Smith v Zhong
[2014] WADC 50
•17 APRIL 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SMITH -v- ZHONG [2014] WADC 50
CORAM: SLEIGHT DCJ
HEARD: 1822, 25, 2729 NOVEMBER 2013
DELIVERED : 17 APRIL 2014
FILE NO/S: CIV 1575 of 2011
BETWEEN: JACQUELINE ROSEMARY SMITH
Plaintiff
AND
QIAN HUA ZHONG
Respondent
Catchwords:
Damages - Personal injuries - Assessment of damages - Loss of earning capacity - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded in the sum of $361,902.20
Representation:
Counsel:
Plaintiff: Ms B A Mangan
Respondent: Mr P E Jarman
Solicitors:
Plaintiff: Kakulas Legal
Respondent: Jarman McKenna
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1
De Blank v Stemberger [2000] WASCA 358.
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161)
Hendrie v Rusli [2000] WASCA 249
Hewett v Medical Board of Western Australia [2004] WASCA 170
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990)169 CLR 638
Mastaglia v Burns [2006 ] WASCA 190
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Paff v Speed (1961) 105 CLR 549
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Robinson v Riley [1971] 1 NSWLR 403
Todorovic v Waller (1981) 150 CLR 402
Trigwell v Trigwell (1997) 18 WAR 83
Watts v Rake [1953] HCA 18; (1953) 89 CLR 200
Watts v Turpin (1999) 21 WAR 402
Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; (1995) 70 ALJR 147
Zachopoulos v The State Government Insurance Commission (1986) Aust Tort Reports 80-023
Index
1. Background
(a) General
(b) Mrs Smith's activities prior to the accident
2. The accident
3. Summary of Injuries
4. Treatment
5. The evidence in relation to injuries and disabilities
(a) Right femur
(b) Right ankle injury
(c) Knee injury
(d) Extensive deep vein thrombosis in the right leg
(a) Evidence of a pre-existing deep vein thrombosis
(b) Disabilities arising from the deep vein thrombosis
(e) Spinal injury
(i) Prior back complaints
(ii) Accident spinal injuries
(f) Mental health injuries
(g) Cosmetic disability (forehead)
6. Mrs Smith's evidence as to how her accident injuries have affected her daily life
7. Credibility
8. Jones v Dunkel issue
9. Findings relating to Mrs Smith's injuries
(a) Right femur
(b) Right ankle injury
(c) Knee injury
(d) Extensive deep vein thrombosis
(e) Spinal injuries
(f) Mental injuries
(g) Cosmetic disabilities
10. Assessment of damages
(a) Wilson v McLeay damages
(b) Loss of earning capacity
(i) Legal principles
(ii) Background
(iii) Expert medical evidence as to loss of earning capacity
(iv) Plaintiff's claim
(v) Conclusion
(c) Past and future gratuitous services
(i) Legal principles
(ii) Past gratuitous services
(iii) Interest on past gratuitous services
(iv) Future gratuitous services
(d) Future medical expenses
1. Spinal treatment (items (a), (b), (c), (d) and (k) above)
2. Travel and compression stockings
3. Removal of metalwork from right femur
4. Right knee arthroscopy
5. Right knee replacement
6. Right hip replacement
7. Surgical treatment of forehead depression
8. Pristiq
Summary of damages for future medical treatment
(e) Aids, appliances and home modifications
(f) Special damages
(g) Non-pecuniary
Summary of award
SLEIGHT DCJ: On 29 July 2008 the plaintiff, Mrs Smith, was driving a Toyota Tarago in a northerly direction along Vahland Avenue, Willetton when a Transperth bus driven by the defendant pulled out in front of Mrs Smith's vehicle causing a collision. The severity of the collision will be described later in this decision. The defendant admits that the collision was solely due to his negligence. As a result of the collision Mrs Smith suffered injuries and this decision concerns the appropriate award of damages.
The central issues can be summarised as follows:
(i)What was the extent of the injuries suffered by Mrs Smith in the accident and the disabilities that have arisen.
(ii)To what extent did Mrs Smith suffer a pre‑existing chronic spinal injury and the extent to which this caused or contributed to her disabilities.
(iii)To what extent did Mrs Smith suffer a preexisting deep vein thrombosis and if so, the extent this caused or contributed to her disabilities.
(iv)To what extent has Mrs Smith suffered past and future loss of earning capacity as a result of the accident and the extent this has and will be productive of loss of income.
(v)To what extent has Mrs Smith received and will require gratuitous services.
(vi)To what extent has Mrs Smith required medical treatment as a result of her accident injuries and what will be the future need for medical treatment.
These central issues are the subject of conflicting expert medical opinion which will need to be resolved in this decision. Also, a further evidentiary issue is the significance to be attached to surveillance evidence of Mrs Smith.
An issue raised on the pleadings is the extent that an unrelated brain tumour that required surgery on 8 January 2010 contributed to Mrs Smith's disabilities. This issue was not pressed at trial and, in any event, I make a finding that none of the disabilities described in this decision were caused by or contributed to by the brain tumour.
The general thrust of the claim of Mrs Smith is that the injuries she suffered in the accident have left her with permanent disabilities which have significantly impacted on her wellbeing, her lifestyle and reduced her earning capacity by reducing her capacity to contribute to a family business conducted with her husband.
Background
(a) General
Mrs Smith was born on 9 October 1968. At the time of the accident she was 39 years of age and is presently aged 45. She is married to Mr David Smith. They have five children:
•Beatrice, born 13 June 1997;
•Marcelle, born 28 September 1998;
•Consuelo, born 9 February 2001;
•Walter, born 15 August 2003; and
•Brielle, born 26 December 2007.
Mr and Mrs Smith conduct a family business which consists of three separate components:
1.The supply of tags and tickets (this aspect of the business trades under the name 'Tags and Tickets' and involves supplying to wholesalers industrial tags and tickets).
2.The supply of anodes (this aspect of the business trades under the name 'Anodes Australia' and involves supplying anodes used in hot water systems and other wet environments to reduce corrosion).
3.The supply of safety tags (this aspect of the business trades under the name 'Safety Distributors' and involves supplying safety tags to retailers).
A fuller description of the business conducted by Mr and Mrs Smith will be given later in this decision when addressing the issue of loss of earning capacity.
Of some importance in this case is that Mr and Mrs Smith are members of the Plymouth Brethren Christian Church (the Brethren). The importance lies, firstly, in detailing the extent Mrs Smith was involved in church activities before and after the accident; and secondly, the extent Mrs Smith's religious beliefs may have impacted on her earning capacity in the future in any event. The evidence of Mrs Smith was that it was common that once a Brethren woman marries she normally discontinues working and her responsibilities are home duties and caring for her husband. However, there were occasions when younger married women will go and seek employment if the family is experiencing severe financial difficulties.
(b) Mrs Smith's activities prior to the accident
It is not contested that prior to the accident Mrs Smith lived a very busy life. Her evidence was that her day commenced at about 6.00 am and she would not get to bed before midnight. Mrs Smith was caring for five young children and providing nearly all of the domestic services in the household. Mr Smith made a negligible contribution to domestic matters. Added to Mrs Smith's domestic burden is that her son Walter is Down Syndrome and at the time of the accident Mrs Smith was breastfeeding the youngest child Brielle. In addition to domestic responsibilities, Mr and Mrs Smith were very active in their church. Each day commenced with a family prayer and scripture reading. On about four weeknights per week Mr and Mrs Smith and the children attended a church gathering in the evening. This was usually for about threequarters of an hour. The meetings were held at various church halls in the metropolitan area, but on Thursday the meetings were at more distant locations such as Mundaring and Northam. On Saturday mornings Mrs Smith attended scripture readings. On Sundays Mr and Mrs Smith and the children attended a church service at 5.45 am. They returned home from the service at about 10.30 am when they conducted scripture readings. They then attended a lunch with other members of the church. These lunches were held at the homes of members of the church in rotation. About once a month Mr and Mrs Smith hosted such a lunch. There would usually be up to 20 people attending.
Also Mrs Smith from time to time provided voluntary services to other members of the Brethren who were for various reasons requiring assistance. She did cleaning for her mother and another member of the Brethren on a weekly basis. She also regularly cooked for other members of the Brethren who became ill.
Finally, Mrs Smith's evidence was that she devoted approximately 18 hours per week to the family business. The extent of her contribution to the family business is an area of contention and will be dealt with later in this decision.
