Shergold v Edwards
[2016] WADC 149
•12 OCTOBER 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SHERGOLD -v- EDWARDS [2016] WADC 149
CORAM: STAUDE DCJ
HEARD: 3-7, 10-11, 13-14, 17-21, 24-26 & 28 AUGUST & 1 DECEMBER 2015 (PLAINTIFF'S CLOSING SUBMISSIONS FILED 7 JUNE 2016)
DELIVERED : 12 OCTOBER 2016
FILE NO/S: CIV 2290 of 2010
BETWEEN: MERRY SONDANG SHERGOLD
Plaintiff
AND
NORMA CAROLINE EDWARDS
Defendant
Catchwords:
Personal injuries - Motor vehicle crash - Assessment of damages - Causation of injuries - Credibility - Turns on own facts
Legislation:
Civil Liability Act 2002
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages assessed at $20,100
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr TJ Hammond
Solicitors:
Plaintiff: Not applicable
Defendant: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Abram v Bank of New Zealand (1996) ATPR41-407
AMP v RTA; RTA v AMP [2001] NSWCA 186
Cachia v Haynes [1997] HCA 14; (1994) 179 CLR 403
Macpherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Neil v Nott (1994) 68 ALJR 509; (1994) 121 ALR 148
STAUDE DCJ:
Introduction
On 25 August 2007 Ms Shergold was a passenger in a stationary Ford Transit van driven by her then husband Andrew Mark Shergold which was struck from the rear by a Mitsubishi Magna sedan driven by the defendant on Tyrant Close, Willetton (the crash). Ms Shergold claims damages for personal injury caused by the crash. The defendant's liability for negligence is admitted.
The claim of Ms Shergold was heard together with that of Mr Shergold. The trial took four weeks and produced over 1,300 pages of transcript. The court received 130 exhibits. In addition to the plaintiffs, the court heard from many expert and lay witnesses. Separate reasons for decision are given in each case. Because the cases have a number of common features, I will repeat, where appropriate, parts of my reasons in Mr Shergold's case, with changes as necessary.
The delivery of these reasons has been delayed in part by the failure of Ms Shergold to provide a written outline of closing submissions as she indicated she would do. When the evidence concluded on 26 August 2015 the trial was adjourned to 28 August 2015 for the hearing of closing submissions. Ms Shergold was invited to make submissions as to what findings of fact were sought on the evidence at trial. Ms Shergold did not appear when the trial resumed. It was further adjourned to 1 December 2016. When Ms Shergold did not appear on that date I directed that a written outline of closing submissions be filed and served by 29 January 2016. Ms Shergold eventually filed a 35‑page written submission on 7 June 2016.
The findings made herein in relation to the plaintiff's credibility are based on views formed during the trial and reconsidered in the light of her written submissions, the late filing of which precluded an earlier judgment.
Issues
Ms Shergold alleges that as a consequence of the crash she sustained the following injuries (statement of claim, par 17):
(a)mild brain trauma as an acquired brain injury or neuropsychological injury as a result of the accident still being investigated by the medical [specialists] however structural damage has been ruled out;
(b)bruised and graze [sic] occipital region of the head;
(c)soft tissue injury to the lumber [sic] spine;
(d)soft tissue injury to the neck and upper shoulders;
(e)bruised lower anterior chest wall;
(f)injury to right hip and knee.
The pleaded injuries in this case are virtually the same as those pleaded by Mr Shergold in his claim. As in his case, the ambit of the claim is large. The amended particulars of damages dated 18 March 2015 detailed a claim for economic losses amounting to approximately $3.14 million. In her written closing submissions Ms Shergold's claim is put at $3,894,950.50, plus unspecified fund management expenses.
The defendant denied in her defence that Ms Shergold suffered any compensable injury. At trial the defendant's position was that if she were injured, Ms Shergold suffered no more than minor soft tissue injuries from which she recovered within a few months. The defendant attributes Ms Shergold's ongoing complaints of injury, loss and damage to injuries suffered in a prior crash in 2011 and pre-existing spinal degeneration as detailed in the re-amended defence dated 25 March 2015. The defendant also contends that Ms Shergold has failed to mitigate her alleged loss and damage by failing to do remunerative work for which she is fit and suited.
Self-representation
Ms Shergold was unrepresented at the trial despite having previously been represented from time to time by four different law firms. It is very unusual in the experience of this court for a plaintiff to be unrepresented in a claim for damages where liability is admitted. Although I draw no inference against Ms Shergold by reason of her being unrepresented, I do not accept that it is due merely to her impecuniosity.
A litigant has a fundamental right to appear in person: Cachia v Haynes [1997] HCA 14; (1994) 179 CLR 403, 417. The duty of a trial judge is to give a litigant in person such information and assistance as is necessary to ensure that he or she has a fair trial: Macpherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534. It is well recognised that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case and the litigant's intelligence and understanding of the case: Abram v Bank of New Zealand (1996) ATPR41‑407, 42, 347. It has also been observed by the High Court that, frequently, the court must assume the burden of endeavouring to ascertain the rights of parties where they may be obfuscated by their own advocacy: Neil v Nott (1994) 68 ALJR 509; (1994) 121 ALR 148.
In this case the court sought to ensure a fair trial of Ms Shergold's claim by making pre-trial directions requiring her to prepare an outline of submissions, a statement of her evidence and a bundle of documents for use at trial. There were two directions hearings, 27 March 2015 and 10 July 2015. All reasonable assistance was given to Ms Shergold for the purposes of securing the attendance of her witnesses and the reception of as much documentary evidence as was relevant to her claim.
The court was mindful of the fact that Ms Shergold speaks English as a second language, having been born and raised in Indonesia. She demonstrated a good command of English consistent with her level of education and her professional work as a language teacher. Occasional word-finding difficulty was encountered, but this did not impede the presentation of her case. The court permitted, within reasonable limits, practical assistance from Mr Shergold, who, with help from his brother, had done most of the documentary preparation of both cases and who prepared the subpoenas for witnesses.
I was satisfied that she was able to understand the directions, suggestions and rulings that were made during the course of the trial, and the reasons for them. The court assisted Ms Shergold from time to time during the examination of her witnesses and in her cross-examination of the defendant's witnesses to ensure that all pertinent questions were asked. Occasionally, during the course of the trial, I made observations aimed at ensuring that Ms Shergold understood the issues on which she bore the onus of proof.
Most of the witnesses sought to be called by Ms Shergold attended. Some gave evidence by video or audio-link. In the case of a couple of medical witnesses who would not attend, orders were made permitting the reports to be tendered pursuant to s 79C of the Evidence Act 1906. By and large, the defendant did not take technical points with respect to evidential matters.
Ms Shergold, unlike Mr Shergold, was frequently upset during the trial. Her tendency to become emotionally distressed became evident in the pre-trial directions hearings. Although this happened frequently, Ms Shergold was, given time, always able to regain her composure. Otherwise, she was attentive to the proceedings. I will deal in due course with the effects of my observations of Ms Shergold's conduct and demeanour during trial on the issue of her credibility.
The severity of the crash
I have made findings as to the severity of the crash in my reasons for judgment in Mr Shergold's claim. These do not need to be repeated. It was not in issue that the collision was forceful and that it occurred unexpectedly, and it is not disputed by the defendant that the impact between the vehicles was severe enough to cause injury.
Ms Shergold's evidence
Ms Shergold's evidence commenced on 3 August 2015. She gave evidence-in-chief that afternoon, and on 4 August. On the morning of 5 August Ms Shergold told me from the bar table that she had felt stressed and suicidal after the previous day's hearing. I indicated to her that if her mental state was affecting her or preventing her from participating properly in the trial she should see a doctor. Ms Shergold indicated that she wished to proceed.
Ms Shergold had been in the witness box on two successive days and had read from a witness statement and given other evidence. Although she had become distressed from time to time, it had not appeared that she was unable to deal with the issues that arose in the course of her evidence. I formed the view over the course of the trial that Ms Shergold had a tendency to affect emotional distress as a coping mechanism.
She sought to convey an impression of being at a significant disadvantage (which I accept she was by virtue of being unrepresented) in order to elicit sympathy. She also sought to demonstrate cognitive impairment due to a head injury which I have found was not proved by the medical evidence. As a result, Ms Shergold's evidence was generally unreliable with respect to matters relevant to causation.
Ms Shergold's background
Ms Shergold was born in the Republic of Indonesia on 29 September 1965 and is a language teacher by profession. She was born in Medan in North Sumatra to wealthy parents, the third of seven children. She enjoyed a happy and relatively privileged life. She completed high school and then did a diploma in languages in Indonesia. A certificate dated 28 April 1986 certifies graduation from a tourism industry high school in Jakarta. There is an academic transcript dated 1 June 1989 from the Indonesian Foreign Language Academy in Jakarta indicating completion of 55 subjects.
There is also a reference dated 1 June 1996 from Ms Ola Sihombing of the Institute of Modern Languages certifying that Ms Shergold had been employed from 1 May 1990 to 31 May 1995 as a private teacher of Indonesian. She had shown good attitude, honesty and dedication.
Ms Shergold came to Australia with the support of her parents to undertake further study in 1995. She undertook a course in English at the Western Metropolitan College of TAFE in Victoria. She did various part‑time jobs and also worked casually as a tutor.
Ms Shergold tendered a reference by Ms Gabrielle Luscombe LOTE (Language Other Than English) coordinator at Lilydale West Primary School in Victoria confirming Ms Shergold's employment as a part-time teacher's aide in 1996. In that position she showed herself to be enthusiastic, reliable and friendly. She related well to the staff and her professional attitude was commended (exhibit 2).
Ms Shergold tendered a bundle of certificates (exhibit 10), including a certificate of satisfactory completion of a summer school in study skills conducted 8 January to 9 February 1996. A certificate from the Western Melbourne Institute of TAFE dated 4 December 1996 confirms that Ms Shergold completed an English for Teachers course between 12 February 1996 and 5 December 1996. A certificate of attendance issued by the Northern Melbourne Institute of TAFE dated 7 November 1997 certifies satisfactory attendance from 14 July to 7 November 1997 and a certificate from Northern Melbourne Institute of TAFE dated 7 November 1997 confirms completion of 14 weeks of an Elicos programme from 14 July to 7 November 1997. The certificate sets out the plaintiff's language skill levels on the Australian Second Language Proficiency Rating Scale.
The certificate of Chalmers Business College dated 9 July 1999 certifies completion of a Certificate IV in Business (Office Administration).
In that year she encountered Mr Andrew Shergold through the internet. He was then living in Brisbane and she was in Melbourne. They eventually met and were married within three months. At that time Mr Shergold was studying at university and also working for a stonemason. Money, according to Ms Shergold, was 'a challenge' (ts 297).
Previous crash
On 1 February 2001, while living in Queensland, Ms Shergold and her husband were the victims of a rear-end collision when a truck drove into the back of a vehicle behind theirs causing their vehicle to be shunted into a vehicle in front. She made a claim for damages, but said that it was a simple process and she did not have to worry about it too much. In her notice of accident claim form dated 2 February 2001 (exhibit 29) Ms Shergold recorded that the estimated speed of the vehicle which struck the vehicle behind theirs was 50 km per hour. She reported whiplash, back pain, neck pain and concussion.
