Stanford v Dermejian
[2020] ACTSC 151
•12 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stanford v Dermejian |
Citation: | [2020] ACTSC 151 |
Hearing Dates: | 28 October 2019 – 31 October 2019; 11 March 2020 – 13 March 2020; 15 April 2020 |
DecisionDate: | 12 June 2020 |
Before: | Crowe AJ |
Decision: | See [438] |
Catchwords: | DAMAGES – PERSONAL INJURY – motor vehicle accident – where the accident was minor – whether the plaintiff’s ongoing symptoms were caused by injury or an underlying degenerative condition DAMAGES – PAST AND FUTURE LOSS OF EARNING CAPACITY – whether disability insurance payments should be taken into account in assessment of damages – whether damages should be reduced EVIDENCE – HISTORIES IN MEDICAL REPORTS – Application under s 136 of the Evidence Act 2011 (ACT) to limit use – application refused |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 45, 100 Court Procedures Rules 2006 (ACT) sch 2 pt 2.1 Transport Accident Act 1984 (Vic) s 104 |
| Cases Cited: | Collins v Sydney Ports Corporation [2012] NSWSC 115 Transport Accident Commission v Sweedman (2004) 10 VR 31 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) |
Parties: | Seanna Stanford (Plaintiff) Anna Dermejian (First Defendant) Insurance Australia Limited Trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel A Muller & L Edwards (Plaintiff) J Pappas (First and Second Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (First and Second Defendant) | |
File Number: | SC 61 of 2017 |
Crowe AJ:
Introduction
On 4 September 2013, Ms Seanna Stanford (the plaintiff) was driving home from work when her car was struck from behind by a vehicle driven by Ms Anna Dermejian (the first defendant) (the accident). NRMA Insurance (the second defendant) is the compulsory third-party insurer of the first defendant. The defendants have admitted liability. The issue before the Court is the quantum of damages properly recoverable by the plaintiff.
The plaintiff claims that at the time of the accident, she was on a career path leading to partnership in a major accounting and consulting firm, such as Ernst and Young (EY). The plaintiff says that the injuries she suffered in the accident and the related disabilities have caused the loss of her capacity to work at that anticipated level. The plaintiff says that her current work capacity is much lower than it was before the accident and that, consequently, she will suffer significant financial losses. The defendants take issue with those claims. The defendants say that the accident was minor and that the plaintiff’s claims are exaggerated. The defendants say that whatever employment difficulties the plaintiff has had were not caused by the accident.
Factual evidence
The plaintiff – evidence-in-chief
The plaintiff was born in June 1976. She was 37 years old at the time of the accident and was 43 years old at the time of giving evidence.
The plaintiff was born in Nhill, a small town in western Victoria. She completed her schooling to Year 12 in Nhill. During high school, the plaintiff was very active in sport and represented the state of Victoria in hockey. The plaintiff also won some Victorian titles in athletics.
In 1996, the plaintiff graduated from the Victoria University of Technology with a degree in Applied Science and Physical Education.
In 1997, the plaintiff underwent a surgical procedure on her jaw. The plaintiff has had no ongoing problems as a consequence of that operation. In that same year, the plaintiff commenced work as a facilities manager at a recreation centre. The plaintiff described her work as involving pool maintenance, management of staff, and canteen duties. She did that for approximately two years.
In 2002, the plaintiff graduated from La Trobe University with a degree in Commerce. While she was studying, the plaintiff also worked part-time as an aquatics manager at the La Trobe University sports centre.
In early 2002, the plaintiff obtained a graduate accountant position with EY. After 12 months in that position, the plaintiff was able to, and did, commence study for what is referred to as a “Professional Year”. As I understand it, this study was in addition to the plaintiff’s full-time work duties. This qualification commonly takes longer than a year to complete and took the plaintiff two and a half years.
The plaintiff described her early years at EY as “extremely hectic”. During this time, the plaintiff was also playing hockey at a high level. The plaintiff described a mix of training, study and work from 5:00 am into the evenings.
In 2003, the plaintiff travelled to the Netherlands where she worked and played a season of hockey.
After returning from the Netherlands, the plaintiff continued working in an audit role with EY in Melbourne until early 2006, when she transferred to a similar role with EY in Canberra. The plaintiff sought that transfer because her then partner had been offered a job in Canberra. The plaintiff referred to the transfer as a “secondment”, which was initially for a period of two years.
It is necessary to refer to the plaintiff’s medical history around the time of the move to Canberra.
In 2004, the plaintiff’s grandmother was diagnosed with a terminal illness. The plaintiff had been very close to her grandparents. Her grandmother’s illness caused the plaintiff to become very upset. It is apparent that she visited her General Practitioner (GP) around this time, complaining of a loss of concentration. While the plaintiff did not recall seeing her GP when asked during her examination-in-chief, she did recall having problems with concentration at that time. The plaintiff did not remember receiving treatment, although she did have some time off work. The plaintiff’s symptoms continued for a short time and then resolved.
