoing, happy and talkative, if slightly rebellious, having occasional ‘issues’ with teachers. Her older sister, Jennifer, described her as bright, chatty and opinionated. Her old schoolfriend, Stephanie Oud, described her as outgoing, confident, friendly and quick-witted, and as someone who was ‘with- it’ and ‘on the go’. Her mother-in-law, Mrs Bringolf, knew her from the age of 14. Mrs Bringolf is someone who has worked extensively with disabled people. She described Mrs Seary as bubbly, full of life, and very creative. Her partner, Darrell Bringolf described her as confident, active, outgoing and chatty. Her sister-in-law, Jenette, described her as bright, giggly, uncomplicated and easy going.
5. Mrs Seary met her partner, Darrell Bringolf, when she was 18. They went out together and then started living together in 1992, at his grandmother’s house and later in a house of their own. They have been together ever since, and now have a family with two children, Matthew and Jessica.
6. She worked in various jobs after leaving school, until mid 1990, when she started but did not finish a TAFE course. From 1991 she worked more or less continuously until the birth of her first child, Matthew, in July 1996, at the age of 23. She then had a year away from work caring for the baby. It appears that she underwent a period of post-natal depression. She resumed working on a part-time basis in June 1997, and continued working for nearly two years until the birth of her second child, Jessica, in April 1999. She had a short period of maternity leave and resumed working for some 9 months, juggling work and parental responsibilities. But it all proved too much and in May 2000 she stopped working, and spent the next 18 months at home with her children. She again suffered from post-natal depression for a period. In November 2001 she attempted to re-enter the workforce as a night-packer at Woolworth’s. She stuck at this for 9 months but it proved too difficult, and from May 2002 she was not involved in any paid employment. But she did engage significantly in activities associated with the Menai Primary School, Matthew’s school.
7. Her involvement in activities at the Menai Primary School from May 2002 became quite extensive. She did reading work, English tutoring for Year 3 children, and had some involvement in the P &C. She also took over the job of managing the school uniform shop, involving one or two days a week, which she reportedly did efficiently and without any difficulties.
8. The family lived comfortably from Mr Bringolf’s wages, but the finances needed to be watched closely. Their social life revolved around her family and her husband’s family, birthdays, Christmas and the like. They occasionally had people over or went out, but not often due to the age of the children, and because they did not have the money for restaurants or baby-sitters and the like.
9. Mrs Seary was not actively looking for work, but she said that if something had come along that fitted conveniently with her other responsibilities she would have taken it, as it was their ambition to own their own home, and her intention to eventually resume working, once the children were older. Her plan was to work two days a week once Jessica was four, and in kindergarten, then when Jessica started at school, to look for full-time work, perhaps doing the sort of registration work she had first done after school, or teaching.
10. Prior to the accident, Mrs Seary managed all the family finances, attending to the budgeting and payment of bills. Her husband’s wages were paid directly into an account in her name, which was operated solely by her. She used a home computer on which she was quite proficient, and where she kept all the records.
The accident on 13 November 2002 and subsequent hospitalisation
11. Mrs Seary has no independent recollection of the accident on 13 November 2002; however there is no dispute as to the circumstances. She had parked her car in the street outside the Menai Primary School, where she was collecting Matthew after school. At about 3.30pm she was standing at the driver’s door of her car as the defendant’s truck, a removalist van, was passing, when suddenly the rear door of the van swung open and struck her, knocking her to the ground.
12. She was unconscious for about two minutes, but then regained consciousness. A medically trained bystander attended to her and an ambulance was called. When ambulance officers arrived some 18 minutes later, she was fully conscious, and her Glasgow Coma Score was 14/15. They observed swelling to the occipital skull and a 4cm laceration to her forehead. There were also multiple abrasions to her back and left shoulder. A neck brace and backboard were applied and she was taken to the St George Hospital. By 4.45pm she was alert and her Glasgow Coma Score was a maximal 15/15. She was not complaining of neck pain. Her multiple abrasions were attended to and the wounds at the back of her head and over her left eye were cleaned and dressed. Various tests were undertaken. These included a CAT scan of the cervical spine that showed no abnormalities, and a cerebral CT scan, the report from which recorded:
“ There appears to be a very shallow surface collection overlying the right parietal region. There could be a tiny underlying contusion. There is no other evidence of any intracranial blood. No fracture of the cranial vault is seen.”
13. She was diagnosed with concussion and kept at hospital for four hours under observation before being allowed to go home, for review by her local doctor.
14. Mrs Seary came under the care of her local general practitioner, Dr Komonen, who she saw on Friday 15 November 2002. His examination on that day revealed ‘no distress’, and that her neck and upper limbs were normal apart from some pain in the left shoulder that he later ascribed to a spasm in the trapezius muscle.
15. Over the next few days her headaches worsened and she began to experience dizziness and a ringing in the right ear. On Wednesday 20 November 2002 her mother-in-law took her back to the emergency department of the hospital after she had been found lying on the floor at home, crying. The intern who attended to her found nothing wrong, but organised a further precautionary head CT scan. This also turned out to be completely normal.
The initial post-hospital history
16. Dr Komonen continued to supervise Mrs Seary’s post-accident care, and he saw her regularly over the rest of December 2002 and on 3 January 2003. According to Dr Komonen, it was not until 20 January 2003 when she saw Dr Michelle Driessen, another doctor from the practice, that she made any complaint of dizziness. Dr Driessen immediately referred her to an ENT specialist, Dr Becvarovski, who saw her the next day. The ENT specialist diagnosed left benign paroxysmal positional vertigo, as to which he anticipated a ‘positive outcome’. He performed a ‘particle repositioning manoeuvre’, provided her with an information sheet and appropriate ‘post-manoeuvre’ instructions. There was a follow-up visit on 3 March 2003 when she was reported as having been asymptomatic for the previous two weeks. An examination revealed nothing abnormal, and her hearing was normal. Dr Becvarovski nevertheless ordered an MRI scan of the brain and blood tests. The MRI turned out to be within normal limits and an MRA of her cerebral vascalature was also normal. Dr Becvarovski next saw Mrs Seary on 20 May 2003. Her vertigo had resolved but there was some remaining mild dysequilibrium, which he related to the development of chicken pox. However, when he saw her again on 27 June 2003, the vertigo had returned, associated with a mild headache. He performed the Epley manoeuvre again that day and again on 16 July 2003. The initial response was again positive. However, her vertigo returned in 2004, when in April Dr Becvarovski referred her, for a ‘senior opinion’, to Dr John Tonkin and to Dr Phillip Chang. Mrs Seary, however, failed to consult those doctors, and did not return to Dr Becvarovski.
17. In the meantime Dr Komonen was sufficiently concerned by Mrs Seary’s complaints of headache, light-headedness, intermittent dizziness, memory disturbance, and of neck pain that was persisting notwithstanding physiotherapy, that in mid 2003 he referred her for neurological and psychological assessment involving neuropsychometric evaluation.