Her compensation for injuries from that crash was for pain and suffering only. She could not recall how much she received. She did not recall there being any allowance for economic loss. (Ms Shergold tendered in evidence a District Court of Queensland civil claim dated 9 January 2004 for $56,436.80 for loss and damage due to personal injuries suffered as a result of the 2001 crash (exhibit 4), together with a statement of claim which sought $50,000 by way of non‑pecuniary loss, $5,000 for future special damages, $836.80 for special damages and $600 for gratuitous services.)
Ms Shergold tendered a medical report by Dr Stuart Baker of Ipswich Road Medical Centre in Queensland dated 25 April 2002 (exhibit 5) to her then solicitors Maurice Blackburn Cashman in which he indicated a diagnosis of whiplash injury to the neck based on symptoms of pain in the occiput, worse on moving her head, headache, and tenderness in her upper cervical spine. Dr Baker noted full movement, but some pain associated with flexion, extension and tilting from side to side. These symptoms were consistent with a rear‑end collision. Dr Baker had seen Ms Shergold on one occasion on 1 February 2001. An x-ray report by Dr Mitesh Gandhi to Dr Baker in February 2001 indicated no abnormalities in the cervical spine (exhibit 6).
A medical certificate of Dr Patricia Smart dated 6 March 2001 stated that Ms Shergold was recovering from her neck injury and still receiving treatment (exhibit 7). She was fit to return to college studies part-time, two hours, three times a week.
In cross-examination Ms Shergold was referred to her statement dated 15 April 2002 (exhibit 8), made 14 months after the crash, in which she said that she could stand for more than 10 minutes, but had severe pain around her neck and that since that incident her health and general wellbeing had been affected. She had reported severe neck pain preventing her from doing day-to-day activities. It was put to her that her statement was inconsistent with what she told Dr Andrew Harper in 2011. According to Dr Harper's report, dated 22 September 2011, she told him that the neck sprain that she suffered in the motor vehicle crash in Queensland in 2001 resolved over a period of three months with physiotherapy. Ms Shergold did not dispute saying that to Dr Harper, but said she was forgetful because of her brain injury.
Exhibit 9 is a medico-legal report by Mr Noel Langley, orthopaedic surgeon, dated 16 October 2002 addressed to Ms Shergold's solicitors. Mr Langley saw Ms Shergold some 20 months after the 2001 crash. At that time she had ongoing neck pain and headaches with radiation of pain to her head and shoulders and down her spine. This was illustrated by a pain chart completed by Ms Shergold which was marked to indicate pain in those areas. Ms Shergold said that housework, studying and shopping made her symptoms worse.
Mr Langley found no deformity in her neck. There were no neurological signs. There was no wasting. Reflexes, sensation and power were normal in the upper limbs. There was a slight reduction of movement of flexion, extension, lateral flexion to the left and right and rotation to the left and right in the cervical spine. There was no deformity of the thoracolumbar spine and a reasonable range of movement. There were no localising neurological signs in her legs. He thought that her ongoing symptoms and disabilities in relation to housework, shopping and studying were due to the 2001 crash. He estimated that she had been left with a 5% permanent impairment to her body as a result of the injury. He predicted future treatment costs of $2,000. No prognosis as such was expressed.
In cross-examination it was put to Ms Shergold that Mr Langley's report was inconsistent with what she told Dr Harper about her recovery. She denied telling Dr Harper that she had no pain after three months. She agreed that in October 2002 she still had neck and shoulder pain.
Mr Philip Hardcastle, orthopaedic consultant, made a report dated 17 September 2003 to the insurer of the defendant in the Queensland damages claim. Ms Shergold was seen on the date of his report. She gave a history of a rear-end collision involving two impacts. She had had two miscarriages since the 2001 crash. She denied any pre-existing spinal symptoms. She complained of neck pain radiating to the shoulders which was constant and worse with stress. She also had low back pain which was relieved by a shower and movement. There were no neurological signs. The report noted that low back symptoms were not constant, but were present in the morning. They did not wake her at night as neck pain did.
She was working from home as a teacher for five hours, two days a week, and had been doing this since July 2003. She was able to do all the housework, but with some limitations. She was able to clean, vacuum, make beds and cook. She was able to shop. She attended church, watched television and went for regular walks. She had no garden. She was able to use a computer. She took Panadol for headaches. On physical examination and review of the plain x-rays Mr Hardcastle diagnosed a soft tissue injury to the cervical spine and mechanical low back pain. He encouraged the use of Panadol intermittently and recommended hydrotherapy and light exercise. He thought she had a capacity to work as a teacher and in a clerical capacity on at least a part‑time basis, 25 hours a week.
His diagnosis was of a soft tissue injury in the mid upper cervical region most likely between C3/4 and C4/5. Abnormal movement in the spine was consistent with her symptoms being an aggravation of a pre‑existing degenerative condition resulting from soft tissue injury. He did not consider that the reported low back symptoms were related to the motor vehicle crash. He expected that there would be a fairly significant improvement over a period of several years. He assessed her loss of cervical function at 10%.
It was put to Ms Shergold in cross-examination, on the basis of Mr Hardcastle's report, that she was still having neck pain in 2003. She was unable to deal with this question, stating that she did not know and did not remember. She maintained that the first crash was not as bad as the second and that from 2001 to 2007 she had no pain in the neck and was able to work and study.
Ms Shergold's evidence in cross-examination with respect to the history of injury given to Dr Harper and Mr Hardcastle was unsatisfactory. It is clear that either Ms Shergold sought to minimise the effects of the 2001 crash when she was examined by Dr Harper for the purpose of this claim, or that she exaggerated the nature and extent of the injuries in her previous damages claim. Either way, her credibility as a reliable historian is diminished. It is probable, as a matter of common sense, that the effects of any soft tissue injuries suffered as a result of the 2001 crash did substantially resolve within a few months, as Dr Harper was told, and that the later reports of ongoing symptoms to Mr Langley and Mr Hardcastle in the context of medico-legal examinations were self‑serving. Be that as it may, there is no evidence that Ms Shergold was suffering any soft tissue injury symptoms at the time of the crash in 2007.
Ms Shergold's academic record from Griffiths University indicates that she completed a number of units in semester two of 2003 and semester one of 2004 in an adult and vocational education Bachelor degree course, studying full‑time. Ms Shergold also tendered two assignments submitted in 2003 as proof of her capacity at that time to write researched essays, a capacity she professed to have lost (exhibits 12.1, 12.2).
Ms Shergold's circumstances pre-crash (2007)
Ms Shergold and her husband came to Perth from Queensland in 2003 and established a business partnership called Aalatio Enterprises (Asia Pacific). She helped her husband in his stonemasonry business by giving him physical assistance and doing office work. She also taught Indonesian and accommodated overseas students. She was unable to say how much she was earning from her work prior to the crash, relying on Mr Shergold to adduce evidence of the business earnings.
A letter from Griffiths University dated 17 January 2007 confirms that Ms Shergold was accepted for re-admission into a Bachelor of Adult and Vocational Education programme on a part-time basis.
Ms Shergold said that she and Mr Shergold tried to start a family. She had suffered a series of miscarriages which she admitted affected her mental health. However, she described herself as a happy and fun-loving person.
In 2007, prior to the crash, she and her husband commenced building a home on a block they had purchased at Mount Nasura.
Ms Shergold tendered five student records from her Indonesian language tutoring business. These five documents contained the names and addresses of students, but no information about their attendances or fees. In cross‑examination Ms Shergold said that she charged $20 for a one‑hour Indonesian lesson. She recalled very little of her pupils.
Ms Shergold admitted that prior to the crash she suffered her 14th miscarriage. Her general practitioner, Dr Olufemi Taiwo, issued a medical certificate for Centrelink purposes on 24 August 2007, just one day before the crash in which he stated that in his opinion Ms Shergold was unfit for work from that date until 15 September 2007 due to depression (exhibit 45). Previously, Dr Justina Taiwo had certified Ms Shergold unfit for work from 24 May 2007 to 22 August 2007 due to her being pregnant (exhibit 44). Ms Shergold appears to have miscarried on or about 6 June 2007 (Armadale Health Service Operation Record, exhibit 43).
Ms Shergold professed not to be able to remember having the symptoms recorded by Dr Olufemi Taiwo, but did not dispute the documentary evidence. She maintained that she was getting on with her life and denied being depressed.
I am unable to accept her evidence in that regard. I am satisfied that Ms Shergold was diagnosed with depression after the miscarriage, secondary to 14 miscarriages in six years. She was certified unfit for work at the time of the crash. It is understandable that Ms Shergold would insist that she was fit and well before the crash. It is in her interests to show that all of her medical problems post-crash are so caused.
The crash
At the time of the crash, Ms Shergold was in her husband's Ford van which was stationary against a kerb. She did not hear the sound of brakes, but remembered a bang and the vehicle moving forward, striking a wheelie bin. She described her body going forwards and backwards after the vehicle was struck.
Initially she felt dazed. As there seemed to be little damage to the vehicles, she did not think she was seriously injured, but her head had struck the seat back and she said it bled. She also said that she did not realise at that time that her husband had been injured. As she was helped out of the vehicle she felt sick and shaky. She was given some water.
She and her husband waited for a tow truck and were then taken by the tow truck driver to a police station. From there they went by taxi to the Kelmscott‑Armadale Hospital. They arrived about 5.30 pm. It was nearly midnight before they were seen by a doctor. They were discharged an hour later. On the following day, a Sunday, she suffered a headache and took painkilling medication. She spent most of the day in bed asleep. She was hurting all over her body. On the Monday she went to her general practitioner.
She came to believe that she had been seriously injured because she had a persistent headache and had difficulty preparing for her student lessons and tutoring. She said she tried to resume her study and found that her brain could not function. She went back to teaching Indonesian to a student who came twice a week to her home. She found that she could not translate Indonesian to English because her brain was hurting. This frustrated her student who ceased to attend for lessons. This occurred within a few weeks of the crash. She described her brain as not functioning, saying 'it squeeze at the back of my head' [sic] (ts 307).
Because they had difficulty in making the mortgage payments on the property they had purchased, she started working at Hungry Jack's in Armadale in November 2007 cleaning tables and floors and emptying bins. She said she had told her manager that she had back pain following the crash. She was able to ask other people to do the heavy jobs at work. When she worked in the kitchen she would often forget to put things into the burgers. She would also forget to log in and log out.
In late July/early August 2008 she became pregnant again. Her doctor advised her to stop working at Hungry Jack's because of her history of miscarriages. She then said that the manual work at Hungry Jack's and the physical pain that she was in had taken a toll on her and that her memory problem had worsened from forgetting words to forgetting other things, such as where she put her mobile phone. She also said she would get lost when she was out and would need to call her husband to help her to get home. She would regularly lose her keys. She underwent physiotherapy for her back.
Whilst working at Hungry Jack's, she said that she had pain in her back and neck. She put up with the pain because she needed the money to pay the mortgage. Because of her pregnancy she was only able to take Panadol. Previously, she took Panadol Osteo.
