Smith v Carnival Plc trading as P&O Cruises Australia

[2018] NSWSC 782

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Smith v Carnival Plc trading as P&O Cruises Australia [2018] NSWSC 782

Hearing dates:

27; 28 March and 6 April 2018

Date of orders:

31 May 2018

Decision date:

31 May 2018

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Judgment for the plaintiff in the sum of $445,372.00.

 

(2) The defendant to pay the plaintiff’s costs.

 

(3) Liberty to the defendant to apply in respect of the costs order by lodging written submissions and any evidence relied on with my Chambers within 14 days.

 (4) The plaintiff to have a further period of 14 days to respond.

Catchwords:

NEGLIGENCE – personal injury - duty of care – breach admitted - ceiling panelling collapsed onto plaintiff - C6-7 disc protrusion - chronic pain - chronic adjustment disorder with mixed anxiety and depressed mood – joint expert report - discord between expert’s opinion of appropriate treatment for chronic pain - concurrent expert evidence - disc injury - not contradicted by surveillance or by academic performance - substantially corroboration by lay witnesses - treatment undergone - ongoing pain management - CT scan - MRI’s - physiotherapy - facet joint injections - future treatment - surgical intervention - economic loss - past out of pocket expenses - superannuation loss - domestic assistance - interstate work aspirations

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 13, 15, 16;
Civil Procedure Act 2005 (NSW), s 140;
Uniform Civil Procedure Rules 2005 (NSW), r 42.34

Cases Cited:

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48;
Scott v Telstra Corporation Ltd [2018] NSWSC 309;
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Category:

Principal judgment

Parties:

Montana Smith (Plaintiff)
Carnival Plc trading as P&O Cruises Australia (Defendant)

Representation:

Counsel:
A Black SC and J Wilson (Plaintiff)
B Hull (Defendant)

  Solicitors:
RMB Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2014/305289

Judgment

1. The plaintiff, Montana Smith, claims damages for personal injury from the defendant for injuries received by her on 27 December 2011. As the defendant has at all times admitted breach of duty of care, the matter proceeded before me as an assessment of damages, but with an issue about the nature and extent of any injury received.

2. The plaintiff’s injury occurred on the high seas aboard the defendant’s cruise vessel named the Pacific Jewel. The parties agree that the contract of carriage under which the plaintiff sailed is governed by the law of New South Wales and that the plaintiff’s entitlement to damages is subject to the provisions of Part 2 Civil Liability Act 2002 (NSW) (“Civil Liability Act”).

Circumstances of the incident

3. The plaintiff was born in May 1997 and accordingly was 14 years of age when the accident happened. She was on board the ship with her immediate and extended family for a Christmas holiday cruise. On 27 December 2011, the second last day of the cruise, the plaintiff was standing in a companionway with two of her cousins waiting for a friend to join them when three ceiling panels suddenly fell hitting her on the head and left shoulder on their way to the floor. Each panel was approximately 1 metre long, 150 millimetres thick (there was no evidence of breadth) and fitted with lighting and related electrical components.

4. The plaintiff said that she was struck on the left side of her skull, towards the back of her head. She did not lose consciousness, but felt sore and shocked. She noticed a lump on top of her head and suffered immediate pain in her head.

5. She was seen by a ship’s doctor, who found a contusion on her scalp in the left parietal region. She was given head injury advice and prescribed paracetamol.

6. The plaintiff said that by the time the ship docked in Sydney Harbour she was suffering pain in the centre of the base of her neck and in her left shoulder. She described it as moderately bad and she consulted her general practitioner (GP), Dr Shabbir Haider at about 5:50 pm on 28 December 2011, in his surgery at Barrack Heights, south of Wollongong.

7. On initial examination, Dr Haider found only tenderness in the left side of the plaintiff’s neck, and in the back of her lower cervical and upper thoracic spine. Movements were recorded as being “OK” and no abnormality was detected on neurological examination. On this first occasion Dr Haider did not record any complaint of pain in the plaintiff’s left shoulder. By 3 January 2012, the plaintiff was complaining of pain in the left trapezius as well as in her neck. She was apparently referred by the doctor for physiotherapy, the first appointment occurring on 28 January 2012. She initially had physiotherapy weekly and then it reduced to about fortnightly. The plaintiff seems to have relied upon the physiotherapist for primary care of her injury as during the first three or so months of 2012 she consulted Dr Haider and other doctors in the practice about inter-current medical conditions of a minor nature without mentioning her neck. The evidence indicates that the plaintiff was continuing to consult the physiotherapist.

8. On 29 March 2012, the physiotherapist wrote to the secondary college the plaintiff attended advising that the plaintiff was undergoing treatment for her cervical spine and shoulder and that she should avoid physical activity because the physiotherapist was “concerned about the integrity of her cervical spine while playing sports.” (CB p 80)

9. The physiotherapist obviously expressed concern to Dr Haider because on 31 March 2012, he recorded that the physiotherapist was suggesting that the plaintiff undergo a Computed Tomography (CT) scan of her cervical spine. The CT scan was carried out by Dr Mark Chapman on 12 April 2012 and he reported “no significant abnormality” (CB p 81). The plaintiff continued with physiotherapy throughout 2012.

The plaintiff’s previous health and developments in 2012

10. Medical records tendered demonstrate that prior to December 2011 the plaintiff had a number of childhood medical complaints, none of which seem serious to me, or capable of confounding the consequences of the injury.

11. The plaintiff had completed Year 9 at the end of the 2011 school year. Before the accident, she was an active young person involved in many extracurricular pursuits. She: played touch football for sport; was a keen swimmer at a competitive level; participated in athletics including cross country running; and was very much engaged in dance including ballet, contemporary, tap, jazz and hip hop. Her involvement in dance occupied her for about 10 hours per week. She continued with dance after the physiotherapist had recommended a reduction in activities in March 2012.

12. The plaintiff gave evidence that after the accident she had pain every day and some days were worse than others. She said that although she continued with her dance, she could only do half of what she was used to because of pain (11.30T). She said she ceased dancing towards the end of 2012 (11.35T).

13. The plaintiff was cross-examined about her reason for ceasing dancing. A discharge referral note from Shellharbour Hospital dated 8 December 2012, forming part of Ex 2, indicated that the plaintiff had a fall onto her right hand while ballet-dancing that day. There was tenderness around the anatomical snuff box at the base of her right thumb, but x-rays did not show evidence of any fracture. Still, apparently she was treated initially with a plaster cast.

14. In cross-examination the plaintiff clarified that the fall had occurred at the last dance class of the year. She accepted that she suffered pain in her right thumb, but denied that that was the reason why she ceased her dance involvement. She accepted the injury to her right hand was such that she required medical treatment including the application of the plaster cast, followed by treatment with a crepe bandage until about the end of December 2012. Nonetheless, she maintained that she ceased her involvement with dance at the end of 2012 because she had planned to give it up anyway because of the condition of her neck (36.20T).

15. In this context it was put to the plaintiff that she frequently consulted doctors in the latter part of 2012 and the early part of 2013, without complaining of neck pain. The plaintiff maintained that she was discussing her neck pain with her physiotherapist and later with Dr Ashish Diwan, after he became her treating orthopaedic surgeon.

16. The plaintiff’s mother, Ms Karina Smith (Ms Smith) gave evidence that the plaintiff continued with physiotherapy at Barrack Heights for “quite a few months” (71.50T). She said that in 2012 she frequently complained about pain in her neck and had difficulty with dancing. Ms Smith said that “[the plaintiff] was having trouble keeping up with the other students” (72.5 - 72.12T). When asked about the incident of 8 December 2012, Ms Smith said “that was definitely not the reason that she stopped dancing” (72.20T). She explained that the plaintiff “was not as competitive as she had previously been” (72.25T). She had always planned to reduce the number of classes when she entered senior high school but the plaintiff did not want to stop dancing altogether. She said, “[b]ut unfortunately, her neck prevented her from carrying on” (72.25T). Ms Smith’s account substantially corroborates the plaintiff’s evidence, and I accept their evidence on this issue.