18. At home she had become withdrawn and listless, vague and forgetful, and on many occasions ‘not quite there’. She was moody and irritable. She tired easily and slept a lot, particularly in the afternoons. She was unable to concentrate and found using the computer difficult, forgetting passwords, locking herself out of programs and generally not coping. She was making mistakes, forgetting to pay bills and the like. Often the shopping and other chores did not get done. Mr Bringolf initially put it down to her not being well, but when she continued making mistakes he eventually had to take away her credit card. He involved himself directly in the family finances, reorganised the home computer for payment of accounts and took control of the family shopping and daily routine.
19. There had been other episodes of concern, including Mrs Seary attending appointments at the wrong time, getting lost, and arriving late for soccer matches. On one occasion, Mrs Bringolf received a telephone call from the school that no one had collected the children. She went to the house but Mrs Seary was missing She was eventually found around the corner in her parked car. There were also problems at the school uniform shop, where Mrs Seary was making mistakes, arriving late and not keeping the operation running smoothly as before. The situation at the school became sufficiently bad that a group of mothers from the P&C was driven to form a committee that then confronted Mrs Seary and forced her resignation from the uniform shop.
20. A neurologist, Dr Dennis Cordato, saw Mrs Seary on 12 June 2003, but found no focal neurological signs. He diagnosed a mild head injury with a superimposed concussion syndrome and said ‘she still has clinically and subjectively not fully recovered’. He ordered an EEG owing to her complaints of lapses in concentration, but this proved normal. In his next report he put her memory problems down to the post concussion syndrome and ‘probably a super-imposed post-traumatic stress disorder’ for which he agreed she should continue with counselling. He noted other symptoms of occipital scalp pain ‘referred from her neck’ for which he performed bilateral greater occipital nerve blocks, involving injections of Marcaine, in August. This treatment produced benefits for just over a week then the pain returned. Nevertheless he gave her another dose in September, and this time the benefits lasted two to three weeks. He repeated the treatment in November but when these again proved ineffective he discontinued that form of treatment. So he recommended physiotherapy, to control her symptoms, and ‘supplementation of a pain modifying agent’. He gave her Neurontin to take and ordered an MRI of the cervical spine, which also proved normal. He saw her again in February 2004, and now thought there might be ‘occipital neuralgia’ in the scalp region itself. He recommended a ‘multimodal approach’ to control her symptoms and suggested she trial hydrotherapy, with acupuncture to the occipital scalp region. She ‘chickened out’ of the acupuncture. When the insurance company would not approve continued use of Neurontin, Dr Cordato started to trial Tegretol in its place, in April 2004. She responded badly to this drug and stopped using it, but still continued to see Dr Cordato. In November 2004 he decided to stop using drug therapies, and wanted to start Botox therapy and sent her off to see a colleague, Dr Con Yiannikis for an opinion. The evidence does not disclose whether she saw Dr Yiannikis. She did, however, stop seeing Dr Cordato.
21. It is clear to me that the involvement of Dr Cordato proved to be a complete waste of time and money. His evidence as to any diagnosis has not the slightest probative value, and the usefulness of his treatment of Mrs Seary most questionable. This saga, however, is another piece of history that reinforced the views I formed, to which I will come, as to the more probable cause of Mrs Seary’s problems.
22. At about the same time as she was referred to Dr Cordato in mid 2003, Mrs Seary had also been referred to a clinical psychologist, Mr Chris Lloyd. He saw Mrs Seary on 15 May and 3 June 2003 and administered psychometric tests. He also referred her to Mr Michael McMahon, another clinical psychologist, for neuropsychological testing. Mr Lloyd initially diagnosed a post-traumatic stress disorder with depression and anxiety. He also thought there was some impairment to her cognitive function due to her memory problems, but deferred formulating any strategy to assist until the specific deficits were identified by Mr McMahon’s neuropsychological report (see Exhibit A at pages 113 and 132). After receiving Mr McMahon’s neuropsychological report and discussing it with him in September 2003, he moved away from this assessment and limited his diagnosis to a continuing psychological condition (page 120). However, he continued to see Mrs Seary, and had some 60 consultations with her between May 2003 and 16 June 2005, when for reasons he does not explain starts referring to a brain injury (page 132). He does make a reference to reports by Dr Teychenné, which might perhaps be the source of his views in that regard (page 143).
23. Mr Lloyd’s reports are long, rambling and repetitive and involve very little of objective diagnostic value. A reading of his reports indicates that much of his treatment amounted to little more than handholding and reassurance, all of which seems to have been of little ultimate benefit to Mrs Seary. There is in his material a poignant letter from Mrs Seary dated 3 September 2004 that is illustrative of their interaction, and gives further insights into her mental state (page 126):
“ Dear Chris,
Where do I start? It has taken me since 24 Aug to complete this letter to you. Darrel, Joanne (my neighbour) and my Dr have all bugged me about seeing you for some weeks now. For some reason I can’t seem to so I opted for this letter. I seem to be losing faith in my recovery or that any of my anxieties will go away. They are worse if anything. Maybe I can get some help through this letter. I’ll try as best I can to be as clear as I can but if I wander bare (sic) with me please.
Firstly the anxiety about the trucks has worsened, I think starting a few weeks back when I had to pull over to fix my wipers on the car a truck drove past as I was doing this and I “fliped out” (sic), lucky my mum was there to help me calm down. Also there is a truck that drives around local that does not use his safety chain, every time I see him I freeze. Literally! I can’t move no matter how much I will myself, until he is long out of sight. He delivers to the school so I asked Sue, she runs the canteen, to have a word with him. Don’t know if this will help but it’s a start.
Then there is school. I have been doing less and less there maybe because of the truck maybe something else I don’t know. I am avoiding Dr’s appointments and tests and even phone calls are hard.
I’m sick of being confussed (sic) and scared! I have improved some since I first started writing this as my mum came to help out for a few days but I’m still reluctant to go further than the local shop. I have gone to Miranda a few times but only alone and for a purpose, and they had me shaking the whole way there.
Please help.
Elizabeth Seary ”
24. Mr Michael McMahon, a clinical psychologist, was asked by Mr Lloyd to carry out a neuropsychological assessment on Mrs Seary, which he carried out over three consultations on 18, 23 and 27 June, and sent a report dated 24 August 2003. (Exhibit A at page166ff). The defendant placed much weight on this report, and counsel for Mrs Seary was correspondingly critical of it. On the basis of his testing and observations of Mrs Seary, Mr McMahon noted inconsistent and variable results. He rejected the notion of cognitive deficits attributable to her head injury and squarely attributed her symptoms to non-organic factors, and recommended psychological therapy. He expressed his opinion thus:
“It is my opinion that Mrs Seary has not suffered any global intellectual decline as a result of her head injury on 13 November 2002. Although she demonstrates inferior verbal learning skills (relative to her ability to learn and retain visual information) and ‘working’ memory deficits, performance variability suggests that non-organic factors are more likely to be the cause and that further psychological therapy should lead to improvements. Should expected gains in cognitive functioning not concur with lowered levels of depression and anxiety then reassessment in 9-to-12 months time is recommended to better determine causation.”