All of the witnesses who gave evidence who knew Mrs Smith before the accident described her as being a very energetic person. Dr Cooper, who was the family doctor, described Mrs Smith as being 'at the peak of her game' (ts 222). He said that she did not have any difficulty coping with Walter being Down Syndrome. Mrs Chloe Denton, the sisterinlaw of Mrs Smith and a provider of gratuitous services after the accident, described Mrs Smith as being before the accident very energetic, a very happy person and always helping someone. Likewise, a Mrs Chloe Driffin, who also provided gratuitous services after the accident, described Mrs Smith before the accident as being a very competent person and giving the impression that she found life 'a breeze' (ts 514). Mr Smith described his wife as never complaining she was too tired and managing both caring for their five children and participating in their business (ts 419).
The accident
The circumstances of the accident are not in dispute. As mentioned earlier, on 29 July 2008 Mrs Smith was travelling in a Toyota Tarago in a northerly direction along Vahland Avenue, Willetton when a Transperth bus driven by the defendant pulled out in front of Mrs Smith's vehicle. At the time of the collision, Mrs Smith's daughter Brielle was positioned in a rear seat. Mrs Smith remembers braking but the collision could not be avoided. Just prior to impact Mrs Smith prayed that she would not die.
On impact Mrs Smith said she felt a reverberation right through her head and body. Photographs tendered into evidence show severe impact damage to the front of the Tarago vehicle with the damage being more severe on the driver's side.
Mrs Smith's evidence was that immediately after the collision, Brielle started to cry. Mrs Smith was trapped in the front of the vehicle and was unable to go to Brielle's assistance. Mrs Smith stated that at that point of time she was concerned that the vehicle might catch fire. The next thing she recalls is a man standing by the vehicle nursing Brielle, telling Mrs Smith that Brielle was okay. He also said that he had done something to the battery and the vehicle would not catch fire. At this point of time Mrs Smith said that her head was sore but she had no idea as to what other injuries she may have suffered.
Mrs Smith was trapped in the vehicle for a significant period of time. An ambulance and a fire and rescue vehicle eventually attended the scene of the accident. Also Mrs Smith's husband, her mother-in-law and other relatives had been notified of the accident and they subsequently attended the scene of the accident and spoke to Mrs Smith while she was trapped in the vehicle.
Mrs Smith estimates that she was trapped in the vehicle for approximately one hour. Eventually fire and rescue personnel were able to cut away the door and free pressure which was being placed on Mrs Smith's right leg. Up until this had occurred, Mrs Smith said was in severe pain and had asked for painkillers.
Eventually the fire and rescue personnel placed a back brace on Mrs Smith and they were able to extract her through the rear of the vehicle. Mrs Smith was then placed in an ambulance and taken to the Fremantle Hospital.
Summary of Injuries
In a report dated 7 May 2009 Dr Anthony Cooper provided a convenient list of the injuries he believed Mrs Smith had suffered in the accident. This list of injuries is essentially not in dispute but, as identified earlier in the decision, a central issue is the extent of the injuries described and the extent of the consequential disabilities to Mrs Smith. Dr Cooper listed the injuries as follows:
•Fractured right femur.
•Severe sprain of right ankle.
•Sprain type injury of right knee.
•Extensive deep vein thrombosis in the right leg.
•Lower backache.
•Soft tissue 'whiplash' type injury of the neck.
•Similar type of injury of the upper thoracic spine area.
•Multiple bruising to:
(a)the forehead, draining to both periorbital areas;
(b)inner aspect of the right thigh;
(c)across the abdomen (compatible with seatbelt);
(d)right forearm;
(e)right knee and lower leg – multiple areas of various sizes.
•Swelling of her right lower leg, predominantly at the ankle but also in the lower leg.
•Emotional stress.
•Shingles.
•A deformity of the forehead.
Treatment
On admission to the Fremantle Hospital Mrs Smith was x-rayed. The xrays revealed that Mrs Smith had suffered a transverse fracture of the right femur. The x-rays revealed that there were no other obvious fractures to the pelvis, cervical spine or forearm.
On 29 July 2008 Mr G Lim, orthopaedic surgeon, operated on Mrs Smith and inserted a right femoral rod. Screws were inserted at the top of the rod (just below the hip) and at the bottom of the rod (just above the knee). Staples were removed 13 days later at the wound sites where the rod and screws were inserted.
Mrs Smith suffered significant bruising to her forehead, eyes, and midrift in the area of her seatbelt; some abrasions and bruising to the right knee; some bruising on the right inner thigh; and bruising surrounding the surgical wounds on the side of her right leg. At the suggestion of a nurse, Mrs Smith had photographs taken of herself whilst she was in hospital and these show the bruising and abrasions suffered by Mrs Smith.
Whilst in hospital Mrs Smith received physiotherapy and occupational therapy.
Mrs Smith was discharged from hospital on 2 August 2008 with a walking frame. At the time she was on pain‑killing medication paracetamol and Oxycodone. Mrs Smith was placed under a 'Rehabilitation in the Home' service provided by the hospital which assists early discharge by providing rehabilitation and support services in the home. The service provided occupational therapy support for a period of approximately three months. After discharge from hospital Mrs Smith was provided with various appliances to assist her about the house. This included such things as a bench and shower chair, a raised toilet seat, a high upright chair and a high kitchen stool. The service also provided physiotherapy services on 14, 18 and 21 August 2008. From then on Mrs Smith received physiotherapy over an extended period from the Bentley Health Service physiotherapist.
Dr Cooper first saw Mrs Smith after the accident on 5 August 2008 with a home visit. Dr Cooper stated in his evidence that he was shocked by the appearance of Mrs Smith and thought that she had been prematurely discharged from hospital. He observed Mrs Smith was tearful and he provided a long counselling session to her.
On 12 August 2008 Dr Cooper made a further home visit and removed the surgical staples.
In August 2008 Dr Cooper became suspicious that Mrs Smith was suffering from a deep vein thrombosis. He arranged an ultrasound which confirmed the presence of a deep vein thrombosis. Dr Cooper arranged treatment in the form of a compression stockings and warfarin.
Mrs Smith was reviewed in the orthopaedic clinic on the Fremantle Hospital on 2 September 2008 and 11 November 2008. By this time she was no longer walking with a frame and her pain medication had been reduced to Nurofen.
On 10 November 2008 Mrs Smith presented to Dr Cooper suffering shingles to the mid‑posterior thoracic area. She was prescribed medication and when she was reviewed on 5 December 2008 the shingles complaint had resolved.
In May 2009 Dr Cooper referred Mrs Smith to Dr Susan Ho, neurologist, for a number of neurological complaints. A report of Dr Ho dated 29 June 2009 listed the complaints of Mrs Smith as constant headaches, a large haematoma to the forehead which eventually resolved with a residual dent deformity, tingling in her arms radiating to her fingers, intermittent numbness of the tongue, dizzy spells particularly with head turning, poor sleep patterns, feelings of frustration and depression. Dr Ho organised an MRI which revealed a cyst‑like lesion abutting the deep lobe of the parotid gland. This was unrelated to the accident and was successfully surgically removed by Mr Andrew Lindsay (ear, nose and throat specialist) in January 2010 under general anaesthetic.
On referral from Dr Cooper, Mrs Smith was seen by Dr Paul Skerritt, psychiatrist, on 25 May 2009, 15 June 2009, 14 July 2009, 25 August 2009, 22 September 2009,11 November 2009, 9 February 2010 and then later on 16 September 2013, 8 October 2013 and 5 November 2013. Dr Skerritt prescribed antidepressant medication (Pristiq and mirtazapine). The mirtazapine caused weight gain and in February 2010 Mrs Smith was taken off this medication. Dr Skerritt also arranged a CT scan of the brain which excluded any brain damage.
In June 2009 Dr Cooper referred Mrs Smith to Mr Benjamin Kimberley (orthopaedic surgeon). Mr Kimberley initially saw Mrs Smith on 13 July 2009. Mr Kimberley organised an MRI scan of Mrs Smith's ankle and a CT scan of the knee. Mr Kimberley reviewed Mrs Smith on 10 August 2009, 23 September 2009, 30 November 2009, 22 February 2010, 19 April 2010, 11 August 2010, 3 November 2010, 1 February 2011, and 9 September 2013. In August 2009 Mr Kimberley organised a cortisone injection into the lateral tendon of the right ankle. In February 2010 Mr Kimberley referred Mrs Smith to a podiatrist for orthotic inserts.