17. I accept on the balance of probabilities that it was the plaintiff’s ongoing neck pain that led her to cease her involvement in dance altogether, rather than simply reducing it when she entered senior high school.

Developments during 2013

18. On 21 March 2013 the plaintiff was examined by Ms Kerry O’Riley, an expert physiotherapist over a period of two hours. It is apparent from her report that there were aspects of the plaintiff’s presentation on examination that raised questions in Ms O’Riley about whether the plaintiff had become overly introspective about her condition. However, Ms O’Riley was prepared to accept there was ongoing soft tissue injury to the plaintiff’s cervical spine and left shoulder. She expressed the view that “the injury should have stabilised”, but was prepared to accept that it had persisted because: treatment had not been optimal; the injury had been superimposed upon a mild pre-existing scoliosis; and of “cognitive issues”. I understood the last category to be a reference to the plaintiff’s introspection about her ongoing injury. Ms Smith suggested a Magnetic Resonance Imaging (MRI) scan. That was not carried out until 25 September 2013.

19. It should be recalled that in 2013 the plaintiff was in Year 11. She was a dedicated scholar who was ambitious to go to university. This no doubt contributed to her introspection. In an undated medical certificate around this time, Dr Haider stated that the plaintiff had developed an acute anxiety state over a compulsory presentation to her class, giving rise to panic attacks. Dr Haider was seeking some accommodation on behalf of the plaintiff. The anxiety symptoms continued.

20. On 7 September 2013, the plaintiff saw Dr Muhammad Arslan Iqbal at the practice and complained of pain and neck spasm not responding to physiotherapy. In that doctor’s view the (plain) “x-ray [was] not conclusive” (CB p 108). He obviously thought the pain significant because he prescribed Panadeine Forte and Valium as a treatment. I infer that Dr Iqbal thought the symptoms significant and referred the plaintiff for an MRI scan which was carried on 25 September 2013.

21. The radiologist said the MRI scan of the neck showed a “small left paracentral discophytic protrusion at C6/7” (CB p 108). This lesion “does not cause any significant neural compression” (CB p 108). It was said that the “other cervical discs are unremarkable” (CB p 108).

22. The plaintiff was reviewed by Dr Haider on 26 September 2013 and in view of the “discogenic injury” shown on MRI he referred the plaintiff to Dr Diwan, an orthopaedic surgeon practising at St George Hospital.

23. I interpolate that an MRI scan of the right shoulder showed what was said to be “a longstanding unicameral bone cyst” (CB p 108). This seems to be unrelated to any injury on the defendant’s ship. There is nothing in the evidence to suggest this cyst is sinister or disabling.

24. The plaintiff first saw Dr Diwan on 16 October 2013. Dr Diwan received a history consistent with the plaintiff’s evidence before me, noted some restriction at the limit of the normal range of movement in the plaintiff’s neck and an absence of neurological deficits. He diagnosed “chronic neck pain with slight C6/7 contained herniation” (CB p 116). He also found what he described as an idiopathic adolescent scoliosis. He regarded this as an incidental finding which may warrant further investigation, but he doubted it would require any active treatment. Dr Diwan also found some tenderness in the shoulder muscles and considered the discal injury “may explain the occasional left shoulder pain that she has” (CB p 116). At that stage he considered that treatment would be non-operative involving conservative treatment in the Special Spinal Rehabilitation Unit at St George Hospital. However, he did not rule out “injections”.

25. In the meantime, the plaintiff underwent emergency surgery on 29 October 2013 for acute appendicitis.

26. The plaintiff’s neck condition seems to have been treated conservatively during the rest of 2013.

Developments in 2014

27. 2014 was the plaintiff’s Higher School Certificate (HSC) Year and she seems to have had little active treatment for most of the year. Dr Haider’s notes record that she expressed an interest in scuba diving and was disappointed when Dr Haider refused to give her a certificate of fitness, advising her that scuba diving was contraindicated for a patient with even a mild cervical disc prolapse.

28. The plaintiff saw Dr Diwan again on 12 May 2014. She told the doctor that she struggled with her examinations because of the medication she had been taking consisting of Valium and Endone. As the HSC trials were due in August, Dr Diwan suggested facet joint blocks as a better way of controlling her pain. The facet joint injections in the event were put off until after the completion of the plaintiff’s HSC. They were undertaken in January 2015. She found it to be a painful and ineffective procedure, not resulting in any reduction of her pain (18.15T). (She had told Dr Haider there had been no significant improvement: see below.)

29. In the meantime, Dr Haider referred her to a specialist in pain management, Dr James Yu, whom she first saw on 10 September 2014 about a month before the commencement of her HSC examinations. Dr Yu’s findings were similar to other specialists. The range of movement of the cervical spine was satisfactory and there was an absence of neurological deficit. However, he accepted the genuineness of the complaints of pain which he felt could have been due to the disc protrusion at C6-7 with superimposed anxiety because of her pain, and examination stress. Given that her examinations were imminent he was reluctant to put her on strong painkilling medication. He did prescribe Endep to help the plaintiff sleep at night. She was having trouble sleeping with her chronic pain. He advised an exercise regime and swimming.

30. The plaintiff consulted Dr Haider on 9 October 2014, about a week before the commencement of her HSC. He formed the view that she was suffering from “post-traumatic stress disorder due to neck injury”, he made a note to refer her to a psychologist. Her examinations were apparently in a fairly narrow temporal band commencing on 15 October 2014. When she saw Dr Yu again on 6 November 2014, he recorded that the plaintiff had finished her final exams two weeks ago. (I interpolate, this short timeframe seems improbable.) The plaintiff did well in her HSC achieving an ATAR of 90.15. She was “awarded bonus points because of (her) injury” (16.40T), which enabled her to enrol, in 2015, in the undergraduate course of her choice, namely a Bachelor of International and Global Studies at The University of Sydney.

31. On 11 December 2014 she was examined by Dr A L G Smith, Orthopaedic Surgeon, for the defendant. Dr Smith formed the view that on examination the plaintiff was exhibiting “unphysiological phenomenon in the form of a global power loss throughout both upper limbs” [sic] (CB p 320). His view at that time was that the plaintiff was not suffering any organic illness or injury, notwithstanding the result shown on the MRI scan. In Dr Smith’s view, the plaintiff may have suffered a flexion-extension injury when struck by the panel, but that had resolved. Dr Smith observed that “disc bulging is seen quite commonly in asymptomatic people” (CB p 322). He referred to epidemiological literature showing a certain prevalence of degenerative changes in the spine of the general population including persons under 20 years of age. He expanded on that material in a subsequent report of 16 November 2015. Reading both reports together, it seems that in a paper by Matsumoto et al of 497 asymptomatic subjects, for those in their twenties, 17 per cent of the males and 12 per cent of the females were found to have disc abnormalities. I infer that the study showed no incidence of degenerative disc abnormality in those under 20 years of age.

32. In a second paper by Powell et al, 302 women aged between 16 and 80 years without a history of spinal problem were examined by MRI. Of the 29 patients aged less than 20 years “6 per cent had a degenerate lumbar disc” (Powell et al p 1351). (Emphasis added.)

33. Whatever the force of these two studies, neither demonstrated a prevalence of cervical disc degeneration in persons under 20 years of age. And at the time of the cervical MRI scan showing the C6-7 lesion in September 2013, the plaintiff was only 16 years of age.

34. In his report of 8 March 2018, Dr Diwan addressed Dr Smith’s concerns. Dr Diwan thought the real difference between the experts was one of interpretation. He did not regard the signs recorded by Dr Smith as indicative of manufactured physical signs. Rather he regarded the plaintiff’s presentation as “quite consistent with chronic pain and maybe because of the pain or just the perception that a movement is likely to cause pain” (CB p 242). In Dr Diwan’s view, the plaintiff was “too young to label those changes as arthritic yet” (CB p 243). Given her age at the time of the 2013 MRI scan and the history of trauma in 2011, Dr Diwan regarded the 2013 scan as demonstrating a “contained herniation at C6-7” which was well visualised (CB p 243). I take it he means it could be seen clearly. There was a later scan in 2017 to which I will return.