25. There seems little doubt that Mrs Seary changed dramatically and significantly following her accident, particularly during the first half of 2003. There was considerable evidence from her family and friends as to the extent to which her personality changed and as to the many and various problems and difficulties that confronted her during the early years following her accident, which I do not propose to review in detail here. Suffice it to say that, at least for that period, all those who came into contact with her, both lay and professional people, unreservedly accepted her as genuinely suffering from a debilitating condition, the effects of which were multi-dimensional and far-reaching. She clearly underwent a period of considerable adversity, as to which she did not appear to obtain much professional utilitarian assistance. Equally clearly, on my view of the evidence, there has been gradual but steady improvement from then on till the present.
26. What is less clear is the cause and extent of her problems, and the prognosis for the future.
The subsequent specialist medico-legal evidence
27. The evidence established overwhelmingly that the conventional criteria for diagnosis of a traumatic brain injury include:
· Radiological evidence of structural damage to the brain.
· A clinically significant period of retrograde or post-traumatic amnesia.
· A clinically significant period of reduced consciousness, as to which the Glasgow Coma
Scale is the usual measure.
· Consistent abnormalities revealed by neuropsychometric testing.
28. Only Dr Teychenné seemed to spurn these diagnostic techniques as appropriate, and I will come to his evidence in due course.
29. It was also generally accepted by the medico-legal experts that according to conventional medical wisdom, an adult who suffers a traumatic brain injury will effect maximal recovery during the first 12 months after injury, and further recovery is not to be expected after two years (T 497.39ff).
30. The substantive dispute in this case related to the last of these criteria, namely whether the neuropsychometric testing was demonstrative of genuine cognitive deficits or not, there being insufficient evidence to satisfy anyone, other than perhaps Dr Teychenné, that a positive diagnosis could be derived having regard to the first three criteria. It was well established that Mrs Seary was unconscious for a few minutes at most, which all the doctors, other than Dr Teychenné regarded as insignificant. The Glasgow Coma scores taken by the ambulance officers and upon admission to the hospital were normal. Nor was there any evidence of a clinically significant period of either pre-traumatic or post-traumatic amnesia. The only evidence of any radiological abnormality was the reference in the CT scan taken at the hospital hours after the accident to the ‘very shallow surface collection’ overlying the right parietal region and the possibility of a tiny underlying contusion. It was clear that no one would diagnose that of itself as evidence of a significant brain injury, but in any event all subsequent tests carried out on Mrs Seary in relation to the brain were normal, and no abnormalities were ever evident.
31. It was also generally accepted by the medical experts that MRI is extremely sensitive in picking up small contusions or haemorrhages in the brain that can be seen after head injuries, usually those of a moderate to severe degree. But it is possible for microscopic injury to occur that cannot be radiologically detected, although such a situation is rare (Dr O’Neill at T 486.24).
32. Thus, in the absence of detectable physiological or organic brain impairment, diagnosis of the aetiology of symptoms is undertaken as an exercise of clinical judgment, based on experience, expertise, assisted by the evaluation of such evidence as there is available, including the results of neuropsychometric testing (T 221.42 - 3, 231.48 - 51).
33. Another known and accepted phenomenon is that once the initial trauma to the brain has settled the only trauma-related progress that can occur is positive progress and a person’s cognitive capacity will improve, not deteriorate, over time (T 173.13ff). Thus, according to the literature, most patients with mild head injuries recover within weeks or months without specific intervention, but a percentage continue to have disabling symptoms. However, only improvement can be expected, not deterioration, so that if a patient’s performance under psychometric testing in fact becomes worse, one would look to other factors to explain the lack of improvement, such as anxiety, depression or demotivation (T 173.28ff).
34. Any suggestion, however, that neuropsychometric testing can objectively evaluate the effects of any brain injury from a closed head trauma, would need to be treated with suspicion in the context of the evidence presented in this case. An extract from the article by Michael P Alexander (Exhibit G), which became a focus in these proceedings, sums up my point (at page 6):
“Because the cognitive symptoms are similar to those of the early neurologic disorder…and because they seem to flow seamlessly from the point of injury, many clinicians also assume that they must be neurologically based. When patients are sent for neuropsychological evaluation, the problem may be compounded. Not surprisingly, when patients who complain of poor concentration and memory are tested, their concentration and memory are impaired. Furthermore, they perform badly on complex executive tasks. The critical point is that these complaints, and even the neuropsychological findings, have no diagnostic specificity. They are equally compatible with diagnoses of depression, anxiety and chronic pain. Avoid the logical fallacy: because everyone with a TBI (traumatic brain injury) from closed head injury has impaired concentration, it does not mean that in everyone with impaired concentration after closed head injury the cause is neurologic.”
Earlier in the article, he wrote:
“The point at which physiogenesis becomes psychogenesis is hard to establish and may be partly iatrogenic.”
35. The medico-legal diagnostic debate that played out before me in this trial on this issue had Dr Teychenné, Dr Rowe and Mr Anthony arrayed in the plaintiff’s camp, against Dr O’Neill, Associate Professor Reid and Mr McMahon in the defendant’s camp.
36. Mr Anthony, a clinical psychologist recommended by Dr Teychenné, saw Mrs Seary on 3 March 2005, took a history and performed psychometric testing.
37. Mr Anthony did not give oral evidence, but his report of 11 March 2005 formed part of Exhibit A (at page 277). Whilst Mrs Seary’s reasoning ability appeared to be intact, he found a number of ‘significant cognitive defects’ consistent with organic brain damage. He went on to criticise Mr McMahon’s report, saying that the main tests he used were long outdated. He did not, however, suggest his results were in any way inaccurate, only that the results were misinterpreted. He in fact noted that the results of testing for intelligence and memory testing obtained by Mr McMahon were similar to his own. Contrary to the view of Mr McMahon that her performance at the 3rd percentile for verbal memory, placing her in the bottom 3% of the population, was most likely due to ‘non-organic factors’ in the view of Mr Anthony, it was ‘highly indicative of organic brain damage’. Notwithstanding Mr McMahon’s view, Mr Anthony failed to administer any of the standard reliability tests designed to detect lack of effort, or ‘malingering’. The validity of his results cannot therefore be assumed. He simply dismissed her psychological problems as emotional, a result of ‘some nervous disposition’, merely a reaction to her physical injuries and cognitive impairments that ‘could not account for the nature and severity of cognitive deficits found in assessment’. Apart from minimising her psychological condition, this opinion is at odds with the other expert evidence and literature tendered. In the result I found Mr Anthony’s evidence unreliable and partisan and I was unable to accept it.