In November 2008 Dr Cooper referred Mrs Smith to Mr Barrie Lykke, plastic and reconstructive surgeon, for a depression or dent in Mrs Smith's forehead. Mr Lykke saw Mrs Smith initially in January 2009 and recommended postponement of any treatment until the scarring had further settled. Mrs Smith was reviewed on 3 August 2009 when Mr Lykke decided that the depression could be improved by reducing the ridge immediately above the depression. This was a surgical procedure to be performed under general anaesthetic. Dr Cooper referred Mrs Smith to Mr David Gillett, plastic and reconstructive surgeon, for a second opinion. Mr Gillett saw Mrs Smith on 8 September 2009 and performed a scar revision at a day surgery on 29 October 2009. Mr Gillett reviewed Mrs Smith on 15 July 2010 and conducted further revision surgery on 20 July 2010. Sutures were removed on 27 July 2010 and Mrs Smith was further reviewed on 7 September 2010 and 9 March 2011.
In February 2011 Dr Cooper referred Mrs Smith to Mr David Holthouse, neurosurgeon and pain specialist, in relation to continuing pain experienced by Mrs Smith in her neck, thoracic spine, lower back and right leg. Mr Holthouse initially saw Mrs Smith on 19 April 2011 and arranged an MRI of her cervical spine and lumbar spine and a bone scan. Mrs Smith was reviewed by Mr Holthouse on 7 December 2012. Mr Holthouse arranged a nerve block injection and a set of steroid injections. He also arranged an injection of the C6 nerve root. Mr Holthouse reviewed Mrs Smith on 22 February 2013 and Mrs Smith was given cervical and lumbar facet joint injections.
From the date of her discharge from hospital Mrs Smith received conservative treatment as follows:
(a)hydrotherapy at the Bentley hospital on 3 September 2008 and 11 September 2008;
(b)physiotherapy from 26 August 2008 to 11 February 2009 (nine treatment sessions);
(c)on numerous dates Bowen therapy;
(d)from 5 September 2008 to 24 April 2009 45 sessions of chiropractic treatment at the Leeming Chiropractic Centre.
Mrs Smith was seen for medico-legal assessments at the request of the defendant's solicitors by Mr Hardcastle, orthopaedic surgeon (who retired from active surgery in 2009) on 4 September 2012 and 7 November 2013; by Mr Anastas, retired orthopaedic surgeon, on 7 April 2009, 31 May 2010 and 30 April 2010; and by Dr Martyn Flahive, occupational physician, on 8 April 2013 and 1 November 2013.
The evidence in relation to injuries and disabilities
I propose in this section of the decision to summarise the evidence in relation to the various injuries and disabilities complained of by Mrs Smith.
(a) Right femur
Mrs Smith has made a good recovery from the right femur fracture. A report by the Fremantle Hospital dated 5 May 2009 stated x-rays showed that the fracture had united well.
Mrs Smith's evidence was that she still experienced pain in the area of the fracture. She said the pain is constant, some days worse than others. Mrs Smith said she has undertaken her own therapy by doing leg exercises. She said the exercises were taught to her by the physiotherapist and she includes these exercises in her everyday movements. Mrs Smith said that the pain levels have plateaued off in the last 12 months.
Mr Kimberley in his evidence opined that Mrs Smith's right knee hit against a part of the vehicle, sending a significant force up the leg that caused the femur bone to break midway up the shaft. He described that this was not an uncommon pattern of injury. Mr Kimberley stated the application of force through the knee was confirmed by a breaking of skin on the knee which left some scarring and a lot of bruising around the knee. Mr Kimberley expressed the opinion that the force travelling up the femur would have travelled into the hip and lumbar spine area causing soft tissue injuries. In a report dated 24 August 2010 Mr Kimberley expressed the opinion that due to the force that had travelled up through the femur it was possible that Mrs Smith will suffer arthritis in the hip joint.
Mr Kimberley's evidence is that one option to consider to reduce the pain being experienced by Mrs Smith is to have the metalwork removed.
Dr Ker in a report dated 1 November 2013 noted that Mrs Smith was experiencing pain in the right upper limb and right hip. On examination he found that Mrs Smith had a satisfactory range of movement in the hip. Dr Ker expressed the opinion in cross-examination that it was unlikely that Mrs Smith would ever require a hip replacement.
Mr Hardcastle in his evidence was less definitive of whether the force of the impact travelled through the knee into the femur. He accepted that there was an impact through the knee and that a trauma had been applied to the leg. Mr Hardcastle agreed that it was not inappropriate to have the metalwork removed if the patient continued to experience discomfort. Mr Hardcastle's evidence was that he did not see any reason why Mrs Smith's hip would be any more susceptible to degeneration than the average person (ts 533).
Mr Anastas in his evidence disagreed with the conclusion of Mr Kimberley that the force had travelled up through the knee causing the fracture of the femur and expressed the view that the femur was fractured by a direct force either in the form of an angular force or a rotatory force. In a report dated 30 April 2013 Mr Anastas said that Mrs Smith had advised him that for the previous six months she had right hip pain which was present most of the time. Because of the time delay Mr Anastas concluded that the onset of symptoms was not related to the motor vehicle accident. Further, Mr Anastas' evidence was that the injuries to the right femur and the right knee did not predispose Mrs Smith to the need for right hip replacement.
Dr Flahive in his evidence stated that he believed that the force that broke the femur would have been something in the nature of a force directly onto the femur such as the steering wheel or dash coming down onto the right leg. He did not believe the force travelled through the knee into the femur as he would have expected more damage to the knee itself. He did not dismiss the possibility that you could have a fracture of the femur by applying force through the knee but he would expect either the neck of the femur would be broken or the force would drive up through the hip joint into the pelvis. In a report dated 4 November 2013 Dr Flahive stated that there was no evidence that Mrs Smith sustained any direct injury to the hip joint and there was no ongoing pathology of degenerative change in the hip joint that would predispose or accelerate any arthritic process in the hip joint. He believed that the chances of Mrs Smith requiring a hip replacement were remote.
The photographs of Mrs Smith's right leg taken after surgery show moderate bruising on the inside of the right thigh and bruising in the area where the nails were inserted below the hip joint. There is bruising and abrasions around the knee area where one would expect bruising and abrasions to be if the knee made contact with the structure of the car during a collision.
(b) Right ankle injury
Mrs Smith's evidence was that the right ankle was bruised and swollen as a result of the foot being trapped and turned back for a period of approximately one hour while she was trapped in the vehicle. The Fremantle Hospital notes record that Mrs Smith complained on admission of altered sensation to the foot and pain in the right ankle. The hospital records of 1 August 2008 record that Mrs Smith was reluctant to place her foot flat on the ground.
When Mrs Smith was reviewed in the Orthopaedic Outpatient Clinic on 11 November 2008 it was noted that she was walking with a slight Trendelenburg gait and was requiring approximately two Nurofen per day to help her through the day.
In her evidence Mrs Smith complained that her right ankle continues to cause her pain and swelling. She said the ankle created a dilemma because if she uses the ankle it becomes painful and if she does not use it, it becomes stiff. She says she wears orthotics in her daily house shoes as she finds this helps with the pain. She does not wear orthotics when she goes out. She says she takes painkillers to ease the pain. Mrs Smith also says she wears sheer relief stockings as recommended by Dr Cooper to support her right leg.
Dr Cooper in a report dated 7 May 2009 observed that since the accident Mrs Smith normally walks with a limp, although she can walk briefly without a limp if she concentrates on doing so. He stated that by the end of the day Mrs Smith complains she has a tendency to trip over her right foot. In a subsequent report dated 9 March 2010 Dr Cooper stated that Mrs Smith 'walked with a slight limp but this is more from her knee and ankle now, especially the ankle'. In a later report dated 21 October 2012 Dr Cooper noted that Mrs Smith complained of constant pain in the right ankle which she described as severe and that she also complained of stiffness.
Dr Cooper referred Mrs Smith to Mr Kimberley whose primary responsibility was treating Mrs Smith for her ankle and lower limb injuries.
Mr Kimberley diagnosed Mrs Smith as suffering from tendonitis and tenosynovitis around the peroneus brevis (lateral tendon inflammation).
In a report dated 12 September 2013 Mr Kimberley stated that Mrs Smith's disabilities to the ankle were moderate but, in combination with other areas, was moderate to severe. He believed her disability to the ankle had plateaued but there was likely to be some deterioration in the distant future. In his evidence Mr Kimberley stated he believed that the swelling that Mrs Smith suffered in the ankle area was persisting despite the ankle overall having improved and plateaued. He expressed the opinion that although Mrs Smith's deep vein thrombosis may be a factor in the swelling, he felt that it was also related to the soft tissue injury to the ankle.