From September 2008, until her daughter was born in April 2009, she remained at home because of her pregnancy. She said she went to hospital on five occasions because she was fearful that she could not feel her baby in her womb. She could not study. She was stressed by having to move from one house to another. She said they had no money for food. They could not access Centrelink.
Ms Shergold gave evidence of a medical appointment she attended with Dr Keith Grainger, neurologist, who was asked to examine her on behalf of the defendant's insurer. He asked her to lift her leg. She said he was rough. She was shocked and worried about her baby. She said she saw Dr Grainger watching her as she walked from his rooms.
She said that during this time Mr Shergold was trying to study and would spend a lot of time on his computer. She received less and less attention accordingly. After her daughter was born she had difficulty sleeping and believed that her husband was being unfaithful to her. She was left at home to look after the child and felt that she could not cope. She had to get assistance from Ngala (an early childhood parenting service provider) because of her daughter's sleep problems. She said she was very stressed by that situation. She was advised by social workers at Ngala to obtain medical advice for depression.
She could not work as a tutor and Mr Shergold could not work in his stonemasonry business. The mortgage on the block of land at Ballajura was foreclosed. She and her husband could not service their debts and could not afford to live.
They went to Jakarta to live for a short time before returning to Australia and moving to Geelong in 2013. Mr Shergold was accepted for a course at Deakin University. After moving to Geelong they separated. She and her husband were working on a shared parenting arrangement for their daughter.
It was Ms Shergold's evidence that the injuries suffered by her and her husband in the crash in question had deprived them of their ability to work and thereby caused financial problems which in turn had caused stresses which led to their separation. Ms Shergold became bankrupt on 28 February 2013 (exhibit 48). She is now discharged.
Ms Shergold said that her symptoms were increasing and she had more symptoms, including a loss of feeling in her right buttock and pain in her right as well as left lower back, occasionally an inability to move, and numbness over half her body. She said her symptoms were physical and mental.
Ms Shergold recited a litany of symptoms saying that she could not lift more than 2 kg, and that she suffered pain when running, walking, standing, bending and pushing the pram. She had pain in her back and neck. She could not garden, mow, study, sleep, sit too long, carry her daughter, play with or bathe her, or carry a laundry basket. She suffered numbness and sometimes found it hard to swallow.
She was forgetful of appointments and parenting arrangements. She also said she was forgetful of people she met and did not recognise them. She could not think logically. She had to read things repeatedly to understand them. She found difficulty in understanding the television news. She found it hard to calculate the cost of things when shopping. She had to ask people to repeat themselves. She would get lost. She was easily upset or frustrated. Her English grammar and spelling had become worse. She was unable to study or work as a teacher of English or Indonesian. She had developed anxiety and was often frustrated. She was frequently tearful. She described herself as having depression and post‑traumatic stress disorder. She said she was scared watching cars and travelling in cars. She said when she felt stressed she wanted to harm herself, to end her life, but her religious faith helped her to be mindful of her daughter.
Ms Shergold tendered a bundle of documents relating to social services that she and her daughter had received in Geelong following her separation from Mr Shergold (exhibit 11). These indicate that Ms Shergold and her daughter were referred to the Homeless Children's Specialist Support Service in May 2014 for assessment and case management. Ms Shergold was assisted in obtaining accommodation and providing a secure home environment for her daughter. This exhibit includes documentation from Salvo Connect, a Salvation Army agency, concerning the provision of crisis accommodation from December 2013 when Ms Shergold separated from Mr Shergold.
In cross‑examination, Ms Shergold, as she did at other times during the trial, purported not to remember defence counsel's name, claiming that she had a memory problem. She also professed to have memory problems in relation to other matters which one would expect her to have a good recollection. For example, she was asked about what a 'low doc' loan was, having given evidence that she and her husband obtained a 'low doc' mortgage to purchase the Mount Nasura block. She said she could not remember. I have referred also in these reasons to her inability to remember details of what she told Dr Harper concerning her recovery from injuries received in the 2001 accident.
On other occasions she responded to quite simple questions by claiming that her brain did not work. Her affectation of both memory loss and an inability to understand questions did not reflect well upon her credibility. By and large her answers to questions in cross‑examination tended to be evasive.
This extended to her answers to simple questions regarding the contents of her tax returns. When asked whether her tax return for the 2004/2005 financial year showed zero income she answered 'I couldn't answer that one, because I'm injured'. Accordingly, she was not able to verify the information set out in her tax returns. When it was put to her that her average income in the three financial years prior to the crash was $5,000 she said 'I couldn't answer your question' (ts 460). Even when further questions were asked in order to ensure fairness to her, Ms Shergold could not give any meaningful response. When asked how much she earned per hour at Hungry Jack's she said she was not sure and gave the figures of $11 and $10, yet the previous day in her evidence‑in‑chief she had given her rate as $15.50 per hour by reference to what she could earn in teaching, yet she could not remember how much she charged her pupils. She was taken through the five names of students whose details she had tendered in evidence‑in‑chief. She could not remember them, how often they came or how much they were charged. She could not produce any specific invoices or receipts in relation to her language tutoring.
She was questioned about a medical report in her trial bundle by Dr Peter Batchelor in the context of her claimed head injury. Dr Batchelor obtained an MRI of her brain. Ms Shergold said that she did not intend to call Dr Batchelor or a Mr Bradfield whom she had also seen in this regard. When it was put to her that there was no evidence in her case to support a finding that she had suffered a traumatic brain injury in the crash, she said 'I couldn't answer that one' (ts 472).
Ms Shergold was very resistant to making any admission which she perceived as being contrary to her case. So, for example, she refused to accept that she had provided a family history of depression, even though she accepted that other details of her family history were correct, including the ages of her parents when they died and her aunt's breast cancer.
In relation to her pre‑crash mental health, she admitted having suffered 14 miscarriages, but denied having depression as a result. She also denied having post‑natal depression after the birth of her daughter. Ms Shergold feigned confusion and lack of memory. Her denial that she had depression before the crash was unconvincing.
In relation to Dr Olufemi Taiwo's diagnosis of post‑traumatic depression, she said that she had depression because of accommodation problems, not by reason of the birth of her daughter. Ms Shergold accepted, however, that she worried about her ability to breastfeed and the baby's loss of weight (ts 505). She agreed that she was also worried about accommodation. She suffered pain in her back. She agreed that she suffered grief by reason of her multiple past miscarriages. She agreed that she was anxious about coping at home and that she was overwhelmed by parenting. She agreed that her sleep was disturbed because her baby would not settle. However, she did not remember being offered anti‑depressant medication eight days after the birth.
She accepted that when the baby was born she and Mr Shergold were living in a one‑bedroom granny flat. She was worried about finances due to the failure of the business and about compensation. She rejected the suggestion that she was not anxious, stressed or depressed for any reason associated with the crash. She said she was stressed about her accommodation and her block of land.
Ms Shergold acknowledged difficulties occasioned by the breakdown of her marriage in 2013. Her relationship with Mr Shergold in early 2014 was very stressful. She missed her family in Jakarta. In fact, she obtained a letter from a doctor saying that a visit by her sisters was likely to have a positive impact on her mental wellbeing. Ms Shergold accepted that in April 2011 she reported to Dr Komaiya that she was lonely, had no friends and had experienced suicidal thoughts.
Ms Shergold admitted on the day after she was cross‑examined regarding her reported family history of depression that she spoke to her sister Elizabeth by telephone on this subject. She admitted speaking to her sister about this issue notwithstanding the direction given to her by me to the effect that the order for witnesses out of court meant that no witness to be called was to be told any evidence had been given in the trial. Ms Shergold said that she spoke to her sister because she was upset by the questions.
In cross-examination Ms Shergold was shown a number of audio‑visual recordings taken of her during covert surveillance in 2012 and 2015 (exhibits 49-51). One depicted her on the day of her examination by Dr Grainger (15 June 2012). While these did not depict her to be obviously affected by any injury, they were not the subject of comment by any medical witness. To my observation they did not contradict her evidence or her reports to any medical assessor. The defendant made no submission in relation to this evidence. It carries no weight in this case.
Ms Shergold's own re‑examination was assisted by the court reminding her of the topics of cross‑examination.
Later in the trial, after Mr Shergold gave evidence, Ms Shergold was granted leave to give further evidence on the grounds that she forgot to say certain things because of her professed memory impairment. She described knee pain, headaches and low back pain. She told how on one occasion she fell due to knee pain and on another could not move due to pain in her bottom and leg. She also described stress-related pain in the chest and armpit, sleeping difficulties, an inability to sit or stand for long periods, pain caused by cooking and an inability to do gardening or lawn mowing. She went on to describe the emotional effects of suffering financial stress, including suicidal ideation from which she was saved by thoughts of her daughter. The defendant's counsel did not cross-examine.
Dr Olufemi Oladele Taiwo
Dr Taiwo is a general practitioner who first saw Ms Shergold on 4 May 2007. Dr Taiwo identified the practice records which were tendered through Dr Komaiya (exhibit 102). He also identified the number of medical certificates (exhibits 44 to 46). There would appear to be no issue taken with the accuracy of the Warrina Medical Centre records, except as to the family history of depression which Ms Shergold disputes.
According to Dr Taiwo's clinical notes on 4 May 2007, Ms Shergold was pregnant, with a history of 13 miscarriages. She was seen on three occasions before attending on 14 June 2007 when she reported having miscarried the previous week. She was weak and tired. On 23 July 2007 the notes record 'emotional re loss of pregnancy, nil self-harm worries, tired still, counselling'. On 24 August 2007, the day prior to the crash, Dr Taiwo noted 'miscarriage still playing on her mind'.
Dr Taiwo saw Ms Shergold on 27 August 2007, two days post-crash. He found her depressed. He observed bruising and grazing of the head in the left occipital region, but no blood. The notes indicate tenderness in the posterior neck on the left and in the upper shoulders and tenderness in the mid-thoracic spine and right lumbosacral region with restriction of movement. Analgesia was prescribed.
On 5 September 2007 Ms Shergold was referred to physiotherapy. On 8 October 2007 she presented with right knee pain noted to have been caused by a fall as a result of pain caused by the crash injuries. On 25 October 2007 Dr Taiwo noted ongoing pain in the back, neck, and right knee affecting the right ankle.
On 8 November 2007 Dr Taiwo noted continuing soreness in the sole of her foot. She was having weekly physiotherapy. She was prescribed Panamax in lieu of Codalgin Forte.
Ms Shergold was seen for sore ears on 23 November 2007.
On 21 December 2007 Dr Taiwo noted that work had aggravated her back. Ms Shergold did not take anti-inflammatories orally due to gastric symptoms. On that occasion she was prescribed Voltaren Emulgel, having last been prescribed Panamax on 8 October.
On Tuesday, 29 January 2008 Ms Shergold reported neck, back and knee pain. Her recovery had plateaued.
On 29 April 2008 Dr Taiwo referred Ms Shergold to Dr Slinger for an orthopaedic opinion. She was still having physiotherapy weekly and had ongoing neck, back and knee pain.