38. In 2006 the defendant qualified an expert in the field of neuropsychological assessment, Associate Professor Reid, a clinical neuropsychologist. He provided a number of reports and also gave oral evidence. He interviewed Mrs Seary and made a neuropsychological assessment on 11 April 2006. At that time he had the reports of Mr Lloyd, Mr McMahon and Mr Anthony but Dr Rowe had not yet become involved. He also had reports from Dr Teychenné and Dr O’Neill. On examination, Mrs Seary was very hesitant and behaved in a somewhat histrionic manner with what Dr Reid described as exaggerated expression of pain and discomfort. He felt that the validity of formal neuropsychological assessment was highly questionable and focussed on assessing her motivation, test taking attitudes and psychological state. The test for suboptimal motivation revealed her as not performing to the best of her ability. Dr Reid formed the view she was exaggerating her symptoms, and her problems were psychological in nature.
39. Dr Reid carried out a second assessment of Mrs Seary on 3 August 2006 and he again found a maligned performance in the motivational tests. He considered the evidence of exaggeration was compelling, to a degree where he could now state she was malingering her neurocognitive problems.
40. Dr Rowe, a clinical neurophysiologist and consulting psychologist, was then qualified on behalf of Mrs Seary. He also provided various reports and was called to give extensive oral evidence. He performed various tests on 17 November 2006. He first undertook neuropsychological testing. This was performed in unconventional circumstances involving the use of a computerised and automated format, devised by the Brain Resource Company (BRC), a company with which Dr Rowe is involved. Testing is performed by placing the examinee in a sound-deadened room with a touch screen into which answers are entered on screen. Rather than conduct a face-to-face examination, the examiner watches by means of a one-way mirror or a closed circuit television camera, and communicates via an intercom system.
41. After administering neuropsychological tests and interviewing Mrs Seary and Mr Bringolf, Dr Rowe proceeded to administer certain psychophysiological tests involving the use of EEG, designed to measure electrical activity in the brain. This process involves comparing the individual’s results to a normative database kept by the Brain Resource Company. This method was said to examine functional brain topography by utilising spatial measures of baseline cortical activity and information processing activity.
42. Dr Rowe concluded:
“Mrs Seary’s presentation and objective psychophysiological and neuropsychological deficits, identified by comparison with a large normative database, are consistent with a diagnosis of traumatic brain injury and persisting organic damage that has not resolved…
Although, some of Mrs Seary’s neuropsychological and psychophysiological findings are not necessarily unique to traumatic brain injury, her symptoms, history, differential diagnoses, and by a process of elimination other diagnoses can be ruled out.”
He went on to specifically exclude her psychological state as accounting for her neuropsychological
and psychophysiological abnormalities.
He also went on to say that her persisting injury can be characterised by organic damage to the structure
and the function of the brain and concluded:
“By definition, loss of consciousness and post concussive symptoms as reported, in addition to indications of possible parietal contusion, suggests organic processes and damage to the structure and function of neurons…”
43. I will return to Dr Rowe’s views later, but in the meantime I record that his use of EEG in conjunction with neuropsychometric testing was dismissed by all the other experts as unproven as a diagnostic aid, and not in conventional use, clinically, anywhere else in Australia. Dr Teychenné went so far as to describe it as crude. Whilst there was some documentary support for the technique, I could not be satisfied that the use of EEG had some advantage over the traditional pencil and paper techniques such as to render it somehow more objectively reliable.
44. In his first report of 24 November 2006, Dr Rowe noted that he had been given a copy of Dr Reid’s report of 3 August 2006, as to which he made little comment. (It appears he was not given Dr Reid’s earlier reports of 8 May and 12 June 2006, nor was he given Mr Anthony’s report of 11 March 2005). However, he wrote a report on 14 June 2007 in which he made a studied attack on Dr Reid’s reports and his opinion that Mrs Seary was malingering. He then went on a long apologetic excursion in an attempt to explain away the inconsistent results obtained by Dr Reid.
45. There followed further reports and much oral evidence with each doctor defending his position and attacking the other, a detailed analysis of which is not in my view warranted in these reasons, but to the substance of which I will return later. I will content myself for the moment in observing that I found both these witnesses irritating and poor advertisements for their field of specialty. I regarded Dr Reid, however, as far more objective and practical in his approach, whereas Dr Rowe was more the academic, and an advocate rather than an impassive expert.
46. I turn now to the opinions of the neurologists qualified by the two parties: Dr Teychenné and Dr O’Neill.
47. Dr Teychenné has been a consultant neurologist for some thirty years with impressive qualifications and experience. Following an interview with Mrs Seary in January 2005 at the request of her solicitors, he wrote to them on 17 January 2005 saying (Exhibit A at page 196):
“It is apparent on my assessment of the patient that she has had significant traumatic brain injury with cognitive deficits. I would disagree with the reports that you have forwarded to me where they appear to indicate that she had not had a significant brain injury. It is apparent on my assessment that she has had a significant brain injury. I did not see any reports of the psychometric testing which was apparently normal. I would recommend that she have further psychometric testing particularly detailed testing of her memory function and detailed testing for an executive frontal lobe deficit. I would recommend Mr Anthony at Haberfield as a Psychologist who does quite thorough and detailed accurate assessments of cognitive function after traumatic brain injuries.”
I formed a different view about Mr Anthony. I also noted with interest that Dr Teychenné came very quickly to a diagnosis without the benefit of any psychometric testing. Indeed he dismissed the testing as “probably not accurate” without even seeing it (page 201), because it did not fit with his view.
48. In a report of the same date (page 197ff) he referred to the contentious article by Michael P Alexander (Exhibit G), and recorded (page 198):
“In the 15% of mild traumatic brain injury patients who have not recovered they had a persistence of troubling symptoms such as headache, neck pain, dizziness and a risk of permanent, symptomatic, persistent, post-concussive syndrome symptoms, such as dizziness, headache, impaired attention, poor memory and reduced executive functions. They may be irritable, depressed and nervous. The pathophysiology of traumatic brain injury is diffuse axonal injury caused by shearing forces generated in the brain by sudden deceleration. The shearing forces disrupt fragile structures running within the long axis of the brain, primarily axons and small vessels. Axonal injury causes localised transport failures in the axon leading to swelling and often lysis of the axon with Wallerin degeneration.”