Mr Kimberley had doubts as to whether exercise will improve the ankle as the exercise may cause further swelling. He also expressed reservations about the use of compression stockings which he believed would have to be worn permanently to provide a benefit.
Dr Ker in a report dated 1 February 2012 stated that Mrs Smith has a disability in the right lower limb with pain in the knee, evidence of some residual wasting of the right thigh, and some restriction of right ankle movements through dorsiflexion and plantarflexion. He expressed the opinion that she was unlikely to experience substantive deterioration in the right lower limb joints and he saw little likelihood of Mrs Smith requiring any form of walking aid or other physical assistance with mobility into the foreseeable future.
Mr Hardcastle, in a report dated 7 November 2013, described Mrs Smith's ankle injury as mild synovitis or tendonitis of the ankle. He observed that she walked with a slight limp. He stated on examination he found no loss of movement of the ankle. Mr Hardcastle also stated his evidence he did not observe any swelling of the right ankle. Mr Hardcastle in a report dated 26 September 2012 expressed the opinion that in relation to Mrs Smith's ankle injury that he expects Mrs Smith to make a full recovery.
Dr Flahive noted on examination that Mrs Smith had a restriction of movement of the ankle. He was unable to account for the reason for this as he concluded from the MRI and the x-rays that there was no damage to the joint. He accepted it may well be due to pain from the accident injury but believed that this had persisted because it had not been rehabilitated correctly. He also speculated that it may be caused by Mrs Smith's abnormal gait. Dr Flahive also observed swelling which was primarily above the ankle. He took some photographs of the swelling which were tendered into evidence. He expressed the opinion that the swelling was not caused by damage to the ankle but related to Mrs Smith suffering a deep vein thrombosis. He expressed the opinion that if the swelling was being caused by the ankle the swelling would be more localised in the area of the ankle joint. He noted that Mrs Smith had suffered a deep vein thrombosis six months before the accident related to her pregnancy and also a further deep vein thrombosis subsequent to the accident. He believed that the swelling could be treated by an exercise programme and compression stockings.
(c) Knee injury
As earlier observed in this decision, Mrs Smith suffered bruising about the right knee. Also, photographs taken whilst Mrs Smith was in hospital show some minor abrasions in the right knee area.
Mrs Smith in her evidence complains that at times the knee 'clunks', especially when she goes up stairs. At other times she says it locks. Mrs Smith also complains that the knee is very sensitive and painful when things are pressed up against it.
Dr Cooper, in a report dated 7 May 2009, stated that Mrs Smith was experiencing pain in both knees, especially the right. He noted a positive McMurray click over the lateral meniscus.
Dr Cooper referred Mrs Smith to Mr Kimberley to further investigate the knee problem. Mr Kimberley arranged a CT scan of Mrs Smith's right knee and in a report dated 10 August 2009 stated that the knee showed good alignment with no major cause for concern.
In response to a report from Mr Anastas, Mr Kimberley in a report dated 11 August 2010 stated that in his experience where there has been a femoral bone fracture as a result of force applied directly through the knee joint there is often quite considerable cartilage damage. Mr Kimberley stated in his evidence that it is often difficult to pick up from MRI scans the damage to the cartilage. However, he stated that from operating on knees you know what to look for and often can pick up cartilage damage which is not reported by the radiologist. Mr Kimberley said that from his examination of the MRI scans of Mrs Smith he observed what he believed to be an irregularity in her cartilage, particularly in the groove where the knee cap fits.
Mr Kimberley rejected a suggestion by Mr Anastas that any problem that Mrs Smith suffered in the right knee area was contributed to by a previous genu valgum (knocked knees). Mr Kimberley expressed the opinion that any knee problem experienced by Mrs Smith was 100% related to the accident. Mr Kimberley stated that the genu valgum tended to produce symptoms for people in their teens and up to their mid-20s. He stated that by the time a person reaches the age of 25 to 30 the ligaments start to tighten and they do not suffer any symptoms. Mr Kimberley questioned the accuracy of the measurements made by Mr Anastas as to the extent of the genu valgum but stated that in any event it would need to be far more severe before it would predispose Mrs Smith to symptoms.
Mr Kimberley concluded in his report dated 11 August 2010 that whilst the knee was functioning reasonably well at that time, there was a potential for deterioration and requirement for arthroscopy or further procedures such as cartilage replacement or even a knee replacement in the distant future.
In a further report dated 20 January 2012 Mr Kimberley expressed the opinion that Mrs Smith will most likely get osteoarthritis. This will cause a decrease in mobility, and decrease her ability to stand or sit for long periods as a result of the pain and weakness. He also expressed the view that it will create difficulties in her performing various activities. He expressed the opinion that the deterioration of the hip and knee eventually is likely to result in requiring a walking stick.
Mr Anastas concluded that Mrs Smith had features of the right knee consistent with chondromalacia patella inflammation and degenerative process in the cartilage. Mr Anastas expressed the opinion that Mrs Smith had chondromalacia before the accident because of her weight and genu valgum, and that the accident would have exacerbated these changes. He explained that genu valgum alters the mechanics of the gliding mechanism of the knee (of the patella) and that this causes wear and tear of the patellofemoral joint. Under cross-examination Mr Anastas agreed he had measured the genu valgum as 10 degrees and accepted that many people with that degree of genu valgum would not suffer any symptoms during their lives.
Mr Anastas stated that it would not be unreasonable for Mrs Smith to have an arthroscopic procedure in the future for lateral release.
Dr Ker stated that when he examined Mrs Smith he noted an audible crepitus of the right knee.
Mr Hardcastle stated he noted from the CT scans that there was no evidence of any loss of any articular cartilage to any extent. He concluded there was some chondromalacia of the patella of the right knee but believes this is a pre-degenerative condition. Mr Hardcastle did note that Mrs Smith had a very slight genu valgum which he believed was not significant.
Dr Flahive considered that Mrs Smith had not suffered any significant disability to the knee. He considered there was nothing structurally wrong with the knee other than some tendonitis which he thought may have come from her gait.
Dr Flahive considered that Mrs Smith may have some mild patellofemoral syndrome by which he explained he meant damaged cartilage. He believed that Mrs Smith had some muscle weakness in her thigh and what was required by way of treatment was a strengthening and endurance exercise designed by a physiotherapist.
Dr Flahive in a report dated 4 November 2013 rejected the suggestion of Mr Kimberley that Mrs Smith may require a knee replacement in the future. He believed that the possibility of that occurring was remote. Dr Flahive stated that whilst it is recognised that distal femoral fractures do predispose a person to the development of knee osteoarthritis, he believed that the risk in Mrs Smith's case was minimal given that the fracture had healed with good anatomical alignment; there was no evidence of intra-articular joint injury or fracture to the knee; there was no evidence of significant pathology on the scans; and there was no clinical signs of significant articular pathology including no evidence of ligamentous instability, and there was reasonably maintained musculature around the knee.
(d) Extensive deep vein thrombosis in the right leg
(a) Evidence of a pre-existing deep vein thrombosis
The defendant pleads that Mrs Smith's injuries were caused or contributed to by a pre-existing deep vein thrombosis. The evidence of a preexisting deep vein thrombosis arises, firstly, from Mrs Smith stating in the Melville Chiropractic Health summary signed by her on 30 April 2008 that she was, as at that time, on medication of half an aspirin daily for a 'blood clot' in her right leg; and, secondly, it is recorded in the medical records of the Fremantle Hospital that Mrs Smith had a history of deep vein thrombosis in 2006 and six months earlier associated with her pregnancy. However, there is clear evidence there was confusion between a deep vein thrombosis and a superficial thrombophlebitis. Dr Cooper's evidence was that in July 2005 Mrs Smith consulted him about a superficial thrombophlebitis just above the right ankle. Dr Cooper's evidence was that a thrombophlebitis is a clotting of superficial veins and is different to deep vein thrombosis. In 2005 he prescribed aspirin. Again in November 2005 Mrs Smith consulted Dr Cooper concerning her thrombophlebitis and was concerned that her condition might be a deep vein thrombosis. Mrs Smith at the time was about to fly to Melbourne. Dr Cooper examined her and found there was no sign of deep vein thrombosis. Again in January 2008, following the birth of Brielle, Mrs Smith had a further episode of superficial thrombophlebitis and was given an anti-coagulant injection at hospital and told to wear compression stockings.