Did the plaintiff suffer a disc injury?

35. Now might be a convenient time to deal with the question of the nature of the injury suffered by the plaintiff, even at the risk of interrupting the narrative.

36. There are a number of evidential issues involved in the resolution of this question. They are: the consideration that the plaintiff was very substantially corroborated in her complaints by a body of lay evidence; what the defendant would say are the objective facts of her success at school and University and her ability to undertake substantial part-time work and split shifts as a waitress, sometimes at two restaurants; and the difference of opinion between Dr Diwan and Dr Smith.

37. Concerning corroboration, I heard evidence from Mr Brendan Gades, a school friend of the plaintiff. He said that the plaintiff was very committed to her learning and determined to achieve her goals. He gave evidence that after 2011, the plaintiff frequently complained of symptoms in her neck and he noticed that she would be upset or uncomfortable when she was in pain. Currently they speak on the phone two or three times a week and see each other once a week. She still complains of neck pain. Mr Gades was not challenged significantly about this evidence other than to elicit from him the evidence that there have been times when he has been with the plaintiff when she has not complained of neck pain.

35. Evidence was given by Elaine Lau, a university friend of the plaintiff who went on exchange and lived with her to Lyons, France in 2017. Ms Lau said that the plaintiff complained to her of neck pain. After the completion of their exchange they had planned to travel together in France but “we had to cut it short due to her neck injury” (61.05T). The plaintiff complained the backpack she was carrying was causing pain in her neck. She did concede that they shared the housework when they flatted together in France.

36. Evidence was also given by a Ms Emma Steele. They had attended the same school, but had not been friendly at school. They got to know each other after the plaintiff commenced working in the Hog’s Breath Café in 2015. Shortly after the plaintiff’s commencement there, Ms Steele was promoted; becoming the plaintiff’s manager. She was aware that the plaintiff had “some issues in relation to her neck” because the plaintiff had spoken to her about it. Ms Steele had also observed the plaintiff to have some difficulty with tasks at work, mainly the heavier work required to be performed at closing time. This involved “putting the back of the chairs up, cleaning the tables, mopping the floors … as well as lifting things” (63.40T). Ms Steele said “she struggles … because of the injury” (63.45T). She noticed that she had to be careful (63.45T). Because of her appreciation of these issues, Ms Steele did not roster the plaintiff to perform that work from about September 2017 “purely because of the pain in her neck” (64.10T). Ms Steele regarded the plaintiff as “a very good worker” (65.20T). In cross-examination, Ms Steele accepted that she was dependent upon the reliability of the plaintiff’s complaints in assessing her. She also said that because of the number of staff on the books, it was only usually necessary to roster a staff member on for a closure “once a month or so”. Ms Steele said she tried to cater for issues other staff may have had as well (68.10T).

37. Ms Smith’s evidence was also corroborative of her daughter’s evidence. I have already referred to what she said about the reason why the plaintiff stopped participating in dance. She confirmed that the plaintiff continued to complain of neck pain and that her mood had changed, stating, “[s]he wasn’t as happy go-luck as before, because she was constantly in pain” (72.50 - 73.5T). When asked whether she had ever seen anything to suggest the plaintiff exaggerates the discomfort that she experiences in her neck, Ms Smith said, “no, quite the opposite” (76.25T).

38. I was also shown surveillance footage of the plaintiff’s activities (Ex 1). The activities depicted showed the plaintiff driving a motor car confidently and at times displaying what seemed to be a good range of neck movement. There was also footage exposed of the plaintiff performing her work as a waitress at the Hog’s Breath Café. This demonstrated her performing what might be regarded as a full range of work performed by staff waiting on tables. At one stage when clearing a table she is seen to stand holding a number of dinner plates in a stack that she had cleared from the table while she chatted with the patrons. I must say, I did not think there was anything shown on the surveillance tapes which was inconsistent with the evidence otherwise led in the case. No doctor recorded any obvious restriction in the range of cervical movement. To that extent, what is shown of the plaintiff driving, looking over her shoulder, as appropriate, was not inconsistent with the medical evidence. Likewise, the work performed as a waitress was not inconsistent with her evidence in court or the account given to doctors. In particular, she was not shown to be doing the type of work that Ms Steele said was involved in closing up. I appreciate that Ms Sue Borthwick, the defendant’s occupational therapist, reduced her assessment of the plaintiff’s need for assistance when performing domestic duties upon viewing the surveillance footage, but I will return to that matter when dealing with the appropriate head of damage.

39. The plaintiff underwent a further MRI of her neck on 24 August 2017 at the request of Dr Diwan. Other than a loss of the normal cervical lordosis and some minimal desiccation of the discs at C2-4 (not relevant here), no disc bulge or other lesion is shown. In his report of 24 August 2017 to Dr Haider, Dr Diwan said the disc that had been bulging in 2013 “is now absorbed and healed” (CB p 224). In his view discal injury in young people “has the potential to repair and regenerate” (CB p 224). He said, “I think that is [a] reasonable finding in someone who is 20 years old” (CB p 224). He went on, however, to say (CB p 224):

“However interestingly it is the functional x-rays which are a give-away because her most recent flexion and extension x-ray shows segmental kyphosis at C6-7 with decrease in disc height anteriorly indicating the healing of that disc, which has left the disc stiff rather than visco-elastic.”

He remained of the view he had previously expressed (see Dr Haider’s Report dated 30 November 2016) that the plaintiff may yet be a candidate for surgical replacement of the C6-7 intravertebral disc with a prosthetic disc which “…could be reasonably necessary to recreate motion at that segment” (CB p 224). He had some reservations about performing the surgery on one as young as the plaintiff.

43. Notwithstanding what Dr Diwan had said about the resorption of the protrusion and healing of the injured disc, he was of the view that absent surgery, the plaintiff would continue to have “pain manifestation type of symptoms”, even in the absence of compression of the nerve root (CB p 224). He thought the plaintiff’s symptoms would wax and wane. He also advised “that the surgical intervention should always be considered when the cloud of any litigation is completely removed and at least two to four months of quarantine after such events are completed” (CB p 224).

44. In a report of 17 January 2018, he continued to express the view that the plaintiff had a chronic injury which he diagnosed as “chronic contained herniation of nucleus pulposus at C6-7, since 2013” (CB p 240). Absent surgery, Dr Diwan said the plaintiff’s symptoms will continue.

45. In his report of 28 September 2017, Dr Smith accepted that the plaintiff’s history suggests ongoing symptoms of neck pain which are not getting any better. Dr Smith seemed to agree with Dr Diwan that there is “not much in the way of movement at all at C6-7” (CB p 328). He thought there was more movement shown in the discs above C6-7 with flexion-extension. He made it clear he was not a supporter of disc replacement surgery and that such a procedure does not do “anything much about arthritic changes in the spine” (CB p 328). He regarded the abnormalities in the plaintiff’s cervical spine shown on the MRI scan as “constitutional abnormalities” (CB p 330). In his report of 8 March 2018 Dr Diwan joined issue with Dr Smith.

46. Drs Diwan and Smith conferred on 15 March 2018 and produced a joint report dated 19 March 2018. They both agreed that the plaintiff did suffer an injury to her cervical spine on the Pacific Jewel in 2011. Dr Smith thought it a soft tissue injury to her neck, perhaps involving an exacerbation of previous asymptomatic degenerative disc disease. Dr Diwan adhered to his view that the plaintiff suffered an injury to the C6-7 disc. Dr Smith agreed that the 2013 MRI scan showed a posterior annular bulge at C6-7, but in his view it was degenerative and not post-traumatic. Dr Diwan expressed the view that the functional x-rays, as I have said, demonstrated a kyphosis at C6-7. It was his view that there is a significant mechanical derangement at that level.

47. The experts gave concurrent evidence before me on Wednesday 28 March 2018. In evidence Dr Smith accepted there was a kyphosis, which involved a straightening of the normal cervical lordosis and a slight forward tilt of the vertebral body of C6 on C7 (102.25 - 103.5T). This could result from “muscle spasm as a protective mechanism”, but not necessarily (101.15T). He adhered to the view, having regard to the overall appearance of the cervical spine that the plaintiff that the changes shown are a degenerative process.