49. It was clear to me that what Dr Teychenné did was form his view based solely on the history, which fitted nicely into the 15% category of patients who display persistent symptoms post-concussively, but who do not satisfy the conventional criteria for diagnosis of a traumatic brain injury. In so doing he fell into the logical fallacy against which Michael P Alexander warned in his article. The defendant’s written submissions put it this way (at paragraph 24): “At its highest, Dr Teychenné's evidence might be read as a statement of opinion that a mild traumatic brain injury may occur without satisfying any of the conventional medical criteria.” The reference by Dr Teychenné to ‘diffuse axonal injury’, however, raised an issue that assumed considerable importance at the trial, in the sense that it led to a whole body of expert evidence, written and oral, being presented to address the suggestion. Dr Teychenné went on in the report to enlarge on the concept of diffuse axonal injury, and explain why it was not detectable by conventional means:
“I suspect that the areas of diffuse axonal injury would be microscopic and thus would probably not be seen on MRI scan of the brain unless the areas were large enough to be picked up…” (page 200).
“I note that she underwent a MRI scan of the brain which did not show any abnormality. This only indicates that any diffuse axonal injury sustained by the patient was microscopic. It was apparent on my assessment of the patient that she did have a traumatic brain injury and had most likely sustained diffuse axonal injury, that is microscopic shear injuries which were too small to be picked up on MRI Scan of the brain…” (page 201).
50. Not unexpectedly, once Mr Anthony’s psychometric report of 11 March 2005 came to hand, Dr Teychenné agreed with it (page 210).
51. I come, then, to Dr O’Neill, another eminent consultant neurologist with extensive experience and impressive credentials. He first provided a medico-legal report on 1 August 2005 following his examination of Mrs Seary (Exhibit 3). He carefully reviewed the documentary material, including the ambulance report, the hospital notes, and the reports of Dr Komonen, Dr Becvarovski, Dr Cordato, and Mr McMahon. He came to the conclusion that Mrs Seary had not suffered any permanent impairment of the brain. He explained (at page 4 of the report):
“Certainly the mild closed head injury as described was of enough severity to result in post-concussive symptoms and these were initially present in the form of headache, drowsiness, tinnitus and a relatively prolonged post-traumatic benign paroxysmal positional vertigo. Ultimately, however, the vertigo settled and Hallpike’s testing was negative at the time of my examination. An audiogram was normal on 3.3.2003.
I can find no physical cause for the persisting complaints of headache, non-specific episodic dizziness and memory impairment and I believe there is a major psychosomatic component to continuing symptoms.
It seems neck, left arm and left leg complaints were delayed for quite some time after the accident. Indeed Dr Komonen stated that “neck examination was normal” on 15.11.2002. At examination today Mrs Seary had no evidence of neurological dysfunction arising from the cervical spine and nor would this be expected from her radiological studies wherein X rays of the cervical spine (13.11.2002), MRI of the cervical spine (16/2/04) and Nuclear Bone Scan (21.10.04) were all normal.
In short, I can find no physical cause for the continuing complaints which Mrs Seary relates to the accident of 13.11.2002.”
Consistent with the iatrogenic theme of Michael P Alexander, which Dr O’Neill labelled ‘maladaption’
(T 575. 29ff), he went on to say:
“I believe the most important aspect of future treatment is for her treating doctors to explain that neither the nature of the injury nor the investigations provide any support that there could be any physical basis for continuing symptoms and that if she could accept this then those symptoms should eventually settle spontaneously.”
Having regard to the views I formed when reading some of the treating doctors’ medical reports, in
particular those of Dr Cordato and Mr Lloyd, this view struck a chord.
52. Dr O’Neill therefore concluded that at that time the negative psychosomatic factors were considerable and the prognosis was correspondingly poor.
53. When Dr O’Neill provided his second report of 15 August 2007, he also had before him reports from Dr Teychenné, Mr Anthony, Dr Rowe and Dr Reid. None of this additional material caused him to change the conclusions expressed in his original report. He said (at page 4):
“In short, as indicated above, I totally disagree with Dr Teychenne in his speculation that “Mrs Seary has significant brain damage”.
I thought it was interesting that on the one hand Dr Teychenne felt Mrs Seary had severe
memory deficits and yet he accepted as fact that, in 2005, she was able to recall firstly
(in the 2005 report) pain behind the left shoulder and numbness in the left fifth finger
and medical aspect of the fourth finger “in the immediate period after the accident” and,
secondly (in the 2007 report), that pain had been present in the back and left thigh from
“two months after the accident”. In fact, of course, there was no record of these (delayed)
complaints at the two attendances at St George Hospital or, as far as I could see, in the notes
of Dr Komonen at least until 2 April 2003. A precautionary plain x-ray of the neck was
undertaken at initial presentation at St George Hospital and that study was normal. In the
MRI scan of the cervical and lumbar spine on 16 August 2006 there were no significant
abnormalities and certainly there was no radiological substrate for either cervical or
lumbar radiculopathies. Dr Teychenne is certainly not regarded by his peers as an expert neurophysiologist and, as intimated in the body of my report, there is concern that his
somatosensory evoked potentials are always normal with identical latencies on both sides
of the body. No expert neurophysiologist would make a diagnosis of radiculopathies based
purely on “recruitment patterns” in the EMG which are totally subjective. It is of interest
that Dr Teychenne concluded, on the basis of his neurophysiology, that Mrs Seary had
bilateral carpal tunnel syndrome (no symptoms of that in either arm), bilateral ulnar
neuropathies and bilateral L5/S1 radiculopathies and yet she has no symptoms whatsoever
in the right arm or leg. I believe his comments with effect to the neck, back and limbs can
be totally discounted.”
54. In relation to the disparate and inconsistent results of all the neuropsychometric testing Dr O’Neill said this (at page3):
“Neuropsychometric assessments are important in attempting to quantify cognitive impairments which might arise after closed head injuries. In genuine cases of cognitive impairment (usually associated with moderate to severe head injuries) it is my experience that neuropsychometric assessments are quite uniform. In contrast, in this case, there were marked discrepancies. I think the most valuable assessment was the original one by Mr McMahon who saw Ms Seary at the request of her treating psychologist…The reports of Mr McMahon and Dr Reid are in agreement with my assessment of Mrs Seary.”
He expanded on this theme in cross-examination (T 553.32ff):
“…normally, if it was a mild closed head injury and there was no element of psychological malediction or abnormal illness behaviour, the psychometric reports done by competent people would be very similar and there would be no worsening of psychometric report over the passage of time…there are marked discrepancies in neuropsychometric performance which can’t be explained just simply on an organic brain injury.”
55. Dr O’Neill also rejected Dr Teychenné’s theory as to diffuse axonal injury (at page 4):
“Diffuse axonal injury is certainly found in post-mortems of patients who die from head injury or who die after being in a vegetative state after head injury. Such patients, of course, always have obvious abnormalities on MRI brain scan. It is not clear as to what level of head injury is required to produce minimal diffuse axonal injury. Patients with (mild) head injuries do not, of course, end up requiring post mortems. It is generally accepted that MRI is extremely sensitive in picking up small contusions/haemorrhages that can be seen after head injuries, usually those of a moderate to severe degree. Dr Teychenné’s comments about diffuse axonal injury in this case can only be purely speculative.”