Ms Shergold was not seen again until 12 August 2008 when she attended for complaints unrelated to her crash injuries, including tiredness and nausea. A pregnancy test at that time was equivocal. It appears to have been confirmed at a consultation on 18 August 2008 that Ms Shergold was pregnant.
She was seen again on 25 August 2008 and 1 September 2008 in relation to her pregnancy.
On 8 September 2008 Dr Taiwo discussed Dr Slinger's report with her.
On 30 September 2008 Ms Shergold was again seen in relation to her pregnancy.
On 6 October 2008 Ms Shergold complained of headache and a sore upper back.
The notes on 15 October 2008 indicate that Ms Shergold was to see a neurologist as arranged by her solicitor regarding crash-related memory loss. She was taking Panamax for symptoms of her crash injuries.
Ms Shergold was seen again on 20 and 28 October 2008, and 3, 12, 15 and 28 November 2008. No notes were made in relation to any symptoms from crash-related injuries.
On 20 November 2008 Dr Taiwo recorded neck pain and thoracic/lumbar back pain with tenderness and restriction of movement in the neck. Panadol was prescribed.
Ms Shergold was seen by Dr Komaiya on 3 February 2009 and then by Dr Taiwo on 6 and 23 February 2009 and again on 1 May 2009 following the birth of her daughter.
The foregoing history is detailed in these reasons to show that there appears to have been no reference in the Warrina Medical Centre records to any psychiatric disorder or psychological disturbance between the date of the crash and 1 May 2009, apart from a note that she was depressed when seen two days after the crash.
On the latter date, however, Dr Taiwo was informed by the Armadale Health Service hospital notes (exhibit 109, 23 April 2009) of a risk of post-natal depression. Dr Taiwo's notes indicate that he made a GP mental health care assessment and plan and referred Ms Shergold for psychological counselling.
In the Armadale Health Service report to Dr Taiwo dated 23 April 2009, the reporting general practitioner Dr Nabilah Islam stated that Ms Shergold was dealing with a number of issues before the birth, including accommodation, finances, compensation, and the recent death of her mother, all of which placed her at high risk of post-natal depression. Dr Islam described Ms Shergold as highly anxious. Her Edinburgh post-natal depression score was 20. (A score above 12 indicated significant risk of post-natal depression). Dr Islam thought it likely that Ms Shergold had moderate severity post-natal depression secondary to psychosocial stressors. Dr Islam did not give evidence.
The history in this respect is relevant to the issue of whether the depressive symptoms experienced by Ms Shergold following the birth of her daughter were post-traumatic, by reference to the crash, rather than post‑natal. The delivery of Ms Shergold's daughter occurred 21 months after the crash.
The practice notes of Dr Taiwo record complaints of stress and the exacerbation of neck and back pain following the birth. Thereafter, the notes refer to post-natal depression and stress symptoms relating to financial difficulties and the effects of the crash.
In long consultations with Dr Justina Taiwo on 30 July and 6 August 2010, three years post-crash, Ms Shergold complained of back pain due to the crash, exacerbated by anxiety and stress. In this regard I note that the writ of summons in Ms Shergold's action was issued on 28 July 2010.
Dr Morenikeji Komaiya
Dr Komaiya was a general practitioner who saw Ms Shergold at the Warrina Medical Centre, seeing her first on 12 November 2010. Dr Komaiya had seen Ms Shergold on one occasion during her pregnancy in 2008.
In 2011 Dr Komaiya referred Ms Shergold for x-rays of her knees and a CT scan of her lumbar spine. She also treated her for depression.
In April 2011 Dr Komaiya said that Ms Shergold reported that her back pain was getting worse. She also reported financial and other difficulties. She prescribed antidepressant medication.
According to Dr Komaiya, on Ms Shergold's history, her reported back pain was due to the crash as she had no such pain previously. Dr Komaiya was unaware of the earlier history of low back pain relating to the 2001 crash.
Dr Komaiya issued a Centrelink medical report on 30 September 2011 (exhibit 16) supporting a disability support pension due to chronic mechanical back pain secondary to motor vehicle accident. The symptoms were described as severe. Ms Shergold was said to be unable to lift or stand for long periods. Her back pain worsened during cooking and she had difficulty bending. She was also diagnosed with major depression and generalised anxiety secondary to the motor vehicle crash. Her symptoms of phobic anxiety, irritability, anger and agitation since the motor vehicle crash were worsened by financial stress. Ms Shergold was noted to be very compliant with recommended treatment.
Dr Barrie Slinger
Dr Slinger is an orthopaedic consultant who made a report in relation to Ms Shergold on 6 August 2008, having seen her at the request of Dr Taiwo on 30 July 2008.
Ms Shergold presented to him with pain at the base of the skull at times severe, aggravated by mental stress and unrelieved by analgesics. The pain was aggravated by certain movements. She experienced headaches a few times a month relieved by Panadol. There was pain experienced in both shoulders, particularly the left, aggravated by activity. There was pain in the lower thoracic spine and lumbar spine aggravated by maintaining a flexed posture, bending and lifting, and sitting or standing for prolonged periods. She also complained of pain in both knees, intermittent, and not associated with any giving way or swelling.
There was no evidence of bony injury on x-ray. There were no neurological signs. Dr Slinger diagnosed soft tissue injuries to the spine as a whole, to both shoulders and both knees. It would appear from his report that he considered the symptoms to be consistent with injuries caused by the crash. He did not consider that Ms Shergold's working capacity had been affected or that her injuries would affect her ability to return to teaching Indonesian. He noted that she had obtained part-time work at Hungry Jack's. Dr Slinger anticipated further improvement with time.
In cross-examination, Dr Slinger said that Ms Shergold reported having no injuries or residual symptoms as a result of the 2001 crash. Dr Slinger said he was not informed by the report of Mr Hardcastle. He accepted that the history given to him was different from that provided to Mr Hardcastle.
Mr Ian Ballantine
Mr Ballantine is a psychologist. He initially met Ms Shergold when she attended with her husband who was referred to him for counselling in December 2007. Dr Olufemi Taiwo then referred Ms Shergold to him on 1 May 2009 for post-natal depression. There was no reference to the crash in that referral.
However, in his report to Ms Shergold's then solicitor dated 1 August 2011(exhibit 97), Mr Ballantine said that she was referred to him for counselling due to her slow recovery from the crash. He was mistaken in that respect. Dr Taiwo referred Ms Shergold again on 4 June 2010 for post-natal depression. Dr Komaiya referred her on 9 February 2012 for reasons related to the crash as appears from her notes (Warrina Medical Centre, exhibit 102).
According to Mr Ballantine, Mr Shergold's inability to work as a stonemason had resulted in financial stress. He stated that due to the collapse of the business and ongoing pain and stress, Ms Shergold had 'not been able to gain fulfilling employment'. The loss of income had caused emotional difficulty which in turn had resulted in the Department of Child Protection bringing into question her capacity to parent her child, adding to her stress. He recommended ongoing counselling. He did not think that Ms Shergold was suffering from post‑natal depression.
Ms Shergold asked Mr Ballantine what symptoms of post-traumatic stress were evident in 2011. He answered (ts 974):
I saw it in you probably because the injuries you received in the crash, the fact of how it had impacted your family, that your – Andrew was not able to work, that you'd also been endeavouring to become pregnant and had a couple of miscarriages, which was pretty devastating for you, and then there was the birth of your daughter, but the symptoms were – and I think there was a part of you that thought the crash could have been worse than it was, hence I sensed that you were suffering from post‑traumatic stress.
Mr Ballantine was cross-examined. He did not know of the diagnosis of post-natal depression communicated to Dr Taiwo by Armadale Health Service and did not know what an Edinburgh score was, yet he accepted that following a further referral by Dr Taiwo on 4 June 2010, Ms Shergold was still displaying symptoms of post-natal depression. He was not informed of any pre-existing mental health issues. He was not aware that she had been diagnosed with depression prior to the crash due to her miscarriages.
Mr Ballantine acknowledged that he was not qualified to make a medical diagnosis. I understand from his answer to Ms Shergold's question about post‑traumatic stress that he was not purporting to make a diagnosis of any recognised psychiatric disorder, but rather to characterise Ms Shergold's psychological problems as he perceived them as being secondary to the effects of the crash in terms of physical injury and financial loss.
Significantly, in my view, Mr Ballantine gave no evidence supportive of Ms Shergold's contention that she was unable to work due to cognitive impairment caused by head injury.
Dr Dennis Tannenbaum
Dr Tannenbaum, a psychiatrist, was called by Ms Shergold and his report of 18 August 2011 was tendered as exhibit 105.1. The report was addressed to Separovic & Associates, Ms Shergold's former solicitors. Dr Tannenbaum interviewed Ms Shergold in the presence of her husband. He was given a history of the crash which was said to have caused head, neck and back injuries with severe persisting pain at the base of the skull.
Dr Tannenbaum observed that Ms Shergold presented as an extremely severely depressed woman with multiple symptoms of 'phobic anxiety, irritability, anger and agitation'. He diagnosed 'extremely severe major depression with associated extreme levels of anxiety'. He recommended antidepressant medication and psychological therapy. He considered that the psychiatric condition was entirely related to the crash and that Ms Shergold had no capacity for work. Her future work capacity could not be predicted. He described Ms Shergold as being 'completely recalcitrant' with respect to accepting appropriate treatment and dealing with the interests of her child. By reason of her not having received appropriate treatment he was unable to assess the degree of any permanent disability.
Dr Tannenbaum explained in his evidence that he attributed his diagnosis of severe major depression to the crash on the basis that Ms Shergold denied any other causes or events and any prior depression. He acknowledged that he had not been told about the crash in 2001. He was not informed of any diagnosis of post-natal depression in 2009. He could not say whether her condition was due to financial stress because he was not provided with any information in that regard. He had no information on which to base any opinion as to whether Ms Shergold sustained a closed head injury.
In cross-examination Dr Tannenbaum admitted that he was not given a history of multiple miscarriages for a period of seven years prior to the crash. He indicated that it may or may not have been very significant, but he accepted that it would have been very stressful. He accepted that depression after a miscarriage was relatively common.
In relation to post-natal depression, he agreed that an Edinburgh score of 20 was significant. He agreed that Ms Shergold, with her history of multiple miscarriages, would have had a very high chance of post-natal depression. He agreed that feelings of family isolation may also contribute to depression, as would ongoing financial stress. Dr Tannenbaum was not given a history of Ms Shergold working for Hungry Jack's from November 2007 until mid-August 2008.
He conceded that if he were given the history suggested by counsel's questions he would have had to revise his opinion as to the contribution of the crash. He said it would remain a factor, but it would not be the singular factor. As to whether it may not even have been a contributing factor, Dr Tannenbaum said that he would require more information in order to give an adequate answer.
Dr Tannenbaum was also asked about his statement in evidence‑in‑chief that Ms Shergold's answers to questionnaires administered by him suggested a level of depression and anxiety 20 to 30% above his clinical impression. He said the disparity depended upon how people came to see him and their cultural background. He said also that where people were assessed after a worker's compensation injury there was a significant exaggeration on questionnaires. In Ms Shergold's case, he thought that even if he discounted her questionnaires by 20% to 30%, he would still have put her at the severe to extreme level as she could barely provide a reasonable history. He accepted that it was possible that there was an element of exaggeration or even feigning of symptoms in Ms Shergold's presentation, but he could not say whether in fact that was so. However, if she was in fact functioning well at that time then he would have to say that she was feigning.