Dr Cooper in a report dated 11 January 2009 stated that the development of a severe right deep vein thrombosis around 10 August 2008 was directly triggered by the accident, the operation on the femur and subsequent restricted mobility. Dr Ker also gave evidence that the deep vein thrombosis diagnosed in August 2008 was caused by the accident. These opinions were not challenged in cross‑examination and nor was any other medical evidence presented to the contrary.
(b) Disabilities arising from the deep vein thrombosis
It is common ground that the deep vein thrombosis suffered by Mrs Smith in August 2008 caused swelling in her right leg above the ankle. Dr Cooper in his report of 11 January 2009 stated that the deep vein thrombosis had further restricted Mrs Smith's mobility, slowed her recovery in general, slowed her walking recovery and interfered with her sleep. In a report dated 21 October 2012 Dr Cooper stated that he observed multiple small varicose veins in the lower right leg and these were largely secondary to Mrs Smith's deep vein thrombosis.
Dr Ker in a report dated 1 February 2012 stated as follows:
With respect to the deep vein thrombosis that occurred in your client's right lower limb, whilst patency of those veins has now been re-established through treatment, deep vein thrombosis regularly results in a circumstance where there is irreversible damage to the intravascular valves of the lower limb veins. As result, those veins can become incompetent with resultant distal swelling of the affected lower limb. Such distal swelling can restrict mobility and result in pain.
Mr Kimberley stated that Mrs Smith may experience problems such as ulcers and varicose veins as a result of her deep vein thrombosis. The varicose veins may require surgery. Further, Mr Kimberley stated that Mrs Smith may require skin ulcer treatment and anticoagulation therapy. He expressed the opinion that she is at a greater risk than the normal population of suffering a further deep vein thrombosis with plane travel.
Dr Flahive's evidence was that the swelling arising from Mrs Smith's deep vein thrombosis could be improved with a regular programme of exercise and the use of compression stockings.
(e) Spinal injury
(i) Prior back complaints
The evidence of Mrs Smith was that she experienced back pain associated with the birth of Brielle in December 2007. After Brielle's birth Mrs Smith said her back was very sore. She sought relief from what she described as a deep massage therapist and then consulted a chiropractor at the Melville Chiropractic Centre. Mrs Smith said she had two sessions of chiropractic treatment prior to the accident for this back pain and was due for a check-up on the Saturday after the accident but the appointment was cancelled due to her accident injuries. Mrs Smith said that she was advised by the chiropractor to wear a back brace in the form of a tool kit that could be purchased from a hardware store. Mrs Smith said that she wore the brace for about a month and this 'virtually fixed the situation' (ts 164).
Mrs Smith said that by the time of the accident the back pain was 'virtually better' (ts 33).
Mrs Smith said that the only time she had seen a chiropractor prior to the birth of Brielle was 20 years earlier when her mother had arranged a consultation with a chiropractor because Mrs Smith had complained of back soreness. Other than this episode, Mrs Smith said her only episodes of back pain occurred when she was pregnant and when giving birth to her children. At such times she would get her husband to massage her back to provide pain relief. This was confirmed in Mr Smith's evidence. Mr Smith stated that he had not been aware at the time of the accident that his wife had consulted a chiropractor after Brielle's birth. I believe this and other evidence of Mr Smith provides some insight into Mrs Smith's character. I conclude that generally she is not a person to make a fuss about pain being experienced by her. This is confirmed in the evidence of Dr Cooper who described Mrs Smith as a 'stoic' person (ts 244).
The defendant placed considerable reliance upon a form completed by Mrs Smith on 30 April 2008 at the Melville Chiropractic Centre as evidence to suggest that Mrs Smith had a significant back complaint prior to the accident. In the form Mrs Smith stated that her 'chief complaint' was 'Aching Back/Crooked Spine/Poor Posture'. On a sketch plan of the body she indicated the areas of pain were in the lower back and thoracic areas. She gave the subjective grading of her pain as seven (10 being the worst pain imaginable). She described the activities that aggravated the pain as 'stress'. To the question of what relieved the pain she replied 'massage'. In response to the question as to prior intervention she replied 'Bowen Therapy/Deep Tissue Massage'.
A radiological report dated 9 May 2008 sent to the Melville Chiropractic Clinic stated that Mrs Smith suffered from scoliosis to the spine, an increase in the dorsal kyphosis and there were osteophyte formations and disc space narrowing maximal through the midthoracic region.
All of the medical experts who gave evidence at the trial (other than the psychiatrist, Dr Skerritt) were questioned about the significance of the pain episode experienced by Mrs Smith prior to the accident and the significance of the radiological report of 8 May 2009. In relation to the question of the significance of the prior back pain episode after Brielle's birth, the opinions must be treated with some caution because none of the doctors examined Mrs Smith at the time.
Dr Cooper's evidence was that Mrs Smith had not complained to him prior to the accident of back pain and he was not aware that she had consulted a chiropractor after the birth of Brielle. Dr Cooper had been Mrs Smith's family doctor since January 2005. Dr Cooper expressed the opinion that Mrs Smith's complaints of pain in her neck and thoracic areas after the accident were due to the accident and not due to any underlying condition.
Dr Ker, a consultant physician in rehabilitation medicine, saw Mrs Smith on two occasions (17 October 2011 and 14 September 2013) on referral from Mrs Smith's solicitors. Dr Ker expressed the opinion that given Mrs Smith's scoliosis, the degenerative changes in her thoracic spine and the history of thoracic and lower back pain immediately prior to the accident, he could not exclude these factors as continuing contributors to her complaints of back pain after the accident. However, Dr Ker conceded that there were people with scoliosis who remain asymptomatic and that Mrs Smith may have just experienced a short episode of back pain after childbirth (like many women do) and it have may have resolved itself.
Mr Kimberley stated that although he believed that Mrs Smith's cervical symptoms were caused by the accident, he could not exclude there may not have be other contributing factors. He said women often experience episodes of back pain following childbirth and, likewise, most people experience episodes of back pain and seek treatment some time in their life. However he believed that, although it was possible, he did not think it was likely that Mrs Smith would have gone on to experience continuing back pain in the future as a result of her pre-existing condition and episode of back pain.
Mr Holthouse expressed the view that Mrs Smith's pre-existing scoliosis was not significant. He stated that episodes of back pain were not uncommon and most back pain resolved itself within a three to sixmonth period. He expressed the opinion that Mrs Smith's pre-existing condition meant that she was more likely to have experienced ongoing symptoms after the accident but if she had not been involved in the accident, the risk of her experiencing ongoing back symptoms in the future was about 10 to 20% higher than the risk faced by the general population (ts 470).
Mr Hardcastle expressed the opinion that Mrs Smith had a fairly significant pre-existing condition by virtue of her scoliosis and kyphosis. Mr Hardcastle expressed the opinion that this pre‑existing scoliosis and kyphosis predisposed Mrs Smith to back pain as a result of her motherly and domestic duties and without an active exercise programme to increase the strength of her spinal muscles she would have experienced further back pain regardless of the accident.
Mr Anastas stated that scoliosis does not necessarily produce symptoms. He said there was nothing in the medical literature to suggest that a patient with idiopathic scoliosis is more susceptible to symptoms or to injury than anyone else. Likewise, the presence of osteophytes does not necessarily mean that they will give rise to symptoms. Mr Anastas also stated that it was not unusual for women to have backache in the latter parts of pregnancy. He stated that such back pain usually resolved itself within three to four months. The reason for the back pain was that all the ligaments in the pelvis and lower spine relax to allow for the birth of the child. It usually takes about three to four months for these ligaments to tighten up. However, there can be an exacerbation due to the mother having poor posture, feeding or lifting the baby. He thought it was somewhat unusual in this case that chiropractic treatment was sought.
Dr Flahive, in taking a history, incorrectly recorded that Mrs Smith had a chronic 20‑year history of back pain. He was apparently relying upon some chiropractic records of the Melville Chiropractic Centre but Mrs Smith's instructions to the chiropractor, as confirmed by the form she completed on 30 April 2008, was that prior to seeking chiropractic treatment after the birth of Brielle, her last chiropractic treatment had been 20 years earlier.
Dr Flahive in a written report dated 31 May 2013 stated as follows:
Certainly, given the objective findings and the results of investigations to date, it would seem that Ms Smith's spinal pain is largely postural and muscular in nature and may relate to a soft tissue strain injury arising from the accident or more probably are more long standing symptoms for which she had previously sought treatment.
Dr Flahive acknowledged that it was a common experience of women that they experienced episodes of back pain when they had babies.
(ii) Accident spinal injuries
Mrs Smith in her evidence complained of ongoing symptoms to the right side of the neck. The pain extends into the shoulder and down into the upper back. Mrs Smith said that the pain in her neck provided no major restriction in her activities, such as driving, but it was painful.