He expanded on this in cross-examination (T 571.1ff and 571.32ff):
“Any axonal injury that may have taken place purely on speculation in this mild head injury is static and could not have progressed…
It is a matter of speculation as to whether a mild closed head injury in this case resulted in any axonal injury. There is no evidence of it from the basis of the investigative studies. What should not
be present, if this was a true pathological injury, is, one, a marked discrepancy in the
neuropsychometric assessments, and, two, a worsening of the neuropsychometric assessments…”
56. Dr O’Neill distinguished between transient post-concussive symptoms and permanent organic brain damage (T 503.12 - 37):
Q. Can you distinguish between post concussional conditions and the symptoms of brain injury. What’s the difference?
A. A concussion is a sort of a - it’s a medical term obviously, but its - I don’t know what the dictionary says about what concussion is, but what doctors think about in terms of concussion is where there’s been a head injury that might produce some headache and some nausea and some vomiting for a few days afterwards or maybe some vertigo. So there was enough severity to cause some symptoms. But usually that kind of concussion is a mild situation from which the patient is going to recover all other things being equal in terms of overall clinical assessment and tests over a
matter of some days to weeks.
Q. Is it then correct to distinguish between traumatic brain injury and concussion. They’re different
things, is that right?
A. I think, yes. A concussion is a bit of a nebulous term really. But I’ve explained it as how a medical person might consider it.
Q. I suppose what I was getting at is, is it accurate to say that the existence of concussion doesn’t imply traumatic brain injury?
A. Correct.
57. There were, therefore, diametrically opposed views as to the aetiology of Mrs Seary’s symptoms amongst the experts. The reputation of psychometric testing as a reliable diagnostic tool was damaged, at least insofar as the diagnosis of organic brain damage not radiologically evident is concerned. Dr O’Neill’s expectation of ‘reliable uniformity’ (T 496.20) was, ultimately a pipe dream.
The psychiatric evidence
58. In 2005 the solicitors for Mrs Seary retained Dr Peter Morse, a consultant psychiatrist, to provide an opinion. He provided several reports and also gave oral evidence. He first saw her on 2 February 2005 at which time he carried out some cognitive testing, in the nature of a ‘mini mental state examination’ (T255.18). He found ‘a surprising impairment’ which it was difficult to believe could be due to anything other than ‘major extensive brain damage or a total lack of co-operation with the testing and/or exaggeration of her deficits.’ Because he did not believe she was exaggerating, he concluded that “her performance in cognitive and other testing could be influenced by what I believe is quite definite evidence of depression and anxiety and lack of confidence”, and that “this level of concussion with the subjective distress experienced can have a lasting psychological effect due to the memory of it”. Whilst he did not rule out brain damage, for which there was ‘subjective evidence’, he preferred a diagnosis of major depression accompanied by panic attacks. He did not believe her symptoms were suggestive of a post-traumatic stress disorder.
59. It was only when Dr Morse was provided with the report of Mr Anthony dated 11 March 2005, which he accepted as evidence of brain damage causing cognitive impairment, that he varied his diagnosis. In his report of 13 June 2005, he said:
“In the light of Mr Anthony’s report I am of the opinion that this is evidence of some cognitive impairment secondary to brain damage though as I mentioned in my report influenced by her anxious, depressed state...”
He was subsequently also sent Dr Rowe’s reports and his view as to brain damage was reinforced, and in his report of 7 June 2007 provided a diagnosis of “Personality change secondary to brain damage”, a position from which he to some extent resiled in cross-examination in the light of the video film (T 253.48 - 254.24). He never saw the results of Dr Reid’s psychometric testing, which were more aligned to the results of his own tests, having regard to the disproportionate results he obtained, nor was he given Dr O’Neill’s reports.
60. In my view, the evidence of Dr Morse did not advance the contention that Mrs Seary suffered any organic brain damage other than some concussional disorder, not involving irreversible brain damage, causing her confusion, headaches, nausea and vomiting, which caused, amongst other things, the need for her to return to St George Hospital on 20 November 2002. Insofar as his diagnosis of a personality change secondary to brain damage was based on the so-called conventional criteria, it was based on inaccurate and incomplete information (see the defendant’s written submissions at paragraphs 123 – 126). Insofar as it was based on the results of psychometric testing, it was flawed, for the reasons I have set out elsewhere in this judgment.
61. In my view, therefore, Dr Morse’s initial psychiatric diagnosis was more compelling than his altered diagnosis of personality change secondary to brain damage. In the context of the original diagnosis, Dr Morse did not believe there was any evidence that the psychological or emotional factors were playing a part in the causation, continuation or severity of her orthopaedic problems in respect of the neck, head and shoulder symptoms. He did, however, consider that her performance in cognitive and other testing could be influenced by her depression, anxiety and lack of confidence.
62. Dr Morse also considered that the subjective distress associated with Mrs Seary’s concussive disorder, including it would seem the paroxysmal positional vertigo diagnosed by Dr Becvarovski, could have a lasting psychological effect. His prognosis for the ‘near future’ was poor and he felt she would have ongoing difficulties finding work, and would be liable to more severe depression and other emotional problems with further stresses. There should, however, be some improvement in her emotional state with less depression and improvement in social and other activities. He had doubts, however, as to whether she would ever return to her pre-morbid level of functioning.
63. The defendant also obtained specialist psychiatric medico-legal evidence. It first qualified a consultant psychiatrist, Dr Derek Lovell. He provided reports but was not required for cross-examination. He saw Mrs Seary, once, on 3 February 2004, and on the basis of the history provided felt it likely she had suffered from a post-concussional disorder and a recurrence of a major depression which first occurred after the birth of her second child, but which had abated. He excluded a post-traumatic stress disorder. He had been provided with the report of Mr McMahon dated 24 August 2004 and the reports of Mr Chris Lloyd, and concluded that the neuropsychological testing ‘did not suggest significant brain damage’. I thought Dr Lovell’s report and his assessment of Mrs Seary were superficial and unconvincing. I have discounted his opinion in my assessment of the issues for determination in these proceedings.