48. While I was ruling on an objection, the experts had a discussion amongst themselves not recorded on the transcript and agreed that the recent x-rays showed some narrowing of the disc spaces at C4-5, C5-6 and C6-7 (105.20T).

49. Dr Smith explained that he was not in favour of disc replacements because he did not regard the disc themselves as a source of pain, and accordingly the results were disappointing (106.30T). In his view it is the bony joint containing the disc which causes the symptoms. Dr Diwan disagreed, saying that new epidemiological evidence published in Lancet on 23 March 2018 polling the opinion of “20 of the top-most back pain scientists” (107.35T). These experts nominated the disc as a potential source of chronic pain, which Dr Diwan regarded as consistent with his own experience in clinical practice and the view he had formed of the plaintiff’s case. It is important to record here that Dr Smith said that if he had thought the plaintiff had significant symptoms at C6-7 then, at her age, he would perform a single level anterior spinal fusion in preference to a disc replacement (112.5T). In a person of more mature years he would consider a two level fusion.

50. When pressed by Mr Black SC for the plaintiff about whether it was his view that there was nothing wrong with the plaintiff (115.45T), Dr Smith said:

“Look from a practical point of view, yes. I mean, I’m aware she’s got those degenerative changes but I don’t think they’re causing enough symptoms to warrant it so, therefore, she’s within normal limits”. (Emphasis added).

Black: But according to what she has told you and others, she’s in neck pain. She has pain in her neck on a continual basis, varying in intensity. If that’s correct, then you will accept that she’s got something wrong with her.

…

Witness Smith: If that was correct, I would accept that, yes.”

I understood “it” to mean surgery.

51. A report of Dr Gerard Barold, a specialist in occupational medicine dated 16 November 2015 is also in evidence. Dr Barold accepted that the 2013 MRI scan was suggestive of a C6-7 disc injury. He thought the history of injury on the Pacific Jewel was consistent with that injury. He also considered that as at 2015, about 4 years after the accident, that she had “reached maximum medical improvement and has stabilised” (CB p 68).

52. It’s quite clear from the concession made by Dr Smith in evidence that his view is that if one accepts the reliability of the plaintiff’s history there is pathology that accounts for her ongoing symptoms which would justify surgical treatment, just not of the kind preferred by Dr Diwan; the critical question is whether one accepts what the plaintiff says.

53. Acknowledging the evidence that not everything in the plaintiff’s clinical presentation is consistent only with C6-7 discal injury, I accept the truth of the plaintiff’s account of her symptoms and disabilities, strongly corroborated as it is by the other lay witness. I do not accept that her account is contradicted by the surveillance or by her satisfactory performance at school and University. It is clear that so far as work is concerned, from Ms Steele’s evidence, which I accept, there are activities she cannot perform without exacerbation of her pain. In effect she has been relieved from performing some of the heavier aspects of the waitressing job.

54. It is also clear, both at school and University, that the plaintiff has received dispensation from the ordinary requirements because of her ongoing disability. I have already referred to the evidence about the awarding of bonus points after her HSC to enable her entry to University. Exhibit A3 demonstrates that during her time at university she received particular consideration through The University of Sydney’s Disability Services Academic Plan. Her success at University in obtaining her degree, commendable as it is, does not contradict her evidence about her disability.

55. I prefer Dr Diwan’s opinion to that of Dr Smith that the nature of the injury is a discal injury to the C6-7 level, albeit not one causing nerve root impingement. I prefer this opinion essentially because the epidemiological evidence that Dr Smith referred to does not support the presence of degenerative disc disease in the cervical spine of persons under 20 years of age whatever else it may show. It may be, given Dr Smith’s explanation about the appearances on the 2017 MRI scan that there are some constitutional anomalies in the plaintiff’s cervical spine. But I accept Dr Diwan’s opinion that the kyphosis involving the loss of lordosis and the tilting of the vertebral body of C6 on C7 is evidence of the ongoing discal injury at C6-7, even if the small protrusion previously shown has been resorbed. And that this is the source of the plaintiff’s chronic pain.

56. I should say that the plaintiff presented somewhat shyly when giving evidence. This made her a little less articulate than one might have expected of a university graduate. However this was entirely understandable in a young person of 21 years of age engaged in the completely foreign task for her of giving evidence in court for the first time.

57. Moreover, I was impressed by what her mother and the other lay witnesses said about her high motivation academically and in her waitressing work. It was telling of her personality type that she told Dr Barold that she was glad to have then recently obtained the waitressing work “because it is good to work” (CB p 63). This attitude says something about the plaintiff. I did not think her a person to manufacture symptoms or signs. I have no difficulty in accepting her as a witness of truth.

2015 developments

58. Having made that crucial finding I think it sufficient to deal with my continuing narrative succinctly. Dr Haider referred the plaintiff to a clinical psychologist, Dr Steven Dragutinovich at the end of 2014. Dr Dragutinovich diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. This had developed as “reactive to chronic cervical region pain” (CB p 60). He recommended psychological treatment for a further two years. And, indeed wrote reports in support of her continuing to receive support at University. However, the plaintiff did not find the treatment very helpful and did not continue for the full period. I formed the impression she was not comfortable with the treatment.

59. As I have already remarked, she underwent bilateral C6-7 facet joint injections in January 2015. She told Dr Haider that she did not have a significant improvement from that treatment. This is confirmed by her mother who thought the treatment ineffective.

60. She commenced university on 2 March 2015 and continued to see Dr Yu for pain management. Apparently there was a multi-disciplinary meeting of the various professionals managing the plaintiff’s condition on 4 March 2015 which noted the failure of a series of non-operative care options including spinal injections, medications and ongoing physiotherapy. The genuineness of her complaints was not doubted.

61. Following the multidisciplinary meeting, the plaintiff and her parents saw Dr Diwan again on 23 April 2015 and he suggested further radiological investigations. A further MRI was carried out on 14 May 2015. At C6-7 it showed a “small disc protrusion unchanged or slightly smaller compared to the previous” the MRI scan (CB p 175). Other tests were essentially normal apart from plain x-rays showing “small vestigial C7 ribs” (CB p 176).

62. When the plaintiff saw Dr Diwan again on 4 June 2015, he advised that he remained of the view that the likely cause of her pain was the C6-7 chronically herniated disc. He then thought that it may be reasonable for her to consider disc replacement surgery. Dr Diwan did not push the idea. Given her age he thought it equally reasonable for her to decide not to undergo the operation. The plaintiff decided to undergo the surgery and was placed on a waiting list as a public patient. Notwithstanding what he has written I garnered the impression that in 2015 Dr Diwan was in two minds about the advisability of the surgery.

63. In September 2015, the plaintiff underwent an Electroencephalography (EEG) for symptoms of blurring vision, headache and spasms in her arms. The reading was mildly abnormal possibly due to the psycho-active medications she had been taking as prescribed.

64. Dr Diwan placed the plaintiff on the waiting list for the disc replacement surgery on 20 October 2015, although in evidence the plaintiff said she was “cautious” (21.36T). She regarded surgery as her last option, by which she meant the last option available to her all else having failed to provide a cure.

65. In late 2015 she started work at the Hog’s Breath Café and was also performing other shifts at El Corazon Restaurant. The applicant successfully completed the first year of her University course.

Developments from 2016 to 2018

66. The plaintiff saw Dr David Serisier, a Neurologist on 28 February 2016. On clinical examination he formed the view that the plaintiff “may have a significant disc protrusion which has persisted through (the) last four years and is very unlikely to improve” (CB p 197). However, upon reviewing the MRI scans, he altered his position somewhat. While her presentation was highly suggestive of focal problems, he thought the pathology shown on the scan was “relatively benign” (CB p 198). He was not keen on surgery. He wrote directly to the plaintiff, separately from her GP, advising that “the impetus to surgery is far less” than he thought on clinical signs (CB p 199).