Mrs Smith also complained of bad headaches associated with the neck pain. She said the headaches lasted three to four hours. She said that she tries to alleviate the headaches by first massage and by sitting down and resting. If the headaches persist she then takes Nurofen or Panamax.
Mrs Smith also complains of pain in the lower back. She said that after the accident she experienced a sensation of ants crawling down the right leg coming from the lower back. She said the pain was intense and in desperation she sought treatment from the Bowen therapist who was attending her son Walter and she also undertook chiropractic treatment. Mrs Smith said that she experienced lower back pain when seated for long periods.
Dr Cooper in a report dated 9 March 2010 described that Mrs Smith had suffered a mild to moderate soft tissue 'whiplash' type injury of the neck with subsequent headaches. He also described in a medical report dated 21 October 2012 that Mrs Smith suffered a persistent feeling of 'ants' in her lower back and down her right leg plus moderate to severe pain in the same areas. Dr Cooper said in his evidence that the sensation described by Mrs Smith of feeling ants was possibly related to shingles or may be due to other causes related to the accident.
Mr Kimberley, in a report dated 12 September 2013, identified that Mrs Smith was currently complaining of symptoms in the cervical spine and lumbar spine and was having persistent problems with headaches. Mr Kimberley was primarily concerned with Mrs Smith's right limb problems but made a recommendation to Dr Cooper in a report dated 13 July 2009 that Mrs Smith undertake, in relation to her cervical and lumbar spine pain, ongoing physiotherapy with a gym‑based exercise programme. Nothing was done to implement this recommendation.
Mrs Smith was referred to Mr Holthouse to specifically treat her for pain she was experiencing in her spine. Mr Holthouse's evidence was that on examination he ascertained that Mrs Smith was tender over the facet joints. He said that this was the most common site of spinal pain. Mr Holthouse stated that when Mrs Smith first consulted him the most overriding pain was in the thoracic spine area but she also had pain in the cervical spine and lumbar spine. Mr Holthouse stated that it was not surprising that there was pain in multiple parts of the spine because an accident of the severity and type suffered by Mrs Smith would have caused a shakeup of the whole body and also pain and tenderness in the facet joints is rarely confined to one part of the spine as the facet joints are interlinked.
Mr Holthouse, in a report dated 4 November 2013, stated as follows:
I previously ordered an MRI of her cervical spine and lumbar spine for ongoing lower back and neck symptoms. Again, this MRI was arranged because of her ongoing symptoms. It shows disc changes at L5 – S1 and had no other surgical correctable lesion is. She did however have tenderness over her cervical facets, described radicular pain and subsequently has had a partial response to blocks. I think that much of the diagnosis is related to ligamentous/facet sprain type injuries. At L5 – S1 disc is also contributing to her symptoms.
The symptoms have now stabilised and I do not see that they will alter for the foreseeable future.
Mr Holthouse's evidence was that in his opinion what was required in the future by way of treatment was the continuation of analgesics and for Mrs Smith to develop an exercise programme under the supervision of a physiotherapist. He suggested that injections may assist in providing temporary relief and help to identify the joints the physiotherapist needed to work on. He acknowledged that Mrs Smith's family responsibilities may make it difficult for her to implement an exercise programme and what was needed was a lifestyle change to incorporate such exercises as swimming and hydrotherapy to improve her core muscle strength.
Dr Ker in a report dated 1 November 2013 stated that on examination of Mrs Smith he found she exhibited curtailment of her range of neck movements particularly in extension and rotation. He also noted there was midline tenderness in the lower cervical spine and to the right of the midline. He also noted that Mrs Smith exhibited a curtailed range of right‑sided shoulder movements with flexion to 140 degrees and similar with abduction, and there was a subtle reduction of the extremes of external and internal rotation of the right shoulder. He also observed that Mrs Smith continued to complain of low lumbar back pain and noted a global curtailment of all lumbar spine movements. He considered that Mrs Smith has a residual disability and that this residual disability will continue.
Dr Ker stated that Mrs Smith will need to maintain regular medication, as well as a systematic programme of musculoskeletal exercise to maintain mobility, flexibility and, with it, pain control. Also, he expressed the opinion that if Mrs Smith has an ongoing and intrusive level of pain in her spine, consideration of further procedural treatment in the form of facetal injection or facetal cryorhizotomy may need to be considered.
In a report dated 30 April 2013 Mr Anastas stated that on examination of Mrs Smith on 30 April 2013 he noted tenderness in the cervical, thoracic and lumbar areas of the spine. In relation to the cervical spine, on testing he found a full range of lateral flexion, extension and forward flexion. On rotation there appeared a slight limitation and Mrs Smith experienced a pulling sensation down the right side of the neck with extreme rotation to the left. Mr Anastas stated that Mrs Smith demonstrated a good range of rotation, lateral flexion and extension of her thoracolumbar spine. Mrs Smith experienced a pulling sensation over her right upper back with extremes of all movements. The extreme of extension caused discomfort over her right upper back and lower back.
Mr Anastas concluded that Mrs Smith had suffered a soft tissue musculo‑ligamentous injury superimposed upon degenerative changes. He noted that on her attendance on 30 April 2013 she gave a history of a spontaneous 50% increase in her cervical spine symptoms, 40% increase in the upper back symptoms and a 50% increase in her lower back symptoms. He opined these increases were due to the natural progress of degenerative changes. However, he admitted in crossexamination that he had not taken into account psychological factors.
Mr Anastas gave the prognosis that Mrs Smith will make a full recovery without any permanent disability in relation to the injuries she suffered to her cervical, thoracic and lumbar spines.
Dr Flahive, in his report dated 31 May 2013, concluded that it would seem Mrs Smith's spinal pain is largely postural and muscular in nature and may relate to a soft tissue strain injury arising from the accident or, more probably, more longstanding symptoms for which she had previously sought treatment.
(f) Mental health injuries
Mrs Smith's evidence was that after the accident when she returned home she suffered nightmares about the accident.
Since the accident Mrs Smith says that she is on edge with the children the whole time and often yells at them. She also suffers anxiety when she is in a motor vehicle, particularly when she is a passenger. She says when driving by herself she experiences sweating and suffers palpitations. Mrs Smith said she also has difficulty concentrating generally. This affects her planning daily routines or focusing on workrelated tasks. She also found it difficult coping with therapists attending the home to treat her son Walter as she had difficulty planning these therapy visits. She made alternative arrangements for Walter to be treated at school. She stated that because of her pain and mental issues she is unable to maintain the household in the same orderly way she did prior to the accident and this makes her very depressed as she was always a very efficient and ordered person. She also says that she finds it difficult to cope with attending church as frequently as she previously did and having visitors to the house.
Dr Cooper in his evidence described Mrs Smith on his first visit to her on 5 August 2008 as being tearful and he provided counselling to her. Dr Cooper stated in his evidence that since the accident Mrs Smith has coped remarkably well with her physical injuries but she is not the woman she was before the accident.
Dr Cooper stated that as of November 2008 Mrs Smith developed shingles which he believed was caused by the stress arising from the accident. In May 2009 Dr Cooper referred Mrs Smith to Dr Paul Skerritt for ongoing mental health issues.
Dr Skerritt first saw Mrs Smith in May 2008. Dr Skerritt described Mrs Smith from the history he took as a very religious, conscientious and obsessive woman before the accident. She had described herself to Dr Skerritt as being a perfectionist of very high standards. Mrs Smith described to Dr Skerritt as having low spirits since the accident. She described herself as being quite guilty of her relative incapacity, blaming herself and wondering what she had done wrong.
Dr Skerritt diagnosed Mrs Smith as suffering from post-traumatic stress disorder with symptoms of anxiety and depression. Dr Skerritt said that Mrs Smith's low spirits and blaming herself were typical symptoms of depression. He expressed the opinion that Mrs Smith was the type of person who did not find it easy to admit and describe her symptoms. Dr Skerritt stated that the anxiety component of the post-traumatic stress disorder commonly was associated with certain situations such as crowded supermarkets or driving. A person suffering from this anxiety typically either avoided such situations or faced up to them. Dr Skerritt believed that Mrs Smith was the type of person who attempted to face up to anxieties rather than avoid situations. Dr Skerritt stated that depression can cause the brain to slow down and concentration to be poor. It can also cause memory problems. He said that Mrs Smith manifested the symptoms.