My impression was that some of the symptoms noted by Dr Tannenbaum, being of irritability, anger and agitation, as well as tearfulness and inability to answer questions, were consistent with my observations of Ms Shergold from time to time during the course of her evidence. It was my experience, however, that while Ms Shergold could appear quite dysfunctional on these occasions, she consistently demonstrated an ability to compose herself when it was in her interests to do so.
Although there is no reason to dispute Dr Tannenbaum's diagnosis, it seems to me that his impression of an 'extremely severe' level of illness was based on an exaggerated presentation by Ms Shergold. Moreover, I am unable to put any weight on his opinion, that the cause of her psychiatric disorder was the crash, as he was not given any history of other relevant stressors, or of pre‑existing psychiatric illness.
Dr Uta Bettine Wrobel
Dr Wrobel is a general practitioner. She first saw Ms Shergold on 18 June 2013.
When she was asked about Ms Shergold's mental health, she said that she understood there was an initial diagnosis of post-natal depression followed by a motor vehicle accident and then a relationship breakup and divorce from her husband with an ongoing difficulty with regards to the parenting arrangements for Ms Shergold's daughter. She understood as well that Ms Shergold had been stressed by the litigation and associated issues. Dr Wrobel was informed by an occupational health medical report, a clinical neuropsychological report, a neurological report, a neurosurgical report and a psychiatric report, not all of which were tendered.
I infer that those specialist reports that informed Dr Wrobel and were not tendered would not have assisted the plaintiff.
Ms Shergold asked Dr Wrobel her opinion as to the cause of her mental health problems. Dr Wrobel answered that she was aware that Ms Shergold had been very unhappy following her separation and divorce, but she did not understand how it related to the motor vehicle accident.
In relation to Ms Shergold's report of physical symptoms, Dr Wrobel said that she had complained on many occasions about pain in the neck and lower back, but observed that Ms Shergold was always able to fully mobilise, walk normally and sit during a consultation without obvious symptoms of major discomfort. She had been diagnosed with persistent non‑specific low back pain. There was evidence of a disc bulge in the lower back in 2007, but further CT scans in 2013 were normal. There had been several CT scans of the brain, all of which were normal, showing no evidence of any injury.
As to Ms Shergold's ability to live independently, Dr Wrobel's impression was that she had been able to raise her child but needed psychological therapy in order to be able to move on with her life. She thought that Ms Shergold's severe depression was causing back pain and therefore having a negative impact on her recovery. She had no way of proving that her lower back symptoms were associated with the crash. She actually observed that Ms Shergold had not complained a lot about headaches or neck pain during the time that she had seen her.
Dr Wrobel thought that Ms Shergold had severe major depression with high anxiety levels and that she suffered from post-traumatic stress following the motor vehicle accident, but there was no evidence of any physical limitations due to that incident. She could not express an opinion with respect to Ms Shergold's capacity for work.
In cross-examination, Dr Wrobel said that nearly all of Ms Shergold's consultations were with respect to mental health issues. She agreed that the history indicated that the stress factors included Ms Shergold's history of 14 miscarriages prior to the conception of her daughter, the breakdown of her relationship with her husband and the stress suffered by reason of her financial situation as well as the stress of the litigation both in this action and in the Family Court. Ms Shergold had also been diagnosed with meno‑menorrhagia which caused irregular, possibly prolonged and very heavy periods.
When asked about post-traumatic stress, Dr Wrobel said that that was not her diagnosis. It was my understanding of her evidence that she used that expression because it was mentioned in reports she had read.
Dr Wrobel struck me as a diligent and concerned general practitioner who had developed a good insight into Ms Shergold's situation and whose assessment could be relied upon.
Dr Brendan Meagher
Dr Wrobel referred Ms Shergold to Dr Brendan Meagher, clinical psychologist, in June 2013. Dr Meagher gave evidence that the referral was for treatment of post‑traumatic stress disorder and depression.
Dr Meagher was informed by the psychiatric reports of Dr Stephen Proud dated 7 December 2011 and Dr Dennis Tannenbaum dated 11 August 2011. His assessment was consistent with their diagnoses. He relied on the psychiatric assessments because he did not see Ms Shergold until six years after the crash. He had not done any assessment of her intellectual functioning, but had administered a questionnaire which ascertained her depressive symptoms. He had not discussed her parenting skills. He had not suggested any parenting skills programme.
In his report dated 16 October 2013 Dr Meagher said that he had provided six clinical psychology sessions. His diagnoses of post‑traumatic stress disorder and major depressive disorder were consistent with previous psychiatric assessments in August and December 2011, but there appeared to have been a slight improvement of mood. Ms Shergold had engaged well with psychological treatment, but there had been a deterioration, apparently due to the breakdown of her relationship with her husband.
Dr Meagher made routine reports in similar terms on 10 December 2013, 10 April 2014 and 20 August 2014. On 16 February 2015 Dr Meagher wrote to Dr Wrobel stating that Mr Shergold's alleged non‑compliance with a parenting plan was having an adverse impact on her mental health. On 28 April 2015 he wrote a short report indicating that it would be detrimental to her mental health if Ms Shergold were required to look for work. He requested that she be given a four‑month exemption from doing so. He expected that her motor vehicle accident compensation claim would have been settled in that time.
On 8 May 2015 Dr Meagher wrote to Dr Wrobel in terms no different from his previous standard periodical reports. Indeed, in none of Dr Meagher's reports is any improvement due to therapy noted.
In his opinion Ms Shergold remained in need of psychological assistance due to her high level of distress. As a result of his treatment there had been no reduction in psychological distress which he said was not unusual when people were going to court because the issues were ongoing. He thought that she should have 10 sessions a year of psychological counselling in accordance with Medicare eligibility, ideally up to 15. He thought she would need assistance over a couple of years. Each session would cost $120.
In cross-examination, Dr Meagher said he relied on the reports of Dr Proud and Dr Tannenbaum to a large degree. He was not informed by any medical records pre‑dating the crash. He was not aware of any diagnosis of post-natal depression. He agreed that the breakdown of Ms Shergold's family unit was sufficient to cause stress and depression. Homelessness and litigation were also factors that would contribute to the deterioration of her mental health.
I find in the circumstances that Dr Meagher is not medically qualified to make a diagnosis of any psychiatric disorder and is not otherwise in a position to express a reliable opinion as to the cause of Ms Shergold's symptoms. Moreover, his intervention appears to have been to no long-term therapeutic effect.
Dr Andrew Harper
Dr Harper did not attend to give evidence as requested by Ms Shergold, but his report was tendered pursuant to s 79C of the Evidence Act. He saw Ms Shergold at the request of her solicitor on 22 September 2011. Dr Harper is an occupational physician. Ms Shergold's reported symptoms were depressed mood and low back, mid‑back, neck and knee pain.
Dr Harper diagnosed strain injuries to the cervical and thoracolumbar spine with chronic back pain. He also found that Ms Shergold had major depression with anxiety and cognitive symptoms of memory loss pre‑dating her depression which were undiagnosed and required investigation. She was experiencing socio-economic deprivation which was adversely affecting her mental and physical health and the welfare of her family. Her physical injury was assessed as mild to moderate in severity. Her emotional injury was assessed as severe. The injuries were attributed to the crash. Dr Harper did not identify any other factors contributing to her condition. He felt that she was totally unfit for gainful employment.
It appears from the report that Ms Shergold did not tell Dr Harper that she worked at Hungry Jack's from December 2007 until August 2008 when she became pregnant. She told him that the 2001 crash resulted in a minor neck sprain which resolved over three months with physiotherapy.
I note from the report that Ms Shergold was seen by Dr Harper in company with her husband.
Dr Harper saw Ms Shergold on only one occasion for the purposes of her compensation claim. He has accepted everything she said at face value. He was not informed by the documented medical history of Ms Shergold prior to and following the crash.
Moreover, Dr Harper was not able to be cross-examined. In these circumstances little weight can be given to his opinion as to the nature, extent and cause of Ms Shergold's alleged or any injuries.
Dr Stephen Proud
By the same token, the weight to be given to the report of Dr Stephen Proud, psychiatrist, dated 7 December 2011, to Ms Shergold's former solicitors can also carry but little weight. Dr Proud did not give evidence, but his report was tendered pursuant to s 79C of the Evidence Act.
Dr Proud was informed of the 2001 crash. He described it as very minor. Dr Proud reported that Ms Shergold had moderate impairments in short‑term memory, concentration and speed of cognitive processing, but he did not detail the tests by which these impairments were demonstrated. He diagnosed post-traumatic stress disorder of moderate severity, but did not address the diagnostic criteria. Accordingly, the basis for his opinion is not established by his report.
He nevertheless appears to attribute that disorder, as well as major depression, to the crash and the fact that Mr Shergold had to close his business because of it. Dr Proud reported incorrectly that Ms Shergold had not worked since the crash.
He found that she was not totally incapacitated, and would be able to do part-time tutoring and perhaps low-level study after getting appropriate psychiatric care. He found her fit for rehabilitation. He felt, however, that even with treatment she would be left with permanent residual symptoms of depression and post-traumatic stress disorder which would result in a mild to moderate partial incapacity for work. He thought that this might prevent her from tutoring in Indonesian full-time due to her cognitive impairment. He recommended 15 sessions of psychiatric care at a cost of $300 each. He saw no benefit in continuing with a psychologist. He thought that she would benefit from antidepressant medication, which she was reluctant to take. He assessed a permanent psychiatric disability of 15% assuming that psychiatric care was obtained.
Again, I observe that Dr Proud saw Ms Shergold only once for the purposes of a medico-legal assessment and was not able to be cross‑examined. He was not given a full or accurate history and his report does not set out the factual basis upon which he arrived at a conclusion of post-traumatic stress disorder due to the crash. Likewise, his attribution of major depression to the crash is doubtful as he was not told of Ms Shergold's treatment for post‑natal depression. I accord little weight to his report to the extent that it conflicts with other evidence.
Dr Keith Grainger
Dr Grainger, a consultant neurologist, reviewed Ms Shergold on 17 October 2008 at the defendant's insurer's request and made a report dated 28 October 2008 (exhibit 122(1)).
Ms Shergold told Dr Grainger that she previously worked as a secretary in her husband's business and as an Indonesian tutor. She had ceased the latter due to difficulties in preparing lessons. She had been working at Hungry Jack's until 10 weeks before the examination and had ceased this job because of her pregnancy. She was 13 weeks' pregnant when seen.
Ms Shergold told Dr Grainger that her main problem was loss of memory with difficulty with word finding. This had not improved since the crash. She had difficulty with Indonesian words.