67. The plaintiff was seen by Dr Diwan on 5 May 2016. Dr Diwan reviewed Dr Serisier’s reports. He explained to the plaintiff and her parents that it is not uncommon in young individuals for disc herniation to show resolution, given the healing potential enjoyed by the young. It seems there may have been a misunderstanding at this consultation because Dr Diwan came away with the impression that the plaintiff had decided against surgery. He cancelled her place on the waiting list.

68. In evidence the plaintiff said this was a misunderstanding. She said her attitude was that she didn’t want to have surgery then while she was still attending university. I infer she did not wish to delay, or interrupt her academic progress (22.10T; 42.4T).

69. The plaintiff had a minor injury to her right hand at work in August 2016, but otherwise continued with her part-time work and to attend university.

70. The plaintiff’s condition seems to have plateaued during 2016 and 2017. She saw Dr Diwan on 30 November 2016. And as I have previously, recounted in the first semester of 2017 attended Univeristé Jean-Moulin in Lyons as an exchange student. I have already summarised the difficulties she experienced while away from home. She returned to Australia early in the second half of 2017 and on review with Dr Diwan on 10 August 2017. He recorded the history that she had to abandon her plans to travel through Europe because her neck pain continued to bother her. On this occasion, he found tingling and numbness in the C7 distribution on the right side. This finding was consistent with some of the findings made by Dr Serisier.

71. It was following the August 2017 consultation that the further MRI was taken which suggested, as I have recounted that there had been a resorption of the disc protrusion. Dr Diwan then discharged the plaintiff from his care (46.50T). The plaintiff said that this was because Dr Diwan was not prepared to operate until the litigation was concluded. This was the period Dr Diwan referred to as “quarantine” (111.05T). In the plaintiff’s words, “he wanted me to be in a good mental headspace to go and have the surgery” (24.30T).

72. Having completed her university degree, the plaintiff is taking a gap year in 2018, as apparently she had always planned to do. She continues to work more or less full-time in split shifts, on the restricted basis I have described, as a waitress. It is her intention to follow in her mother’s footsteps to make a career as a professional in the Commonwealth Public Service. She is hoping to commence in 2019. Given her qualification she is hoping for a position in the Department of Foreign Affairs and Trade. I rather formed the impression that she would not necessarily be choosy about the position she was prepared to accept. To pursue this career option, if accepted, she will need to move to Canberra and live by herself in an apartment.

Damages for non-economic loss

73. The plaintiff was born on 9 May 1997 and she has just turned 21 years. According to the medium life expectancy tables she has a life expectancy of 68 years. It is expected that on current law her retirement age will be 46 years away at age 67.

74. The injury occurred six and a half years ago. I accept that she suffered a discal injury at C6-7 which is an injury of a permanent type which yet may well require surgical intervention. I accept she has ongoing pain which fluctuates in severity and which interferes with the normal activities of her life including the principal hobby of dance and other sporting activities.

75. Although she has done well in life so far, I accept that it has not been easy for her and that she has needed help and consideration to achieve what she has so far. Doubtless her own determination is a credit to her.

76. She has undergone extensive conservative medical treatment including the facet joint injections which were, I accept, painful. Although treatment is intended to be curative, the conservative treatment has done no more than maintain her symptoms more or less on a tolerable plateau.

77. I accept that she has emotional and psychological symptoms and that she has suffered what Dr Dragutinovich diagnosed as an adjustment disorder. Chronic pain understandably has a negative impact on one’s mood and I think that is evident in her case. As Dr Diwan explained this may account for what Dr Smith (and Ms O’Riley) regarded as unphysiological signs.

78. She may well undergo further pain and discomfort through surgery from which she will doubtless take some months to recover. If the plaintiff has the surgery, a point I will deal with below, she has on Dr Diwan’s assessment good prospects of an improved outcome – as high as 80 per cent. He rather bullishly assessed the downside as an 18 per cent chance of staying the same, and 2 per cent of getting worse. There is a very small risk of a catastrophic outcome which he assessed as about 1 in 10,000 (111.5-111.45T). It would be speculative to take into account such a small risk.

79. I must say, I do rather regard Dr Diwan’s prognostication as “bullish”. One accepts that surgery is intended to be curative of the patient’s symptoms but I think it behoves me to be somewhat conservative in my approach to it. It is necessary to take into account that the plaintiff may yet decide against having surgery. Although Dr Diwan seems keen now I do not read his reports as expressing the same enthusiasm. Moreover, if the plaintiff has the operation (as she says she will), the outcome may not be as pleasing as she hopes for. There is a strong chance that however technically successful the surgery, the plaintiff will be left with ongoing neck symptoms even if they are somewhat improved. The chance that her pain will be worse, small as that may be on Dr Diwan’s assessment, is not so small that it may be overlooked. In my view the chance of a complete and permanent cure is the least likely of the range of possible outcomes.

80. In my view the plaintiff is likely to experience an ongoing level of neck pain, waxing and waning throughout her life. The frequency of her symptoms and their severity is likely to worsen as this young person ages. She will continue to be subject to a degree of psychological symptoms in response to her pain. And she will be unable to engage in the full range of activities at work and play that she would have enjoyed but for the negligence of the defendant. In short she will continue to experience pain and suffering, loss of enjoyment of life and loss of the amenities of life now and in future.

81. Mr Hull, for the defendant suggested that if I accepted the plaintiff had ongoing symptoms, I should assess her level of non-economic loss as 29 per cent of a most extreme case resulting in an award of damages under this head of $110,500. Mr Black submitted that the range was 30 to 35 per cent, given the plaintiff’s youth, and that 33 per cent was an appropriate award. There is not much between counsel, of course, but Mr Black’s submissions better accords with the view I have formed overall as I have explained above. I assess damages for non-economic loss under s 16 Civil Liability Act at 33 per cent of a most extreme case, entitling the plaintiff to damages in the sum of $202,000.

Past out of pocket expenses

82. These are agreed at $8,131.13.

Future out of pocket expenses

The future cost of surgery

83. It is convenient to commence with the question of what allowance should be made for the chance of future surgery. Both Mr Black and Mr Hull submitted that I should approach this as though it were a matter of virtual certainty. These submissions appear to be premised on the approach explained by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 (“Malec v JC Hutton”) at 643:

“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high and regarded as certain or very low and regarded as mere speculation. Nevertheless, the Court will take that potential of the hypothetical occurrence into account when assessing damages.”

84. These submissions relied upon evidence of the plaintiff and of her mother, Ms Smith, that strongly suggested the plaintiff was determined to have the surgery, and the consideration that both Dr Diwan and Dr Smith were of the view that if one accepted the plaintiff had the symptoms of which she complained, notwithstanding her youth, or perhaps even because of it, they should be treated surgically. The doctors differed, as I have said about the appropriate procedure. Dr Diwan opting for the disc replacement procedure and Dr Smith, a spinal fusion at the affected level.

85. The plaintiff’s evidence to which I have referred is that she intends to undergo the surgery essentially because she feels all conservative measures tried so far have failed. She has put the surgery off because she wanted to finish University first, as she now has, and Dr Diwan wanted to quarantine the surgery from the litigation. In answers to questions I asked (55.40T - 56.35T), the plaintiff said that she was expecting the surgery to reduce her pain level so she could do more. She seemed to have an understanding about the nature of the procedure, but she could not remember what Dr Diwan had said about the chance of success. She did say that she was going to have the surgery because she saw it as “a quality of life issue” (56.15T). She expected she would have some remaining limitations, but not as many as now. She did not remember what she had been told about the prospect that she may be worse off having the surgery except, “It’s not that big” (56.30T). She feels that the “pros outweigh the cons” (56.35T).

86. Ms Smith acknowledged that Dr Diwan had advised the family that there was a prospect that there was a prospect that the plaintiff would be worse off after the surgery, that is to say, that it may not be successful. She could not recall what percentages Dr Diwan ascribed to possible outcome (81.40T). She understood his advice to be that there was a prospect that the plaintiff would be pain free. Although she could not remember how he evaluated the chances, she said “it seemed good enough that my daughter believes that that’s a chance that she’s willing to take” (82.5T).