Dr Skerritt prescribed Pristiq (which in 2009 was a new antidepressant medication) with a view to improving Mrs Smith's functioning. When Dr Skerritt reviewed Mrs Smith on 9 February 2010 she reported to him that she was very well and quite back to her old self. However he referred her back to Dr Cooper for ongoing supervision and recommended that she continue on her medication until all other medical and legal issues were resolved.
Mr Holthouse, in a report dated 10 April 2013, anticipated that the total costs of Mrs Smith's spinal treatment over the next 10 years would be somewhere in the order of $10,000 ‑ $15,000. Mrs Smith is currently aged 45 and I conclude that her treatment is likely to go beyond the 10year period due to its level of persistence since the accident. Mr Holthouse, in a report dated 15 January 2013, stated:
I think it is however unlikely that we will be able to get rid of every aspect of her pain and she will have some ongoing pain component regardless of what is done.
However Mr Holthouse in evidence indicated that he believed that Mrs Smith's condition would improve once the worry of litigation was removed. Mrs Smith also claims the need to attend a general practitioner four times a year. No evidence was presented by any expert supporting this claim. However, considering my findings to follow concerning future operative treatment I believe some moderate allowance should be made for future consultations with a general practitioner. Taking all factors into account, I conclude an appropriate award for future treatment in the form of consultations with a general practitioner, medication, occasional injections to provide temporary relief, a physiotherapy designed exercise programme and a maintenance of this program is $18,000.
Travel and compression stockings
In relation to compression stockings, Mrs Smith's evidence was that she was using one to two compression stockings per week. The wearing of compression stockings is supported by Dr Cooper and Dr Flahive (report dated 4 November 2013). Mr Kimberley in his evidence expressed some reservations about the wearing of compression stockings on a permanent basis.
The cost of compression stockings is $7.90. Based upon 1.5 pairs per week Mrs Smith claims the amount of $11.85 per week and uses a multiplier of 822.4 (based upon a life expectancy of 43 years) which produces a total of $9,745.44. I believe a more conservative approach is appropriate as I am not satisfied that Mrs Smith will continue to use compression stockings on such a regular basis. I accept Mr Kimberley's evidence that the use of compression stockings on a permanent basis creates some problems, principally I believe in relation to comfort. Also, as Mrs Smith becomes older and less active I conclude that she is likely to suffer less swelling. I conclude that a reasonable assessment for this item is $5,000.
In relation to travel expenses Mrs Smith claims an allowance of $1 per week. Based upon a life expectancy of 43 years the amount claimed is $822.40. I do not believe this is unreasonable and I will allow a round figure of $800.
Removal of metalwork from right femur
Mr Kimberley in his evidence stated that the likelihood of Mrs Smith requiring the removal of the rod was about 60% to 70% and that the procedure would take place within the next 10 years. Mrs Smith's evidence was that she would consider having the metalwork removed from her femur if the pain became excessive. As noted earlier in this decision, Mr Hardcastle agreed that it was not unreasonable to have the metalwork removed if the patient continued to experience discomfort.
I assess the appropriate allowance of this item to be $4,000 calculated as follows:
$8,250 reduced by 35% for the possibility that the surgery will not occur and multiplied by a 6% multiplier of 0.7474 to allow that the surgery expense will be deferred for five years [$8,250 x 0.65% x 0.74 = say, $4,000].
Right knee arthroscopy
Mr Kimberley's evidence was that Mrs Smith had a 60% to 70% probability of requiring a right knee arthroscopy within the next 10 years. He estimated that the costs of this will be approximately the same as the cost of removing the metalwork from the femur. Having accepted Mr Kimberley's evidence as to the nature and future progress of the knee injury, I allow the sum of $4,000 for this item using the same calculations that are used above for removal of the metalwork of the femur.
Right knee replacement
Based upon the evidence of Mr Kimberley I accept that there is a probability that Mrs Smith's right knee will deteriorate to the point that it will require replacement. Mr Kimberley in his evidence stated that the probability of this occurring was about 60% to 70% and that the procedure would take place sometime by age 70 (within the next 25 years). Mr Kimberley in his evidence stated that the likely costs of the surgery will be $25,000. Counsel for Mrs Smith submitted that I should use a deferral of 12 years but, in light of Mrs Smith's stoic nature, I believe it is more appropriate to make a calculation on the basis of a deferred expense of 25 years.
Based on the above, I will allow the sum of $4,370 for this item calculated as follows:
$25,000 reduced by 35% for the possibility that the surgery may never be undertaken and multiplied by a 6% multiplier of 0.233 for a deferral of 25 years [$25,000 x0.75 x 0.233= say, $4,370].
Right hip replacement
The evidence of Mr Kimberley was that the chance of a right hip replacement being required was about 15%20% sometime in Mrs Smith's lifetime. Unlike the knee replacement, Mr Kimberley did not suggest it would be within 25 years. He volunteered the opinion in crossexamination that the likelihood of Mrs Smith requiring a right hip replacement was more of a possibility then a probability. The force applied to the hip during the accident was an indirect force. There is no damage to the hip presently observable on scans. The other specialists who gave evidence concerning the possibility of a hip injury concluded that a hip replacement would not be necessary. Although I prefer the evidence of Mr Kimberley in relation to other matters, in relation to the hip replacement issue, considering the fact that Mr Kimberley acknowledges that it is more of a possibility than a probability, I do not believe on the totality of the evidence that I should make an allowance for a future hip replacement. I consider on all the evidence that the possibility is too remote.
Surgical treatment of forehead depression
As stated earlier in this decision, Mrs Smith has indicated that she wishes to undertake the second alternative recommended by Mr Gillett to correct her cosmetic disability to the forehead. In his report dated 20 September 2012 Mr Gillett stated that:
The filler does slowly resorb and over a period of 18 months to two years the filler will resorb and potentially would need to be repeated if Jacqueline was worried about the depression.
Mr Gillett estimated the fees of carrying out the procedure to be $1,200 as at 3 September 2012. Mrs Smith makes a claim based upon repeating the procedure every two years for 30 years. Counsel for Mrs Smith submits that the appropriate multiplier is 7.682 leading to a total claim of $9,218.40. Although Mrs Smith gave evidence that she intended to have the procedure, she did not give evidence that she was prepared to have it done every two years. I believe that as Mrs Smith becomes older the issue of the cosmetic disability will become less important to her and, given her stoic nature, she is less likely to be willing to undergo the procedure on a regular basis. I conclude that I should make an allowance of $5,000 for this item of future treatment.
Pristiq
Dr Paul Skerritt, in a letter addressed to Dr Cooper dated 10 February 2010, stated as follows:
I told her that she should not think of stopping the antidepressants until all the medical and legal matters are well sorted out and she has been perfectly well for at least a year after that. I warned her against the option of the so-called maintenance dose which does no more than increase the chance of relapse. The principle is that 'the dose that gets you better keeps you better'.
If she had been well for a year as above, you might try cutting the dose out quite gradually but completely and restarting quickly if there is any recurrence.
As stated earlier in this decision, Dr Skerritt is of the opinion that the prognosis for Mrs Smith will be clearer after the stress of the litigation is removed. I conclude that I should make an allowance for the medication continuing for a period of two years. The current dosage is 300 mg per day. This is equivalent to $17.25 per week. I assess the damages for item of future treatment as $17.25 x 98.5 (multiplier) = (say) $1,700.
Summary of damages for future medical treatment
In summary, I assess the appropriate award of damages future medical treatment to be $42,870. I do not propose to make any adjustment for contingencies as I believe the positive and negative contingencies cancel one another out.
(e) Aids, appliances and home modifications
Mrs Smith's claims the following items for aids, appliances and home modifications:
1.Wall oven with side opening or sliding door;
2.Robotic vacuum cleaner;
3.Extra hose for ducted vacuum cleaner;
4.Thermomix;
5.Handrail onto the internal steps;
6.Toilet chair (in place of raised toilet pans);
7.Bed rail;
8.Handy bar;
9.Weight bearing grab rails (x 3);
10.Domestic passenger lift and lift service.
These items are based upon two reports of Ms Clare Cunningham, occupational therapist, dated 30 July 2012 and 3 October 2013. Mrs Smith in her evidence stated that some of the items recommended by Ms Cunningham were unnecessary or extravagant. These concessions by Mrs Smith again demonstrate her genuineness.
Ms Cunningham recommended an oven with a side opening or a slide away door. This was because Mrs Smith complained of lower back pain in reaching into her oven to remove hot and/or heavy items out of the oven. Ms Cunningham recommended two such ovens but Mrs Smith conceded that two such ovens were unnecessary. However, I am not satisfied that the recommended item will make a sufficient difference to justify its use. Even with a sliding door oven Mrs Smith would still need to reach in to remove items from the oven.