64. Dr John Sydney-Smith, another specialist psychiatrist, was qualified in 2007. He provided reports and gave oral evidence. He saw Mrs Seary on 24 April 2007. Counsel for the defendant does not deal with his evidence in his written submissions, but counsel for Mrs Seary seeks to rely on his evidence as supportive of Mrs Seary having sustained cognitive deficits as a result of her accident, and of her honesty (T 403.5). This was at odds with his report, where he described her as an unreliable historian, particularly as regards the severity of her emotional problems after the birth of Jessica. He also considered that she had been affected by the narcotic analgesics she consumed following her accident, which can affect performance on psychometric and neurophysiological testing. He considered there was no evidence of an organic personality change, and rejected the diagnosis of a Major Depressive Disorder. Rather, in his opinion, she suffered an ‘Adjustment Disorder with Anxiety, Depressive and Compulsive Features, which represented an exacerbation of long-standing neurotic symptoms’. He went on to say:
“She has complained of varying cognitive problems since the accident. However, these cannot be explained on the basis of a minor head injury…Rather it is likely that they are due to her dependence on Codeine preparations, the fluctuations in her cognitive problems probably correlating with the amount ingested…only after she is withdrawn is her emotional state likely to be amenable to counselling. The withdrawal from these preparations is likely to cure her cognitive difficulties.”
It cannot be said, therefore, that this doctor supported Mrs Seary’s case that she sustained irreversible organic brain damage. In his second report, Dr Sydney-Smith confirms his view that the documentary evidence was supportive of a mild concussive head injury that would not be expected to produce any neuropsychiatric sequelae. Such deficits as she has exhibited are ‘neurotic or drug induced or a combination of the two’ (T 405.39).
65. In cross-examination, Dr Sydney-Smith conceded that the history he obtained from Mrs Seary as to her codeine intake was wrong if it is assumed that the only codeine she consumed was what Dr Komonen prescribed for her. His opinion, insofar as it is dependent on any codeine dependence is, therefore, suspect and I discount it to that extent. But it remained his view that her deficits were not the result of a traumatic brain injury (T 405.30), and as such, amenable to improvement or resolution (T 405.46 - 49).
66. Whilst Dr Sydney-Smith had not seen any of Dr Teychenné’s reports, he was aware of Mr Alexander’s article (Exhibit G), and dismissive of it (T 401.38). He said:
“Subsequent studies of people with a post-concussion syndrome have indicated that it probably reflects a neurotic constellation (of symptoms) rather than brain damage”
67. Dr Reid also gave evidence on the psychiatric aspects of Mrs Seary’s presentation. His views on her psychiatric condition relate more to the issues surrounding to the quantification of her damages and I will return to that aspect of his evidence later.
The video film (Exhibit 1)
68. The defendant undertook video surveillance of Mrs Seary in relation to her activities during May 2007, as depicted in the film (Exhibits 1A and 1B). This shows her driving her children to school on 1 May 2007 including walking and getting in and out of her car without difficulty. On 2 May 2007 she is captured filling her car with petrol at a petrol station, paying the bill, driving a considerable distance to a shopping centre, parking and walking briskly into the shopping precinct, carrying a bag, going to the bank, travelling on an escalator, walking up stairs, returning to her car with a rolled-up picture, opening the boot, then driving back, collecting her children, and walking with them along a footpath. On subsequent days there was more film of her driving and walking. Then on 26 May 2007 there was a long segment of her at her son’s soccer match at a local sports ground. She can first be seen in conversation with two men. Later, she chats animatedly with her sister-in-law whilst standing, then sitting. She appears to be bright and cheerful. She goes on a long walk around the oval, then returns to her sister-in-law where she plays with her baby in a pram. At one point she bends over and picks the baby up from the pram and carries it around. There are further instances of her bending and lifting, including lifting her own daughter, Jessica, and carrying her at waist level for about 10 paces.
69. The defendant placed great weight on the video film (Exhibits 1A and 1B). It was submitted, for example, that her presentation was contrary to the evidence about her from various family members, that she in fact can and does conduct normal daily activities. Such as driving, parking, shopping and looking after her children, without apparent discomfort or confusion. There was nothing in the film to indicate disorientation or disorganisation (paragraphs 81-82). She was shown to be capable of moving freely, both when driving and in conversation. There was no restriction of use of her neck, shoulders, arms or hands. She did not favour her right arm or guard her left arm. Her presentation in the film was in stark contrast to that in the witness box (paragraphs 43, 100-101).
Did Mrs Seary sustain cognitive impairment by reason of brain damage?
70. The primary contention made on behalf of Mrs Seary was that her accident caused significant permanent organic brain damage giving rise to ongoing cognitive deficits, including loss of memory and concentration and other attentional deficits. It was submitted that the medical evidence in support of this contention was compelling, confirmed by the evidence of numerous lay witnesses from their observations of her following the accident. “While most people recover from a mild traumatic brain injury and generally speaking pretty quickly after the accident itself, a small percentage which in Dr Alexander’s paper is of the order of 15 percent and in some of the other papers is somewhat less and somewhat more, do not recover” (T 666.24 - 28). The brain damage is in the nature of a microscopic diffuse axonal shearing injury in the white matter of the brain, undetectable by objective means including contemporary radiological means such as MRI scans.
71. Hence great reliance was placed on the expert medical evidence, particularly that of Dr Teychenné and of Dr Rowe as to the results of his neuropsychological and psychophysiological testing of Mrs Seary. There was, correspondingly, an attack on the medical evidence called by the defendant, in particular the credibility of Dr O’Neill and Dr Reid and the reliability of their opinions.
72. There was also considerable reliance on medical literature. Indeed, I was at times concerned that the evidence was moving from the realm of expert opinion to the theoretical, particularly when such material was not capable of being tested by cross-examination. The starkest example of this was the reliance on the article by Michael P Alexander, put forward by some as authoritative, but criticised by others as lacking any clinical validity (eg Dr O’Neill at T 570), or as having been discredited by subsequent studies (see Dr Slack-Smith’s report).
73. I preferred the evidence of Dr O’Neill to that of Dr Teychenné the issue of whether Mrs Seary sustained permanent organic brain damage
74. In my view Dr O’Neill was a more impressive witness than Dr Teychenné. His opinions were more objectively reasoned and formed, and accorded more closely with conventional medical wisdom. I have already noted, for example, the precipitate formation by Dr Teychenné of his view, based solely on the history, which fitted nicely with his interpretation of Mr Alexander’s theory, without waiting for the results of psychometric testing. His subsequent unquestioning adoption of the report of Mr Anthony, once it became available, also caused me pause, having regard to my view as to the unsatisfactory nature of that report. The acceptance by Dr Teychenné of Mrs Seary’s subjective complaints without question was illustrated by his discredited diagnosis of traumatic compressive neuropathy of the left ulnar nerve (see the defendant’s written submissions at paragraphs 92 – 96). I disagree with the written submissions for Mrs Seary that Dr O’Neill’s assessment was ‘far from objective’, and that he was ‘unjustifiably dismissive of material contrary to his own views’. Nor do I agree that his responses to questions were ‘evasive and not to the point’. In my view, Dr O’Neill strived to be scrupulously objective. He made concessions where appropriate and did not push his views from the perspective of a partisan, but from the perspective of a professional, because those views were strongly held. My assessment of him accorded with the submissions for the defendant (T 641.45ff):
"when it comes to estimating loss of earning capacity, there is no such thing as a
conventional approach; there is no rule of thumb which can be applied. It would be so much
easier if there were. But there is not. In each case the trial judge has to do his best to assess
the plaintiff's handicap, as an existing disability, by reference to what may happen in the
future…”
129. The material proffered on behalf of Mrs Seary as to ‘comparable earnings’ was not only ‘slender’, but in my view did not accord with an appropriate range of parameters as to the earnings she was likely to have achieved but for her accident. Not only was it inconsistent with the pattern of her earnings in the 10 years prior to her accident, but also I was not satisfied that the bald data provided on her behalf was reflective of what her true likely earnings would have been. Reliance on the calculations proffered, based as they were on the methodology adopted, would in my view produce a skewed outcome, inconsistent with her history and likely circumstances. I consider it more probable that her likely income would have been at the bottom of the range provided for under the Clerical & Administrative Employees - Legal Industry (State) Award, if not below it.