87. I have already referred to Dr Diwan’s evidence. I remain of the view that his assessment was “bullish”. Whether or not that bullishness is fully justified, his report of 30 November 2016, gave a timeframe for the performance of the surgery as (sometime) “over the next 5 to 10 years if she chooses to proceed” (CB p 212). At that time, he thought surgery “a reasonable thing”. Depending on the pathology at the time of the surgery, stabilisation could take the form of either a fusion or disc replacement (CB p 212). In his report of 24 August 2017, he thought disc replacement “could be reasonably necessary” (CB p 224). But added, “having said that, when somebody who is 20 years old who lacks any evidence of neurological compression, this can be equally considered unreasonable” (CB p 224). Nonetheless, he was still prognosticating that the plaintiff may “come to surgical intervention in her future years whether it is in the next five years, ten years or twenty years is extremely difficult to predict” (CB p 224). In his final report of the 8 March 2018, he said (CB p 243):

“Finally, in terms of whether disc replacement is indicated or not, while I agree that based on current established recommendations, there is no indication to perform the disc replacement and I have made this amply clear and it is the patient’s own choice not to proceed with a disc replacement. However, it would be unfortunate to make a prediction that she would not require surgical intervention in the future. It is my opinion that if her symptoms continue unabated after she has completed all her medico-legal proceedings, that it may be worthwhile revisiting that issue. The only relative contraindication would be her young age. The indication to perform the surgery referring to Dr Smith’s mention about arthritic changes will not be the reason to proceed with surgery as she is too young to label those changes as arthritic yet; however, as Dr Smith agrees that the C5-C6 and C6-7 disc both can become a symptomatic in the future for majority of people in Ms Montana Smith’s case it appears that will be much sooner than later as a consequence of the injury to the C6-7 disc that she had sustained in the stated motor vehicle accident” ([sic] original syntax).

88. Overall, I would not read Dr Diwan’s written opinions as expressing whole-hearted enthusiasm for performance of the surgery now. Moreover, it seems there has been a disconnect or misunderstanding between Dr Diwan’s restrained or conservative approach and the understanding that the plaintiff and her mother have garnered from his advice. There evidence suggests that there was a misunderstanding in August 2017 when the surgery was cancelled; the plaintiff thought it was merely being postponed, not put off indefinitely. The plaintiff and her mother seem to have latched on to his bullishness about the prospects if the surgery is in fact undertaken, rather than the questions he has raised about whether it should be undertaken now. I reiterate that Dr Smith’s experience with disc replacement is different from Dr Diwan’s although this could possibly be a generational difference between these orthopaedic surgeons.

89. At the end of the day whether the surgery is undertaken will depend more upon whether the plaintiff wants it done than on any objective assessment of its advisability that may be made by me.

90. As I have already made clear, doubtless with needless repetition, with great respect to Dr Diwan, I have reservations about whether his bullishness is entirely appropriate, not the least because of Dr Smith’s reservations. I accept, logically, if the pain is coming from the disc, and it is removed or replaced, the elimination of the source of the pain should eliminate the pain. But my impression from the evidence is that things are not so simple.

91. I evaluate this question on the basis that the chance of the plaintiff undergoing the surgery is greater than not. But given time for reflection after the completion of the proceedings and with her future ahead of her, her apparent present certainty may waver or dissolve. In my judgment there is about a 60 per cent chance the plaintiff will undertake disc replacement surgery within the next 6 months. If not, it is impossible to say when.

92. There is conflicting evidence about the likely cost of the surgery. In his report of 30 November 2016, Dr Diwan said “depending on the type of surgery (more than likely disc excision and stabilisation) the cost may vary from anywhere between $20,000 to $30,000 or so” (CB p 212). The defendant has relied upon this to submit I should treat the advent of surgery as certain and allow $25,000. However, in a letter dated 28 August 2017 under the hand of Nerida Grewal, Registered Nurse, the clinical nurse co-ordinator at The St George Hospital Spine Service, a much more detailed breakdown is given for the procedure - cervical total disc replacement – one level. The costed items provided by Sister Grewal totalled $53,367. There were other significant un-costed items including the anaesthetist’s fee and post-surgical reviews including x-rays at the time of three of the four necessary surgical reviews in the two years after the surgery.

93. I record that Sister Grewal allowed $19,000 for the prosthetic device. However, there is in evidence a written quote dated 29 August 2017 from De Puy Synthes, a division of Johnson & Johnson for a Prodisc C-Vivo disc arthroplasty in the sum of $6,638.18. I take this to be a quote for the prosthesis. Reducing Sister Grewal’s figures by about $12,000 to account for this, brings the subtotal to $41,000. Making some allowance for the anaesthetist and surgical follow up post-surgery, I estimate the cost of surgery to be $45,000. Allowing a 60 per cent chance, I will allow $27,000 for the prospect that the plaintiff will have disc replacement surgery within six months of the date of my judgment.

Other future costs

94. Other amounts claimed for future out of pocket expenses include GP attendances, reviews by a spinal surgeon, ongoing physiotherapy, radiology, medication, psychological care and curative aides and equipment. Many of these are disputed.

95. Other than perhaps to assist in rehabilitation following surgery, for which I have already made an allowance according to Sister Grewal’s estimations, Drs Smith and Diwan agreed that there is no ongoing need for physiotherapy regardless of the benefit the plaintiff may feel she derives from it (121.42-121.50T). I think I must be guided by the medical experts and I will not make any allowance under that head.

96. The defendant disputed the need for further psychological counselling, relying upon the plaintiff’s evidence that she did not feel she had benefited much from the treatment afforded to her by Dr Dragutinovich and a comment by Dr Diwan in his report of 5 May 2016 that the plaintiff “is quite robust psychologically”. Doubtless her robust psyche is a necessary precondition for successful spinal surgery, but the evidence before me suggests that her injury and her limitations have affected her psychologically. But there must be a reasonable limit imposed. I would allow $2,000 for ongoing psychological therapy over the next two years.

97. I have already made an allowance for post-surgical radiology in estimating the cost of surgery. I will allow the further sum of $1,000 lest other as yet unpredictable investigations are necessary in the years ahead.

98. I certainly think it reasonable that the plaintiff consult a general practitioner if mainly for the purpose of obtaining renewed prescriptions for medication to address her pain. Even assuming a very good outcome from surgery, there is likely to be ongoing pain, even if of a lesser level, which may require prescription medication. The plaintiff has claimed four consultations with a GP at $70 per consultation which capitalises at $5,050. $1,000 per annum is claimed for medication, capitalising on the 5 per cent tables at $19,821. Many prescriptions can be issued with five repeats so that a consultation with the GP every six months seems more reasonable. I will allow $2,250 for consultations with the GP.

99. Medication is somewhat problematic. Successful surgery would likely reduce the need for it, especially the need for prescription medication and in any event given her age, it is likely that attempts would be made to manage her pain, as has been attempted in the past, with exercise programs and other lifestyle changes. I think the best I can do is to allow a buffer in respect of that claim which I would assess at $10,000, which may seem disproportionately high to other allowances. However, the plaintiff has only just turned 21 and is likely to have a long life ahead of her. I am of the view that she will continue to have some level of pain, probably on a permanent basis, even if surgery which can justly be called successful is undertaken.

100. The sub-total so far under this head is $42,250.

Attendant care services

The evidence of the occupational therapists

101. Before dealing with the claim for curative equipment, I think it necessary to say something about the evidence of the occupational therapists as this was dealt with in some detail in Mr Hull’s submissions.

102. The plaintiff advances a claim for damages for the accident created need for the provision of attendant care services, including gratuitous services to which s 15 Civil Liability Act applies. For this reason, evidence was tendered from two occupational therapists, being Kathy Lyons for the plaintiff whose report is dated 23 October 2015 and Susan Borthwick for the defendant who provided two reports. The first is dated 23 April 2017 and the second dated 22 March 2018. The second report deals with her review of the surveillance videos relating to activities on 8 and 22 December 2017 and their effect on her previously expressed opinions. On that same day, Ms Borthwick and Ms Lyons conferred and produced a joint report, signed by Ms Borthwick on 26 March 2018 and by Ms Lyons on 27 March 2018.