Neurological examination was normal. Dr Grainger applied a number of memory tests. He found that the degree of memory loss exhibited by Ms Shergold was not compatible with injury, there being no suggestion of any direct head trauma other than the occiput hitting the head rest. He found that she did not appear stressed or depressed, but quite happy and smiling. He said that it was difficult to attribute her severe memory problem to injury or, indeed, any organic illness. He found her to have no problem with English during the consultation, except at times some hesitancy in answering. Ms Shergold told Dr Grainger that she had been doing studies, which she ceased, when she became pregnant.
He could not attribute her professed memory loss to the crash. He was told that Ms Shergold recovered from the previous crash in Queensland within three months. There was no suggestion of any brain injury as a result of that incident. He suggested another review following the pregnancy.
Dr Grainger saw Ms Shergold again on 27 November 2009, some 14 months later. She reported some improvement in her memory. Her back was more of a problem following the delivery of her baby. Her neck was improving, but she continued to experience some pain in the shoulder regions. She had had some benefit from physiotherapy and occasionally took Panadol.
Dr Grainger recorded his findings as follows:
There is no evidence of any definite organic persisting problem and the tenderness she described extending from occipital region down to her lumbar region in the midline laterally is outside any organic tenderness and there is also more generalised tenderness in the limbs to pressure. Indeed, she did make comments of total body pain.
With respect to memory which she says has improved she gave a good account of the events indicating no significant problem. However, again, with testing with mathematics she performed very poorly. She thought seven from a hundred was 92 or 93, and seven from 93 was 81. Seven from 10 was three or two, and nine from three was seven or six, whilst she knew five plus five was 10. She did attend high school and seemingly she had no problem with maths at the time.
In addition, there was no evidence of head trauma to suggest brain injury at the time of the accident and, again, I do not have any organic explanation for her difficulty in performing arithmetic.
With respect to her physical findings, that is extensive sensitivity to pain. It is difficult to know if this is psychological exaggeration of more localised pain or whether there is a feigned aspect to this.
It does appear that financial stresses related to her husband not returning to work has been a major factor, even though he was capable of working as a forklift driver for four months without problems.
It appears Ms Shergold does anticipate doing some part-time work, now that the baby is seven months old, to alleviate their financial difficulties.
Dr Grainger did not find an organic cause for the symptomatic findings. He thought it was impossible to escape the possibility that there was an exaggeration of the symptoms. He felt that she was fit for her pre‑crash work.
Dr Grainger was called by the defendant. He has been a doctor since 1963 and practised as a neurologist since 1972. He has previously been the head of neurology at Sir Charles Gairdner Hospital. When asked about his observation that there was exaggeration by Ms Shergold, he said this related to her pain response which was produced by any sort of testing, even the pressure of his hands on her arms. There was no physical explanation for it.
In relation to the memory disturbance reported by Ms Shergold, Dr Grainger said that her responses to testing indicated pseudo-dementia. He considered her responses were non-organic and actually feigned.
Dr Grainger said he had been informed by the reports of Mr Ballantine, Dr Tannenbaum, Dr Harper and Dr Proud, but none had caused him to alter his views.
Dr Grainger was asked about Dr Mander's evidence that Ms Shergold's responses to questions in a mini mental state examination were not consistent with depressive pseudo-dementia. I understood from Dr Grainger's answers that his impression was of a person attempting to mimic dementia, rather than of a person with depression having cognitive impairment that looked like dementia.
He was also asked whether there was any possible brain injury that could have gone undetected which would account for her memory problems. Dr Grainger thought it was significant that CT and MRI scans had not shown any abnormality of the brain. He also observed that Ms Shergold's response to testing was inconsistent with her conduct throughout the consultation where she was able to give a history without any word finding difficulties or other language problems.
It was put to Dr Grainger in cross‑examination by Ms Shergold that he had no specific training in the diagnosis of frontal impact motor vehicle crash injuries. He said that he had expertise in motor vehicle injuries and had training in respect of all aspects of traumatic brain injuries. Dr Grainger went on to describe how, in a front-end collision, injury could be caused by direct impact or by a contrecoup injury due to movement of the head.
Ms Shergold then put to him that she had suffered such movement and had struck her head in the crash. She had sustained bleeding and bruising. In response Dr Grainger made a number of observations. He pointed out that Ms Shergold's reported difficulty in remembering Indonesian words was inconsistent with left temporal lobe injury as brain‑injured persons usually retained their primary language. A reasonably significant injury was required in order to cause language disturbance.
Ms Shergold's complaints indicated a severe memory problem for which a significant head injury would be required. He considered that she did not remember things for other reasons, such as depression and worry. In his opinion Ms Shergold's responses during examination were not consistent with someone with a traumatically caused memory problem.
Dr Grainger did not consider the memory problems were caused by trauma. Nor did he consider that Ms Shergold had progressive dementia. Her problems were not consistent with even minimal brain injury. He found there was no neurological cause for her memory symptoms.
Ms Shergold questioned Dr Grainger about the circumstances of his first examination when she was three months pregnant. She suggested that he had formed an adverse impression of her due to her manner of walking, that is, based on observations made outside of the clinical setting. Dr Grainger rejected the suggestion. I find that Dr Grainger's opinion was not informed other than by the history given to him, his documented clinical findings and the imaging that was available at the time.
I have no reason to find or even suspect that Dr Grainger was partial in his assessment of the symptoms reported by Ms Shergold. On the other hand, I find that his neurological assessment and opinion is cogent and consistent with the absence of any radiological or other objective evidence of brain injury.
I also find that it reflects on Ms Shergold's credibility that she sought to prove, by the tender of exhibit 19, a King Edward Memorial Hospital admission record made on 17 November 2008, that she was hospitalised after being roughly handled by Dr Grainger. The admission bears no relationship to the examination date and the history recorded is simply of abdominal pain associated with stress.
Dr Anthony Mander
Dr Mander, a psychiatrist, was called by the defendant. He made two reports in relation to Ms Shergold; one dated 6 October 2014 and the other 2 June 2015 (exhibit 118).
It is clear from Dr Mander's evidence in court and his report that he was informed not only by Ms Shergold's history as related by her, but also a vast body of documentary information in the form of medical reports and records and other documents. In the body of his report he made reference to the reports of Mr Ballantine and Dr Tannenbaum. Appended to his report is a useful precis of the relevant reports of other practitioners.
Dr Mander found Ms Shergold difficult to interview. She presented in a distressed state such that he did not think, initially, that the interview could proceed. However, Ms Shergold settled, causing Dr Mander to suspect that 'she had a much greater degree of control than she had initially wanted to display' and that her 'outward presentation of severe distress does not correlate with her day-to-day functioning', as I found in the course of the trial. As she was capable of parenting her daughter, Dr Mander thought that she was more functional than she represented. She was pre-occupied with the breakdown of her marriage.
Dr Mander found no evidence of head injury or cognitive deficit. He found her to be suffering from grief for the loss of her marriage. It was difficult to diagnose any psychiatric condition, but he found no evidence of post‑traumatic stress disorder and doubted that the crash could have caused that reaction. She may have had an underlying depressive illness, based on her history, but he considered that it was less significant prior to her separation due to the fact that she had previously been able to work at Hungry Jack's and become pregnant. He doubted that Dr Tannenbaum had challenged her presentation as he had done.
Having been given no 'pre-accident psychiatric history or relevant stressors or medical history', Dr Mander thought the crash could be a cause of her depression and subsequent life events. He made it clear, however, that his opinion was dependent upon an accurate and complete history.
In the second report Dr Mander commented on further information provided to him, including Dr Justina Taiwo's certificate of unfitness to work dated 24 May 2007, the Warrina Medical Centre Mental Health Care Plan Patient Assessment 1 May 2009, and Dr Olufemi Taiwo's referral of Ms Shergold to Mr Ballantine dated 1 May 2009.
Dr Mander's response was as follows:
Overall this additional information reinforces, rather than weakens, the view that I expressed in my previous report. An uncritical acceptance of the symptoms she alleges would lead to the conclusion that she has a serious depressive illness, but there are multiple contradictions of relevance. Of most concern to me is that her mental state was that of a woman who seemed to be providing an emotional 'display' which she would clearly control when requested to do so. She did so when I told her that she would have to return to Victoria without the interview proceeding.
Even if it could be shown that she has a low grade, chronic, but significant level of depression, multiplicity of psychosocial stressors provides a more compelling reason than a minor motor vehicle accident.
Mr Philip Hardcastle
I have referred to Mr Hardcastle's medical report dated 17 September 2003 (exhibit 124.1) in relation to Ms Shergold's claim for damages arising out of the 2001 crash. Mr Hardcastle was subsequently requested to examine the plaintiff at the request of the defendant's solicitors and provided further reports dated 14 May 2015, 26 May 2015 and 24 August 2015 (exhibits 124.3, 124.4 and 124.5).
Mr Hardcastle confirmed that when he saw Ms Shergold in September 2003 she said she still had constant neck pain, headaches and mechanical lower back pain, but had been working as a teacher five hours, two days a week from July 2003. He had difficulty ascertaining her work activities after that time, but was told that she taught Indonesian and provided home-stay accommodation for students. She also helped her husband in his work as a stonemason doing some physical work and some administrative duties. Ms Shergold told him that at the time of the crash she was studying education, but could not complete the course due to a head injury. She also ceased teaching.
As a result of the crash she said she had pain in her head and neck and in both shoulder region. She started to get right knee pain about a month after the crash and left knee pain a few years later. She was taking Panadol Osteo three times a day and antidepressant medication. After carrying out a physical examination and reviewing the radiological films Mr Hardcastle concluded as follows:
The history as reported is of a rear end collision and development of neck and low back pain directly following this. The initial report from Armadale Hospital makes reference to the impact at about 70 kph from behind with pain in her head and neck at the time with x-rays of the cervical spine being taken were normal [sic]. Since then, she has developed other symptoms including low back and both knees. I could not find any specific evidence that there was any definitive injury in relation to the lower back and she did report the knee symptoms starting well after the accident. It also has to be taken into account that she became pregnant shortly after the accident and given the previous history where she was having low back symptoms in pregnancy before unfortunately the spontaneous termination occurred, it is more likely that the back symptoms relate to this and her subsequent maternal commitments.
Mr Hardcastle was unable to identify any traumatic brain injury, but acknowledged that this was outside of his expertise. He deferred to the opinion of Dr Grainger in this regard. On examination, Mr Hardcastle found that Ms Shergold demonstrated no objective neurological or nerve compression signs. She had an excellent range of neck movement and normal straight leg raising. On the other hand, there were signs which were indicative of anxiety, as opposed to organic pain. She demonstrated sensory disturbance to light touch over the left side of the body. Examination of the knees revealed no swelling, restriction of movement or crepitus.
Mr Lowe was engaged by Mr Shergold and Ms Shergold to do their financial reports and tax returns for 2003 to 2007. His evidence was somewhat at odds with that of Mr Harrison who was engaged some years later. In May 2010 Mr Harrison prepared returns from 2003 to 2009. At that time he completed original accounts for the partnership which ceased on 31 December 2006. Mr Harrison said that the assets of the partnership were transferred to the Shergold Family Trust which commenced on 1 January 2007. The partnership raised an invoice for the assets.
In 2011 he was requested to amend the accounts to correct errors which were said to have occurred in previous tax returns for 2003 to 2006.