130. I used that approach in my assessment of Mrs Seary’s likely net earnings, but for her accident, as a registration clerk. My calculations are:
4.3.04 - 1.7.04 17 weeks x $405.00 net = $ 6,885.00
2.7.04 - 11.7.05 53 weeks x $421.00 net = $22,313.00
12.7.05 - 2.8.06 55 weeks x $442.00 net = $24,310.00
3.8.06 - 8.2.08 81 weeks x $460.00 net = $37,260.00 $90,768.00
131. To this sum I add occupational superannuation of $9,984.48 (at 11%) and I therefore find past economic loss in the amount of $100,755.00 (rounded off).
132. Turning to the future, there are no special circumstances that are to be taken into account, and I find therefore that the damages that would have been awarded are to be adjusted by reference to the usual 85% possibility that the events concerned might have occurred but for her injuries.
133. Consistent with my findings above (at paragraph 129 - 130), I consider that Mrs Seary is likely to have been earning, at the present time, but for her injuries, a net weekly amount of $460.00. From this I deduct $150.00, being my assessment of her residual earning capacity (at paragraph 124) producing a net ongoing weekly loss of $310.00. Applying the appropriate multiplier (822) and deducting 15% for vicissitudes, I calculate the amount of future economic loss at $216,597.00. To this I add a sum of $23,825.00 for occupational superannuation (at 11%) and I therefore find future economic loss in a total sum of $240,425.00 (rounded off).
Financial management
134. A claim is made on behalf of Mrs Seary for the cost of the future management of her financial affairs. In the absence of any finding of cognitive deficits as a result of a traumatic brain injury, the basis for such a claim is considerably diminished. Notwithstanding my finding that there is a persisting psychological condition of moderate severity, involving continuing symptoms that include problems affecting her memory and concentration, I am not persuaded, having regard to the totality of the evidence, including that of her husband and the video film, that Mrs Seary’s condition, which will continue to improve, reasonably warrants the need for the management of her financial affairs or the assistance of a fund manager. I agree that the damages awarded are within her capacity to manage, and if appropriate, to invest. She also has the assistance of Mr Bringolf.
135. I find, therefore, that there is no basis for an award of damages for the cost of financial advice and assistance.
Non-economic loss
136. It was not disputed that the required statutory threshold for damages for non-economic loss has been satisfied: s 131 and s 132 Motor Accidents Compensation Act 1999.
137. It was submitted for Mrs Seary that an appropriate award of damages for non-economic loss should be in the order of $325,000.00 to $381,000.00. The defendant submitted that an appropriate award of damages for non-economic loss should be $100,000.00. In the light of my findings, both sets of submissions are inapt, and the award should be somewhere in between those two extremes.
138. The defendant also submitted that Mrs Seary made concessions as to her inability to cope, frustration and unhappiness from time to time prior to her accident, and that she may have had, in any event, temporary depressive episodes consistent with her pre-accident pattern of ‘cyclical depressive moods’ (paragraph 134 of the written submissions). These matters should not be given undue weight, having regard to my view that but for her accident, with the responsibility for and stress caused by her young children being ameliorated by their attendance at school, the chances of recurring depressive episodes was not high. The evidence is that before the birth of her children she was a bright, active and happy person, and there is no evidence of any significant depressive episodes until her children arrived. In my assessment, with that stressor removed, she is likely to have substantially returned to her pre-children persona. Whilst I agree the pre-accident emotional episodes are matters to be taken into account, they would not have impacted sufficiently to affect, for example, her overall well-being or her ability to return to work: Qantas Airways Ltd v Lisica [2007] NSWCA 371.
139. In assessing the damages for non-economic loss for Mrs Seary, I have had regard to the totality of her circumstances. In particular, I take into account her young age. She has already suffered over 5 years of depression, worry, fear and a host of personal problems and unfortunate episodes, particularly within the first six months following her accident, all of which do not need to be repeated here. They include, however, the nightmares and the humiliating experience of being ‘sacked’ from the school uniform shop, the embarrassment from forgetting appointments, making mistakes and the like. She has been subjected to ongoing medical treatment of a persistent and intrusive nature, and other difficulties. She is now faced with a lifetime of disruption to a normal life and the loss of enjoyment that will produce. Her sex-life has been adversely affected. She is faced with the prospect of future psychological counselling at least for several years. She has been and to a lessening degree will be restricted in her capacity for sport and social activity. On the other hand, in my assessment the worst of her problems are behind her, and as Dr Morse said, her improvement emotionally will progress together with the improvement in her social and other activities. As the video film establishes, this process has commenced and progressed to a noticeable degree. I must also take cognisance of the fact, as I have found it, that there is and has been an element of exaggeration of her symptoms.
140. In my view an award of $150,000 is within the appropriate range, having regard to all her circumstances. I find, therefore, that her non-economic loss should be assessed at $150,000.00.
Total damages
141. The calculations as to the damages are set out in the Table below.
142. A claim was made for interest on past economic loss under s 137(4) of the Motor Accidents Compensation Act 1999. It was agreed, however, that I should defer consideration of this claim, and a finding as to the total damages, until after I had assessed the other heads of damages.
Past out-of-pocket expenses Future out-of-pocket expenses Care Past economic loss Future economic loss Non-economic loss Total damages (provisional total)
143. I therefore find total damages, on a provisional basis subject to the addition of interest, if any, in the amount of $569,912.00 (rounded up).
Disposition
144. I defer the entry of a verdict pending the determination of any claim for interest, including the need for argument, and if appropriate, any further evidence.
145. I similarly reserve the question of costs.
146. The exhibits are to remain in court until the entry of judgment and for a period of 28 days thereafter, but may then be returned to the parties.
Note
No claim was made for interest and on 15 February 2008 a verdict was entered for the plaintiff for $569,912.00, and I directed the entry of judgment accordingly. THe question of costs is dealt with in a separate judgment.
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