103. I bear in mind the requirements of s 15 Civil Liability Act to the effect that, so far as gratuitous attendant care services are required, there must be a reasonable need for the services, which has solely arisen because of the plaintiff’s injury and would not have otherwise been provided. Moreover, there are threshold requirements that the services must be provided for at least six hours per week and for a period of at least six consecutive months.

104. Difficulties arose in the present case because at the time of the injuries, the plaintiff was a young teenager and there was an expectation that she would have been dependent upon her mother (and, of course, her father) for the provision of gratuitous services in any event. This expectation, or assumption, is rather undermined by the evidence of Ms Smith, a professional, working mother who explained that it was the practice in her home that each family member had an obligation to contribute to household duties. The plaintiff was relieved from this obligation only because of her injury. The duties that the plaintiff would have been expected to perform involved washing up for the whole family (there is no dishwashing machine in the home) and looking after her own room. In any event, Ms Borthwick’s basic opinion was founded on the assumption that Ms Smith would provide all household services anyway.

105. I am therefore of the view that Ms Borthwick’s assumption is fallacious and that rather undermines the whole of her opinion in relation to gratuitous care. On the other hand, the assessments made by Ms Lyons seem to take insufficient account of the ordinary provision of parental care to young teenagers, even when both parents work.

106. I should also say that I do not accept that the video, the subject of Ms Borthwick’s report of 22 March 2018 demonstrates that the plaintiff is of full capacity. This is undermined by the consideration that Ms Borthwick has not had the benefit of the evidence of Ms Steele as to the plaintiff’s restrictions in the workplace. Ms Borthwick also suggested that the plaintiff’s mother was holding her back (CB p 411). I do not agree. I was impressed by Ms Smith as a very sensible person. I thought she was realistic in assessing the plaintiff’s restrictions. The overall impression I have from Ms Smith’s evidence is that the plaintiff was not fit for the full range of activities of an injury-free young adult and, if I may put it this way, ‘something had to give’. By allowing her leeway in some areas she was better able to attend to essential tasks including studying and going to work. The family seemed to share the same work ethic.

101. Having made these findings, I record that following the evidence, the plaintiff reduced the extent of her claim. So far as past domestic assistance is concerned, the claim is for six hours per week from the date of accident to the end of 2014. This is because a substantial part of the claim relates to additional transport provided by the plaintiff’s parents having regard to the effect of her injury, including but not limited to the additional need to attend doctors, physiotherapists and specialist practitioners in Sydney. So far as the future claim is concerned, it is now limited to paid assistance on a modest basis on the premise that the plaintiff will, when she moves to Canberra for work, live alone and the heavier household tasks will be beyond her if she is working full-time.

102. When the occupational therapists met in conference they did agree that extra allowance should be made in relation to transportation, but Ms Borthwick restricted this to the 12 month period immediately following the accident. On my review of the evidence, this seems arbitrary. If anything, there was a greater need for treatment in and after 2013 when the first MRI scan disclosed a disc lesion, the plaintiff was referred to the St George Spinal Unit and underwent multidisciplinary pain management including from Dr Yu. Ms Lyons maintained her previous assessment, but agreed that “6 hours per week was reasonable for transport” (Joint Conclave of Occupational Therapists, 22 March 2018, p 1). Ms Lyons would have reduced the care from 22 November 2016 based upon her acceptance of Ms Borthwick’s opinion as to functional capacities at that time, which was the date of the latter’s assessment.

103. So far as past attendant care is concerned, I regard the amount claimed by the plaintiff to be reasonable. Doubtless the need for extra “ferrying” to appointments fluctuated from time to time as symptoms ebbed and flowed and as the intensity of treatment varied. But having regard to the impression I have from the plaintiff’s evidence and the evidence of Ms Smith, I am satisfied that the provision of services reasonably necessitated by her injury alone did not dip below six hours per week during the period of three years following the injury. I accept that absent the need for additional transportation being satisfied by the plaintiff’s mother, it’s difficult to be satisfied on the balance of probabilities that other services provided would have exceeded six hours per week. I observe, however, that the plaintiff washing up by hand for her family may well involve as much as an hour a day. But I will admit the claim as reformulated and allow six hours per week for three years and allow $25,272.

Future attendant care

110. Having seen the video, Ms Borthwick maintained her assessment of 26 hours per year for heavy spring cleaning type activities up until 22 December 2017. Thereafter she said no further care is required because on the basis of the video the plaintiff is fully fit for all household duties. Ms Lyons does not agree, but is prepared to accept Ms Borthwick’s assessment of 22 November 2016 indicated significant recovery. Ms Lyons would allow car washing monthly; heavy cleaning, up to one hour per fortnight; and spring cleaning of 24 hours per annum. This, of course, does not cross the intensity threshold for future voluntary assistance under s 15 Civil Liability Act.

111. As I have said, I do not accept Ms Borthwick’s assessment but as no claim is now pressed for voluntary future care, it is unnecessary for me to assess the evidence in greater detail.

112. I accept Ms Lyons’s view about what the plaintiff will require by way of ongoing regular assistance. And I accept future paid assistance is appropriate. Her family will not be nearby to provide voluntary assistance in Canberra and she will need to pay for assistance if only from a casual housecleaner and at the car wash. These are not extravagant requirements which many able bodied Australians avail themselves of.

113. I accept the evidence of the plaintiff’s mother that the plaintiff struggles with juggling full-time work and looking after herself at home. This creates physical stress because the nature of her disability is such that she cannot reasonably cope with fulltime work and performance of all of the activities required to maintain one at home. Without assistance, something will have to give. The allowance of two hours per week propounded by the plaintiff is not unreasonable. However, there is a question of its duration. As one gets older, the need for help around the home for reasons other than an existing injury is likely to develop and increase. It seems appropriate to allow a significant discount for the ordinary vicissitudes of life.

114. The amount claimed is $40 per hour, which I accept is not unreasonable. The multiplier for 68 years on the 5 per cent tables is $1,030.70. The undiscounted calculation is $82,456. I think it appropriate to discount the figure by 30 per cent for the vicissitudes of life. The amount I allow for future care is $57,719.20.

Curative apparatus

115. I return then to the question of curative equipment, Ms Lyons has modified her opinion on this matter somewhat. Given the modifications she made to her views as part of the conference process, she now contends that the plaintiff needs the curative equipment set out in the table at the foot of paragraph 6 at page 16 - 17 of Ms Borthwick’s report of 23 April 2017. These items total $3,128.50 with a recurring cost of $221.65 per annum. I understand Ms Borthwick to no longer support the need for them.

116. Mr Hull points out that most of the items listed are the type of items one might find in an ordinary suburban home. For example, a laundry basket and trolley is a very common household item, as is a long handled dustpan and broom. I will not multiply examples. In my view there is force in this submission, which I accept. I am not persuaded by the contrary argument in the circumstances of this case that although these are items a person may choose to buy, in the plaintiff’s case they are necessary because of the injury caused by the defendant’s negligence and therefore should be allowed.

117. An exception to this statement is the claim panoramic car mirrors, or “fisheyes”, valued at $130. I accept the argument that given the demonstrable range of movement in the plaintiff’s neck, both on medical examination and as shown on the surveillance video these items are not necessary. I am not persuaded that lawnbot, which I take to be a robotic lawnmower is a necessary item given the allowance I have made for paid domestic assistance. In any event, it is likely, at least initially, that the plaintiff will reside in a home unit and will have no need for a lawnmower.

118. The plaintiff did not give any evidence suggesting she would benefit from a long handled scrub mitt or a hairdryer stand. Nor was there any evidence that she would benefit from a desk slope board or document holder when performing desk work. I can see that such matters may improve the comfort of a person with a neck injury working at clerical type work at a desk. On the other hand, the annual costs of these matters is said $7.50 and $6.55 respectively which strikes me de minimis and I will not allow those items on that basis.

119. In the end, I accept that the propounded curative equipment is not reasonably necessitated by the nature of the plaintiff’s injuries caused by the defendant’s negligence.