Mr Harrison's evidence was troubling as to the way in which the annual accounts of Aalatio Enterprises (Asia Pacific) came to show a dramatic, and seemingly inexplicable, increase in profit in the year prior to the crash.
Mr Harrison said that he was not engaged to advise Mr Shergold or Ms Shergold as to the treatment of expenditure, but merely to produce the tax returns and to make the later amendments. He did not examine all of the financial documents in great detail. The scope of his engagement was limited to tax return preparation.
Mr Harrison informed the court that the accounts were done on an accrual basis. The stated revenue included interest charged on outstanding invoices. Unrecovered debts would be later written off.
Mr Harrison primarily relied on what was recorded in a bookkeeping software programme called QuickBooks. It was clear that he was not concerned to verify invoices. He agreed that to ascertain the income of the business for any one year one could simply add the third party invoices and correlate that sum to income shown on the bank statements. An invoice would indicate business activity, but was not evidence of income. No bank statements were tendered.
Exhibit 80 is a series of tax invoices and other documents relating to Aalatio Enterprises (Asia Pacific) and the Shergold Family Trust generated by accounting software. These documents had not been discovered and were disclosed for the first time in the trial. Exhibit 80 includes a number of documents purporting to be invoices for homestay accommodation and meals and Indonesian language tutoring provided by Ms Shergold. Neither Mr Shergold nor Ms Shergold gave much evidence in relation to these documents.
Based on the analysis of the invoices provided by the defendant with her outline of closing submission dated 28 August 2015, which appears to me to be accurate and which has not been disputed, language tutoring and homestay accommodation income on an annual basis was as follows:
Language Tutoring
2003 – 2004
$2,768.00
2005 – 2006
$40.00
2006 – 2007
$33,356.50
2007 – 2008
$2,420.00
Accommodation
2002 – 2003
$2,464.28
2003 – 2004
$2,172.00
2006 – 2007
$2,333.12
2007 – 2008
$3,406.24
2009 – 2010
$9,305.84
The invoices are difficult to accept as face value and require some scrutiny. In the year ended 30 June 2004 nine invoices were issued to Lance M Baker for Indonesian lessons at the rate of $37 per hour and translation services at various rates. In 2006 there is only one invoice, being a cash sale on 1 June 2006 for $40. In the year ended 30 June 2007 the only named pupil was Matt Glossop who was invoiced on 5 January 2007 for five three-hour lessons, a total of $480. The rest of the invoices for that year appear not to be invoices at all. Rather, they appear to be summaries of services described as 'casual Indonesian tuition (walk-ins)'.
The invoices for language tuition are unreliable. I do not accept that the invoices described as 'walk-ins' are genuine. These, I find, have been invented to create a false impression that Ms Shergold generated $33, 356.50 from tutoring in the financial year prior to the crash. Ten invoices for 'walk-ins' services totalling $16,709 are dated 31 March 2007, and nine of them have the same invoice number (17). A number are duplicates, being exactly the same as another except for the period. Nine invoices totalling $16,087.50 are dated 30 June 2007, after the date of Ms Shergold's miscarriage. It is clear from the evidence that she would not have been fit for any work for some time after that unfortunate event.
Whilst I am prepared to accept that Mr Baker and Mr Glossop were actual clients of Ms Shergold, I can give no weight to the invoices which are not addressed to any person. No copies of receipts, or any bank statements were tendered in order to prove actual income. As Ms Shergold did not speak to any of the invoices, I am unable to accept them as reliable evidence of either her actual tutoring services or the income from them. The apparent falsity of at least some of these invoices reflects on the credibility of Ms Shergold and her husband, upon whom she expressly relied to prove her pre-crash earning capacity.
As far as the homestay accommodation income is concerned, again, a number of invoices are difficult to accept at face value, yet they merely indicate that in the financial years 2003, 2004 and 2007 an average of $2,323.13 was earned from homestay services.
It is not Ms Shergold's case that she has been unable to provide homestay services, but that she has not had the accommodation to offer. She did elicit from Mr Shergold in cross-examination that she provided homestay services in 2009 - 2010 (ts 858) earning $9,127, and in further evidence she said at that time, when her daughter was aged 2, she would get right bottom pain from 'cooking too long' (ts 861).
Ms Shergold's 2003 taxable income of $6,196 was made up of $2,173 in Newstart allowance, $3,690 in Austudy payments and $333 designated as special benefit. The return also declared a distribution of a loss from Aalatio Enterprises (Asia Pacific) of $7,174. The business of Aalatio Enterprises was stated to be 'stonework on construction projects'. This return is said to be an amended return corrected to show the distribution of loss. The date of submission of the return is not indicated. (It appeared from Mr Harrison's evidence that the amended annual statements and returns were not lodged due to non-payment of fees (ts 1257).
The 2004 taxable income of $6,421 was made up of $808 from Newstart and $5,613 from Austudy. There is a loss of $4,111 distributed from Aalatio Enterprises.
The 2005 income was zero, but there was a distribution of loss from the partnership of $6,894.
The 2006 tax return shows a loss of $38,910 made up of a distribution of loss of $20,731 and deferred non-commercial losses of $18,179.
The 2007 tax return states that the main occupation of Ms Shergold was company director. She declared a total income of $52,524. This included a partnership distribution of $26,409 from Aalatio Enterprises, a trust distribution of $14,653 from the Shergold Family Trust and salary income from the Shergold Family Trust of $11,462, a total of $41,062. Against this income there was a set-off of $38,910, being accrued tax losses from previous years. Hence, the net taxable income shown for 2007 in that tax return was $13,614.
Curiously, the notice of amended assessment for the year ended 30 June 2007 dated 6 November 2012 (exhibit 36) issued by the Australian Taxation Office, indicates a taxable income of $19,252. The inconsistency between this amount and the tax return and tax estimate prepared by Mr Harrison is not explained other than by his evidence that he put in an amended return. (This document was not tendered.)
Ms Shergold produced another 2007 individual tax return, apparently completed by Mr Lowe, that indicated that she had received salary income of $11,462 from Karunia Holdings Pty Ltd (the trustee of the Shergold Family Trust) and supplemental income of $6,970 to give a total income of $18,432.
The 2008 tax return shows income of $11,014 from Hungry Jack's and Newstart allowance of $5,780. Ms Shergold agreed that she earned at the rate of about $15.50 per hour at Hungry Jack's.
The 2009 income was $6,079 from Hungry Jack's and $5,704 from Newstart. There was also a partnered parenting payment of $1,559 declared.
In 2010 the declared income was $10,380 by way of unspecified government allowances.
Ms Shergold's tax return for 2011 shows partnered parenting payment income of $10,818.
Also tendered was a bundle of financial reports described as 'find reports' for Aalatio Enterprises (Asia Pacific) (exhibit 28). Ms Shergold was unable to speak to the information in these reports and said that her husband would address them. The court indicated at the time of the tender that that would not be given any weight unless they were explained.
Findings as to injury, loss and damage
The main issues relate to credibility and causation.
Ms Shergold was born into a wealthy Indonesian family. She was afforded the opportunity of tertiary study in Jakarta and Melbourne. She acquired language teaching skills which enabled her to work as a language tutor.
Following her marriage to Mr Shergold in 1999, Ms Shergold suffered a series of misfortunes, of which the crash is but one. The others include the 2001 crash in Queensland, financial difficulties from time to time dating from the very beginning of the marriage, multiple miscarriages up to 2007, post-natal depression in 2008, accommodation problems from time to time, social isolation, mortgage foreclosure, bankruptcy, marriage breakdown and divorce, parenting arrangement difficulties, and this protracted litigation.
Her present circumstances are much reduced from those she enjoyed in Indonesia as a younger woman. She is financially disadvantaged and lacks social support. She has been diagnosed with depression.
During the course of a long trial the court was able to observe Ms Shergold's behaviour quite closely. It would be artificial and impracticable to disregard entirely the impressions I formed of her by her conduct of the action. It is essentially, however, upon a careful consideration of her sworn evidence and the evidence as a whole that my findings of fact are based.
Ms Shergold, in the course of her evidence, made a number of histrionic outbursts which were consistent with those in which she indulged in the course of her cross-examination of the defendant's witnesses. In each case she was able to collect herself and carry on. Ms Shergold demonstrated a tendency to respond to stressful situations by losing her composure. Her ability to recover it within a short time was a telling feature of her behaviour in that respect. In my view Ms Shergold's episodes of apparent emotional lability were consistent with Dr Mander's evidence to the effect that her problems are essentially psychological. There is no evidence to suggest that they are indicative of brain injury.
Ms Shergold struck me as a woman who had been rendered quite powerless in her troubled relationship with Mr Shergold, upon whom she has been heavily dependent, emotionally and financially, since 1999. She undoubtedly has experienced enormous stress as a result of the breakdown of that relationship and her need to rely on Mr Shergold's assistance to prosecute this litigation.
There are really three areas of alleged injury upon which findings are required; brain injury, depression and soft tissue injury to the spine and the knees.
Depression was not specifically pleaded, but emerged during the trial as a feature of her presentation to various doctors and as an explanation for symptoms for which no physiological cause could be found. The defendant raised no formal objection on the grounds of relevance. I take her position to be that in order to determine the claim on its merits it is necessary to make findings as to whether the crash caused or materially contributed to a psychiatric disorder in the form of depression and anxiety.
Section 5C of the Civil Liability Act 2002 applies to issues of causation. In this case, where findings are required as to the nature and extent of any injury caused by the crash, common law principles apply also. They are well‑established and do not require discussion.
Brain injury
No expert evidence has been adduced by Ms Shergold to prove her claim of brain damage due to the crash. The bruising and grazing of Ms Shergold's head noted by Dr Olufemi Taiwo does not signify a brain injury. There is no evidence that they caused any significant pain or discomfort. According to Dr Taiwo there was no associated bleeding.
Exhaustive investigations have been done. The specialists whose reports informed Dr Wrobel, namely Dr Batchelor, neurologist, and Dr N Bradfield, neuropsychologist did not give evidence. Ms Shergold did not seek to tender their reports. Ms Shergold was questioned about them (ts 411, 470-472, 542). It is reasonable to infer that they did not find any evidence of brain injury.
The evidence of Dr Grainger, Dr Mander and Dr Home, which I accept, is to the effect that Ms Shergold suffered no brain injury which would account for her professed cognitive impairment.
No objective evidence of any acquired brain injury exists. There has never been so much as a provisional, or even differential, diagnosis of such an injury. No loss of consciousness was reported or recorded on initial examination and there is no radiological evidence of brain injury. There is no neuropsychological evidence to suggest brain injury. The allegation of head injury is wholly unmerited.
The cognitive symptoms of memory loss, poor comprehension and lack of concentration described by Ms Shergold are possibly attributable in part to depression, but have been exaggerated in her own interest, to rationalise her claim for loss of earning capacity.
Depression
On the day before the crash Ms Shergold was diagnosed with depression following a miscarriage. Dr Olufemi Taiwo certified her unfit for work from that date until 15 September 2007. She had, in fact, been certified unfit for work due to her pregnancy from 24 May 2007. She was noted to be depressed two days after the crash, but was not diagnosed with any psychiatric disorder until after the birth of her daughter in April 2009.