Ms Cunningham also recommended a robotic vacuum cleaner. The vacuuming is done by cleaners who are engaged two hours per fortnight or by family members. The house in which Mrs Smith lives has a ducted vacuum system and in my opinion a robotic vacuum cleaner is an unnecessary extravagance. Likewise, Ms Cunningham recommends a separate vacuum hose for upstairs because of the need to carry up a vacuum hose from the downstairs to the upstairs. However I am not satisfied this is required.
Ms Cunningham also recommends a Thermomix which is a device for chopping, cooking and stirring food. This recommendation is on the basis that it would reduce the amount of time Mrs Smith was required to be standing in the kitchen. In view of Mrs Smith's injuries I am satisfied this item is reasonable.
Ms Cunningham also recommended various support rails (items 5, 7, 8 and 9 above). Mrs Smith conceded these were unnecessary at the present time but may become needed if she has a knee replacement and hip replacement. However these are long-term predicted treatments. By the time the treatments are undertaken Mrs Smith may not be residing in the same house. On the basis of the evidence before me I am not satisfied that there is a reasonable probability that these expenses will be incurred.
Finally, Ms Cunningham recommends installation of a lift. Mrs Smith accepts again this is unnecessary at this stage but might become needed if she undergoes knee and/hip replacement. For the same reasons as I have given above for the various support rails, I am not satisfied that any allowance should be made for this item.
In summary, I allow the sum of $1,939 for a Thermomix.
(f) Special damages
Mrs Smith claimed $17,747.78 for outstanding special damages. Of this sum the defendant accepts liability for $10,676.28. The disputed items are as follows:
| 1 | Sheer relief light compression pantyhose to control swelling (based upon two pairs per week) | $790 |
| 2 | Remedial massage expenses on 21 occasions between 1 December 2008 and 31 January 2011 | $1,050 |
| 3 | Remedial massage expenses between 19 January 2012 and 18 October 2013 | $2,884 |
| 4 | Bowen therapy expenses between 19 November 2008 and 17 December 2008 (six sessions) | $100 |
| 5 | Bowen therapy expenses between 25 February 2009 and 4 June 2009 (six sessions) | $360 |
| 6 | Chiropractic treatment between 11 March 2009 and 24 April 2009 (seven sessions) | $315 |
| 7 | Consultation fee – Dr Susan Ho, 19 November 2010 | $170 |
| 8 | Travel expenses (2,805 km at $0.50 per km) | $1,402.50 |
In relation to item 1 the defendant does not dispute the need for compression pantyhose but disputes the quantity of the claim. No receipts were produced by Mrs Smith in support of the claim. The defendant was prepared to accept liability of $500 for this item. In the absence of receipts I award the amount of $500 as accepted by the defendant.
In relation to items 2 to 6, the defendant disputes the items relying upon the opinion of Mr Anastas. After Mr Anastas saw Mrs Smith on the first occasion on 7 April 2009 he issued a report dated 7 April 2009 which stated as follows:
She has had a significant amount of Bowen and Magnetic Therapy which does no more than give her partial relief of symptoms for one to two days, and therefore she does not have an indication for more of this treatment.
Chiropractic treatment gives her partial relief of symptoms for about one to two days, and therefore she does have an indication for more of this treatment.
She has been attending for massage, but this would only be of doubtful benefit and I would not advise it.
Both Dr Ker and Mr Hardcastle in their evidence described Bowen treatment as being in the nature of a form of mobilisation and exercise therapy.
The use of Bowen therapy, massage and chiropractic treatment was undertaken by Mrs Smith for pain relief at her own initiative. The treatment was not undertaken on referral from her treating doctor Dr Cooper. However these forms of treatment do not require a referral from a medical practitioner. Taking into account that Mrs Smith was severely injured in the accident and has suffered significant pain, I do not believe it was unreasonable that she seek forms of treatment which may provide her with, at the very least, temporary relief of pain. It is not disputed by Mr Anastas in his report that the treatment provided such temporary relief. Also, in relation to Bowen treatment, it involves a form of mobilisation and exercise and Dr Ker, Mr Holthouse and Dr Flahive all recommended an exercise based form of treatment. However, there is a risk that when such forms of treatment are sought by an injured person without a medical referral the number of sessions may become excessive. Accordingly, I believe a conservative approach ought to be taken when making allowance for these expenses. Items 2 to 6 total $4,709. In relation to these items I will allow $3,500.
Item 7 relates to a consultation fee of Dr Ho on 19 November 2010. The defendant disputes this item on the grounds that the account from Dr Ho relates to symptoms which were not accident related. The defendant relies upon the evidence of Dr Cooper to contend that the referral related to Mrs Smith suffering blurred vision and a heaviness of the tongue. Counsel for Mrs Smith concedes that these symptoms are not related to the accident. However, in my opinion, the consultation with Dr Ho was not primarily concerned with these non-accident symptoms. Dr Cooper's evidence was that the referral related also to headaches, neck pain and other neurological symptoms. A report issued by Dr Ho dated 19 November 2010 makes no mention of considering the symptoms of blurred vision and a heavy tongue. The report states that Mrs Smith came to see Dr Ho because of ongoing upper back pain. I am satisfied that these symptoms relate to the accident and the account of $170 should be allowed as a special damage.
Item 8 is a claim for travelling expenses for medical treatment. No breakup of the amount claimed is presented. In the absence of such details the defendant is prepared to agree to $1,000 only. In view of the lack of supporting evidence and details of the claim, I will allow the $1,000 admitted by the defendant in relation to this item.
In summary:
1.Non-disputed items of special damages: $10,676.28
2.Disputed items of special damages: $5,170.00
Total:$15,846.28
(g) Non-pecuniary
General damages are awarded for non-pecuniary loss such as pain and suffering, loss of amenities, loss of enjoyment of life, the curtailment of expectation of life in bodily or mental harm (see De Blank v Stemberger[2000] WASCA 358.
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides limits to the amounts that can be awarded for general damages.
A trial judge is required to undertake an assessment based upon the right proportion between a most extreme case and the case being assessed (see Hendrie v Rusli[2000] WASCA 249; De Blank v Stemberger; and Villasevil v Pickering). A most extreme case might be paraplegia, particularly of a young person (see Hendrie v Rusli). However, in Villasevil v Pickering Grove AJ stressed that the ceiling figure is a range of situations which could be described as 'a most extreme case' and is not to be considered against 'the most extreme case'. In making the assessment the court is not only required to take into account the disability from the time of the accident to the time of trial but the various future hypothetical events impacting upon the assessment of the disability (see Malec v JC Hutton Pty Ltd). Accordingly, in assessing general damages I should take into account the degree of probability of the plaintiff being able to make a recovery as I have outlined earlier in this judgment.
Counsel for Mrs Smith submits that Mrs Smith's entitlement for nonpecuniary damages should be based upon 35% of a most extreme case. This is on the basis that I accept all of the submissions made on behalf of Mrs Smith as to her disabilities. Counsel for the defendant submits that the amount I ought to allow for non-pecuniary loss is 20% of a most extreme case. Similarly, this is based upon me accepting the submissions of the defendant which are substantially dependent upon the opinions of Mr Anastas, Mr Hardcastle and Dr Flahive, being the expert witnesses called by the defendant.
For reasons given earlier in this decision, I reject the opinions of the expert witnesses called by the defendant as to the extent of the injuries and disabilities suffered by Mrs Smith. However I do accept that Mrs Smith's condition will improve once the litigation is finalised and she undertakes an exercise programme recommended by Mr Holthouse in relation to her spinal injuries.
Taking all factors into account, I assess that Mrs Smith's entitlement to non-pecuniary loss to be 30% of an extreme case and, accordingly, I will allow $113,700.00.
Summary of award
In summary I award to Mrs Smith the following:
| Wilson v McLeay damages | $750.00 |
| Past loss of earning capacity | $32,621.05 |
| Interest on past loss of earnings | $4159.18 |
| Future loss of earning capacity | $40,000.00 |
| Loss of opportunity to expand business | $25,000.00 |
| Past gratuitous services | $36,359.93 |
| Interest on past gratuitous services | $4,635.89 |
| Future gratuitous services | $44,376.00 |
| Future medical needs | $42,870.00 |
| Aids, appliances and home modifications | $1,939.00 |
| Special damages | $15,846.28 |
| Non-pecuniary loss | $113,700.00 |
| TOTAL | $362,257.30 |