Economic loss

120. There is no claim for past economic loss. The plaintiff was a young high school student at the date of injury and has worked part-time in waitressing work since about the end of 2015; more regularly now during her gap year. There is no suggestion that she has lost time from this work because of her neck injury which was chronic in any event by the time she started work.

121. Damages for economic loss are awarded “not merely [because the plaintiff’s] earning capacity has been diminished but because the diminution of his [or her] earning capacity is or may be productive of financial loss”: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 at 347 (Dixon CJ, Kitto and Taylor JJ).

122. The plaintiff claims a buffer in the sum of $200,000 for damages for impairment of her earning capacity to the extent to which it may give rise to actual financial loss in the future. This translates, on Mr Black’s submissions to around $182 per week and compulsory superannuation contributions. Mr Hull argues that the only allowance for economic loss ought to be during the expected period of surgery which will probably take place sooner rather than later. He calculates this at the rate the plaintiff appears to be earning at the Hog’s Breath Café; currently that is $480 per week for 26 weeks or a figure of $12,480. He submits that given the plaintiff’s work ethic and academic achievements, it is highly likely that she will be successful in her application to join the Commonwealth Public Service. Learned Counsel submits that she is very unlikely to lose any time from work because of her neck injury in what would essentially be a sedentary and clerical position.

123. Under s 13 Civil Liability Act, I accept that the plaintiff’s most likely future circumstances but for the injury are that she would have graduated from university and sought to enter the Commonwealth Public Service in a professional role related to foreign affairs or trade. I also accept that given her attributes, her achievements and her work ethic she is likely yet to achieve that goal.

124. It does not follow from these findings that the plaintiff has no impairment of her earning capacity or that if she achieves professional work she will suffer no financial loss. From the findings I have already made about the nature of the injury, I accept that there are occupations she would be unable to perform because of her pain, were it necessary for her to look beyond the scope of her stated ambitions to find work. Given her work ethic she is unlikely to remain idle if her plans are thwarted. There aspects of her current waitressing work for which she is unfit. I am not persuaded that she will have no disability or impairment after even successful surgery.

125. I am also of the view that although the plaintiff ought to be fit to work full-time in a professional capacity generally, she is likely to be subject to exacerbations and aggravations of her neck pain causing her to lose time from work over the long years ahead of her. There is a chance that even with successful surgery the condition in her neck will deteriorate. Both Dr Diwan and Dr Smith refer to the fact that, at least in older people, generally the adjoining C5-6 level will also become symptomatic. This is a realistic possibility in this case.

126. In achieving her academic success so far, allowances have been made both at school and at University for her injury and disability. Even an enlightened employer may not always make the same allowances or any allowance at all. From her previous experience intense periods of work with her neck in a fixed flexed posture causes worse pain. The experts accepted that that was to be expected if one accepted that she suffered from a discal injury in her cervical spine. As to Dr Smith see 116.35 -116.40T and as to Dr Diwan see 116.50 -117.30T.

127. The difficulty in the present case, of course, is assessing the extent to which that impairment may give rise to actual financial loss for the purpose of assessing damages: see Malec v JC Hutton, at [83] above. As Mr Black submits I think it necessary to approach the question globally. I will avoid the pretence of attempting to achieve arithmetical precision.

128. The starting point is to allow 60 per cent of $12,480 for the prospect that the plaintiff will have the surgery before commencing in the Commonwealth Public Service, to accord with the assessment of that prospect I have already made. That allowance is $7,488.

129. Dealing with the balance and bearing in mind the need to make allowances for the ordinary vicissitudes of life, it is appropriate, given that the plaintiff was an untried young person as at the date of injury, to adopt as a reference point average weekly total earnings of all adults working full-time in the labour market. On the latest figures provided to me as an aide, this is $1,725.80 per week, or about $90,000 gross per year. Doing the best I can, this translates into a net salary of around $70,000 per annum. Adding 11 per cent for the effect of the compulsory superannuation contribution on the net figure, a total net salary package of $77,700 is produced.

130. It does not seem to me unreasonable to postulate that over a working life of about 46 years, the plaintiff may well lose two years from work because of her injuries, disabilities and impairment. Allowing for the vicissitudes and the accelerated benefit represented by the receipt of the money now, I allow, including the sum I have already referred to (at [126]), a total of $110,000.

Schedule of Damages

Non-economic loss      $202,000.00

Past out of pocket expenses      $8,131.13

Future out of pocket expenses      $42,250.00

Past gratuitous care      $25,272.00

Future commercial assistance       $57,719.00

Economic Loss      $110,000.00

Total:      $445,372.00   

131. I allow total damages in the sum of $445,372.00.

Costs

132. Because it was obvious that the damages to which the plaintiff was entitled may be assessed in an amount less than $500,000, I asked counsel to address me provisionally on the application of r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on the basis that I would grant liberty for further submissions to be made after I expressed my own tentative views in this judgment, if applicable. UCPR 42.34 is in the following terms:

(1)  This rule applies if:

(a)  in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b)  the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2)  An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that:

(a)  for proceedings that could have been commenced in the District Court--the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted, or

…..

133. It is important to bear in mind that the proceedings were originally commenced in the District Court and were transferred to this Court by order of the Registrar made under s 140 Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”) on 20 September 2016 when the plaintiff summons seeking that reliaf was first returnable. The Registrar was empowered to make the order because the defendant neither consented to nor opposed the transfer. However, I was informed from the bar-table without objection, that Mr Wade, the solicitor for the defendant appearing on that occasion, pointed out to the Registrar that the materials relied upon to demonstrate that the amount of damages to be awarded to the plaintiff, if successful, was likely to exceed the jurisdictional limit of the District Court of $750,000 were rather thin. Nonetheless a transfer order was made by the Registrar. Had he perceived serious opposition, the matter would have been referred for decision by a judge.

134. The first question is whether the Rule is engaged at all. In Scott v Telstra Corporation Ltd [2018] NSWSC 309, Lonergan J expressed the view, obiter dictum, that the Rule was not engaged when proceedings commenced in the District Court were transferred to this Court under s 140 of the Civil Procedure Act. This is because the express terms of the Rule require both the commencement and continuation (to finality) of the proceedings in this Court. Her Honour also expressed the view that if she were wrong in that interpretation, it would be difficult to see a judge of the Court exercising his or her discretion to refuse costs where there had been an order for transfer.

135. With respect I agree with Lonergan J. First, the Rule is only engaged when proceedings are both commenced and continued in the Supreme Court and less than $500,000 is recovered. As these proceedings were commenced in the District Court and transferred by order of the Supreme Court, I am satisfied that the Rule is not engaged and the ordinary rule should apply.

136. Were I wrong about this I would still award costs. Whether or not there had been strenuous opposition to the transfer, the simple fact is that the responsible officer of the Court exercised a legal power to effect the transfer and in those circumstances the usual rule as to costs, that is to say, that they follow the event should apply. Section 140 of the Civil Procedure Act is protective of the interests of justice in that a plaintiff’s legitimate claim should not be defeated by an accident of jurisdiction. Given the Registrar must have thought there was a real prospect that the jurisdictional limit of the District Court would be exceeded whatever the strength of the proofs proffered, it would in my judgment be unfair for the plaintiff to be denied her costs. When the Court finds it is likely the jurisdictional limit will be exceeded, the converse that it will not in the event be exceed must be implied. Certainty of outcome is not a condition of transfer. It would be unfair to deny the successful party costs because an impression of the value of the case formed from limited materials is not realised.

137. Moreover in the present case the award is less than $500,000.00, but not by very much. This too would be a reason from departing from the ordinary rule established by UCPR 42.34.

138. My orders are:

1. Judgment for the plaintiff in the sum of $ 445,372.00.   

2. The defendant to pay the plaintiff’s costs.

3. Liberty to the defendant to apply in respect of the costs order by lodging written submissions and any evidence relied on with my Chambers within 14 days.

4. The plaintiff to have a further period of 14 days to respond.

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Amendments

31 May 2018 - Case Name amended to: Smith v Carnival Plc trading as P&O Cruises Australia;

Parties amended to: Montana Smith (Plaintiff)

Decision last updated: 31 May 2018