I find that Ms Shergold has suffered depression and associated anxiety since that time, but not by reason of the crash or any physical injuries it caused. The references in the reports to post-traumatic stress do not reflect a reliable medical diagnosis of a recognised psychiatric disorder of that kind. I have given my reasons for not accepting the ex post facto labels of the psychologists Mr Ballantine and Dr Meagher in that respect, and for not accepting Dr Tannenbaum's initial opinion, from which he substantially resiled in court when informed of Ms Shergold's history.
Ms Shergold's depressive disorder, to which I find she was vulnerable because of her history of multiple miscarriages, was precipitated by the birth of her daughter and has been exacerbated by subsequent events, including marital breakdown associated with financial difficulty, parenting issues, accommodation insecurity and the stress of this litigation.
She has unreasonably invested all her hopes for the future in this case. It is understandable, therefore, that she would seek to attribute all that is wrong in her life to the crash. But on any analysis - and the court has dwelt long and hard on the question - the clinical history does not support the required causal nexus.
As I have remarked earlier in these reasons, Ms Shergold is an unreliable historian. Accordingly, I do not accept her evidence where it conflicts with the documented medical history.
Soft tissue injuries - spine
On the evidence I find that Ms Shergold suffered a soft tissue injury to her neck as a result of 1 February 2001 crash. This injury caused neck and shoulder pain and headaches. Ms Shergold substantially recovered from that injury, by her own admission to Dr Harper, within months. That recovery, it seems to me, is consistent with there being no abnormality on x-ray and Ms Shergold having a full range of movement when seen by Dr Baker on the day of the crash and being certified fit for part-time study on 1 March 2001.
Her later reports of ongoing symptoms to the orthopaedic consultant, Mr Langley, who examined her for the purposes of her damages claim, were obviously made for the purpose of substantiating that claim. In the same way her reports of symptoms to Mr Hardcastle, who examined her for the defendant's insurer, served her interests in respect of that claim. Those reports and her statement dated 10 April 2002 were exaggerated, to put it kindly. It is likely that Ms Shergold simply reported symptoms which are commonly experienced and easily described. In truth, the injury from the 2001 crash was minor. Ms Shergold was not suffering any effects of it in 2007.
It is likely that following the crash in question Ms Shergold suffered similar injury. This much is undisputed by the defendant. I accept that she experienced headaches after the crash. Her presentation to Dr Olufemi Taiwo, two days later, with tenderness and restriction of movement in the neck and upper shoulders, mid-thoracic spine and lumbosacral region is consistent with crash-caused soft tissues injuries to those areas. Thereafter, Ms Shergold underwent physiotherapy and was prescribed medication.
The medical evidence of injury is to the effect that establishes that whilst she did suffer such neck and back symptoms in the aftermath of the crash, consistent with having suffered soft tissue injuries, there is no objective evidence of any pathology to account for her ongoing symptoms. Moreover, it is clear that such physical injuries as she may have suffered were not incapacitating for more than a few weeks as she was able to take up part-time work at Hungry Jack's in November 2007 which she continued to do until she was put off work by Dr Justina Taiwo in August 2008 by reason of her pregnancy. She reported an aggravation of back pain in December 2007, but was not prevented from working.
The evidence of Ms Shergold that in August 2015, some eight years post-crash, she still suffered from chronic neck pain, headaches and low back pain is difficult to accept having regard to her recent medical history which indicates that while such complaints have been made to medical practitioners who have reviewed her for medico-legal purposes, her treating general practitioner, Dr Wrobel, to whom she has also complained of back and neck pain, has principally seen her for mental health issues.
Her evidence is also rendered doubtful by reason of her propensity to exaggerate symptoms which has been clearly demonstrated by reference to the claim for damages made with respect to the 2001 crash. Long after she admitted recovering from soft tissue injuries caused by that incident, she represented to medico-legal examiners that she had continuing symptoms. I do not accept that Ms Shergold simply has a poor memory or was in any way confused in that regard.
There is no evidence of any medical opinion supportive of a finding that Ms Shergold's ongoing soft tissue symptoms are caused by the crash. According to Dr Home, the symptoms reported are consistent with age and are not due to any traumatic injury. The evidence of Dr Grainger, Dr Home and Mr Hardcastle, which I accept, is to the effect that Ms Shergold's pain responses on examination are non-anatomical and, are therefore, if not feigned, due to anxiety and depression.
She no longer suffers from any soft tissue spinal injuries caused by the crash. I find that she recovered from those symptoms within a couple of years at the most. They were not disabling. Her post-partem back pain has not been shown to be crash-related.
I find that Ms Shergold recovered from these injuries as she did from the injuries she suffered in 2001. Her reported symptoms and the clinical signs are not indicative of a physiological cause. As her depression is not crash-caused, I find that any physical symptoms attributable to that condition are unrelated to the crash.
Soft tissue injuries - knees
I accept that she complained of some right knee pain soon after the crash and that her knees were rendered symptomatic for a time, the crash probably having the effect to stirring up pre-existing changes. There is little evidence to support Ms Shergold on this point; Dr Home and Mr Hardcastle being dismissive of any likely knee injury. Dr Slinger made a record of intermittent pain in both knees in August 2008, diagnosing soft tissue injury. There was no swelling or giving way. Otherwise, the knees have not featured much at all in Ms Shergold's complaints to her doctors.
Dr Komaiya investigated the knee symptoms in 2011 and 2012. She suspected osteoarthritis (ts 1056). No evidence of injury was found on x-ray on 23 March 2011 (both knees), arthrogram on 12 July 2011 (right knee), or x-ray on 17 August 2012 (left knee): exhibit 24 (pages 65, 66, 76). It would appear moreover, that knee discomfort did not affect her work at Hungry Jack's in 2007 and 2008.
Doing the best I can, I find that Ms Shergold suffered soft tissue injuries to her knees causing intermittent mild symptoms. Her symptoms are consistent with age-related changes. They have not been disabling. On the basis of the evidence of Dr Home that Ms Shergold has age-related chondromalacia patellae, and the fact that no injury sequelae have been identified on x-ray, and in the absence of other acceptable expert evidence to the contrary, I am not able to find that any current symptoms can reasonably be attributed to the crash. Nor can I find with any specificity when they ceased to be so attributable.
For completeness, I note that the alleged right hip pain appears to be associated with the right knee symptoms, but has not been the subject of much complaint, documentation or comment. No separate diagnosis has been advanced. I propose to take it into account as a symptom associated at one time with the right knee symptoms. It is of no great significance in terms of damages.
I will take the knee injuries into account in determining non‑pecuniary loss. There is no evidence that they have caused any economic loss or any past or future needs.
The contribution of the litigation
It was argued by Ms Shergold that her crash-caused injuries were exacerbated by the conduct of the defendant's insurer in 'dragging out' the litigation in order to 'psychologically and economically exhaust' her. She has alleged that she has been 'pauperised' by the length of the litigation.
There is no merit in this criticism. It is plain that the length of the litigation is mainly due to the extravagant and unsustainable claims by the plaintiff as to the nature and extent of her injuries and losses. Her present financial difficulty is the result of prolonged affectation of injury and disability and the misattribution by her of problems and difficulties that are not caused by the crash in question.
Depression caused merely by the stress of litigation is not compensable: AMP v RTA & Anor; RTA v AMP & Anor [2001] NSWCA 186. A tortfeasor is only liable for the foreseeable psychiatric consequences of injury. The depression suffered by Ms Shergold was not caused by any crash-caused injuries or the circumstances of the crash itself.
Assessment
Non-pecuniary loss
On the basis of my findings as to the nature and extent of the soft issue injuries to her spine and knees I assess Ms Shergold's damages for non‑pecuniary loss in accordance with s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 on the basis of a proportional severity of injury of 10% of a most extreme case.
The sum reserved for a most extreme case (amount A) is $406,000. The sum of $40,600 is 10% of that amount. The deductible (amount B) is $20,500. Accordingly, the net award for the non-pecuniary loss is $20,100.
Past loss of earning capacity
Ms Shergold's claim for loss of earning capacity was based on an inability to work due to cognitive impairment due to brain injury. There was no brain injury or other injury to prevent Ms Shergold working as tutor or in the business of Aalatio Enterprises (Asia Pacific).
The cessation of the stonemasonry business conducted by Ms Shergold's husband and herself was not due to any incapacity on the part of Ms Shergold. I have found that she was not incapacitated at all due to any crash-caused injury.
The fact that Ms Shergold was able to obtain employment at Hungry Jack's in November 2007, which she continued until she ceased due to her pregnancy in August 2008, tells against any loss of capacity to work in the immediate aftermath of the crash. I am not satisfied that she has suffered any incapacity to work due to any crash-caused injury that has been productive of economic loss.
It follows that I reject her claims relating to the loss of the Mount Nasura property and her subsequent bankruptcy.
Future economic loss
Ms Shergold claims damages for loss of earning capacity on the basis that by reason of cognitive impairment due to brain injury, she discontinued higher education studies which would have qualified her for better remuneration as a LOTE teacher.
On the basis of my findings that the plaintiff no longer suffers from any symptoms that can be attributed to the crash, she is not, and is unlikely in future to be, incapacitated due to any crash-caused injury and is therefore not likely to suffer any economic loss.
Past and future services
I am not satisfied that any of the compensable injuries suffered by Ms Shergold has given rise to a need for personal services of care or domestic assistance. There is no evidence of the need for such services due to injury or the provision of them. By reason of my findings as to the course of those injuries, no future need for such services can be shown.
Future medical expenses
I am not satisfied that the plaintiff has any compensable need for medical treatment in the future. Her soft tissue injuries have resolved such that any ongoing problems are due to non‑compensable conditions, such as age-related degeneration or psychiatric disorder.
Special damages
Ms Shergold has particularised a claim for $11,221.20 for treatment expenses: medications, $551.20; physiotherapy, $2,500; psychologist, $3,645; physiologist, $320; general practitioner, $3,375; and psychiatrist, $780.
No proof of these expenses was provided at trial. Obviously my findings would preclude the recovery of expenses relating to treatment for depression and anxiety. As to the remaining expenses, there is no proof of expenditure or any detail of the date of the services for which payment was made.
The claim for special damages overlooks the recovery likely to be made by the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Act1995 (Cth) pursuant to which the Health Insurance Commission will issue a notice of charge.
I propose to grant liberty to apply generally with respect to the assessment of special damages on the basis that the parties confer with the view to agreeing what expenses should be allowed for special damages on the basis of the findings of fact in these reasons.
Other heads of damage
It follows from my findings that Ms Shergold is not to be compensated for any 'loss', tangible or intangible, stemming from the breakdown of her marriage. It was not caused by any injury due to the crash, and if it were, it is unlikely that it would have been found to be a foreseeable consequence of it.
Conclusion
Ms Shergold is entitled to damages as assessed in the sum of $20,100. There will be liberty to apply with respect to special damages in the event that agreement as to quantum cannot be reached, any such application to be made within 30 days.
0
7
2