In January 2006, the plaintiff commenced a course of chiropractic treatment with Peak Chiropractic in Melbourne. She said that she had had some flexibility issues as a result of the “wear and tear” on her body from hockey. The plaintiff said that she found the chiropractic treatment to be helpful. She continued with chiropractic adjustments with the Canberra Spine Centre after her relocation to Canberra.
In May 2006, the plaintiff was admitted as a member of the Institute of Chartered Accountants (ICA).
Following the move to Canberra, the plaintiff said that she worked long hours. The plaintiff played some occasional games of hockey, however her main exercise consisted of walking, jogging and mountain bike riding. The plaintiff said that during this time, she was able to do her work and engage in her recreational activities without any physical or mental restrictions or difficulties.
When the two year “secondment” came to an end, the plaintiff changed roles within EY Canberra, moving from audit work to a consultancy role. This involved an increase in pay.
The plaintiff’s daughter was born in October 2008 and her son was born in June 2010. The birth of her first child was difficult, and the plaintiff continued with the chiropractic treatment she had been having since moving to Canberra.
In early 2012, the plaintiff was offered a job with the Australian Maritime Safety Authority (AMSA). This was planned to be a 12-month appointment to manage a specific project, that being the national codification of the relevant legislation under which AMSA operated. The plaintiff was placed on a salary of $150,000 per annum (including superannuation).
At the end of the 12-month appointment, the plaintiff applied for a longer-term role with AMSA in the area in which she was working. The plaintiff was successful in obtaining the position. The plaintiff’s duties and hours did not change in any significant way. The plaintiff was in this role at the time of the accident.
The plaintiff said that in the period just before the accident she had no physical restrictions in carrying out activities such as walking, jogging, bike riding, and in performing what was required of her as a parent of young children. The plaintiff also had no physical restrictions in attending to home duties and gardening.
The accident occurred during the plaintiff’s journey home from work on 4 September 2013. She had driven along Ginninderra Drive intending to turn right into Lance Hill Avenue, Dunlop. The plaintiff described what happened next as follows (Transcript, p. 22 l. 41-5):
I heard the screeching of the tyres. I went to – I took my foot off the brake to sort of see if I could get my foot on the accelerator to move forward down, you know, straight down Ginninderra Drive rather than turn right and didn’t get to that.
In response to a question about what she felt, the plaintiff said (Transcript, p. 23 l. 1-10):
I just hit my head very hard against the headrest, just going backwards and it was a very hard hit and then I was just sitting there wondering if I was okay and then checked that I could move everything and felt scared. I felt like I was in a position where – was I going to get hit again. Checked if there was any oncoming vehicle and there wasn't so I turned right as I was going to but as I turned right I realised I was slightly past [sic] the intersection so I kind of had to go right and then come back a little bit into Lance Hill Avenue and then I pulled off – straight off the road.
The plaintiff noticed that the first defendant’s car had stopped on the other side of Ginninderra Drive. The plaintiff said that there had been three people in the first defendant’s car, two males and one female. The plaintiff said that the two males walked towards the plaintiff and spoke to her. During that conversation, one of the males informed the plaintiff that he had scratches on his legs, and that the female also had scratches “or things” on her legs. These scratches were said to have been caused by contact with the dashboard of the vehicle.
The plaintiff contacted the police by telephone. The police advised the plaintiff to report the accident online. She then drove home. She was not feeling well and went to bed. The next day the plaintiff went to work but was unable to present a paper that she was due to deliver. The plaintiff said that she was feeling groggy and asked if she could go home. The plaintiff went to the doctor and saw Dr Lo, as her normal GP was away. She said she was suffering stiffness and feeling groggy and unwell. She may have had some discomfort in her neck, but not what she would describe as pain.
The plaintiff could not recall how much time she had off work around the time of the accident. She said that in the weeks and months after the accident her neck became very stiff, that she was feeling very unwell and over time she began to suffer headaches. She noticed that the back of her head, where she had hit the headrest, was very sore to touch. The plaintiff said that she was also struggling at work during this time.
Eventually, the plaintiff saw her usual GP, Dr Tang. Dr Tang recommended a course of physiotherapy, which the plaintiff undertook. The treatment started on 20 December 2013. The plaintiff had also sought chiropractic treatment on 19 November 2013. The plaintiff said she had not sought that treatment earlier because she did not want anyone touching her neck.
The plaintiff found that she was not coping at work. She was labile and, at some time before Christmas 2013, she went to her doctor and was given leave for a week. Around that time, the plaintiff had a stressful interchange with a superior about her role at AMSA. In early 2014, the plaintiff negotiated a termination of her contract and her last day with AMSA was 10 January 2014.
The plaintiff contacted some of her former colleagues from EY to seek alternative employment. This was successful and the plaintiff commenced working for a firm called RSM Bird Cameron (RSM). At RSM, the plaintiff managed a project at ActewAGL. The plaintiff said that she was only able to work part-time due to the condition she was in at that time. The full-time salary for the role was $175,000 per annum.
The plaintiff managed her duties at RSM but continued to struggle with tight and sore neck muscles and headaches. The plaintiff said that her sleep was also disrupted. She informed her supervisor at RSM, Mr Pucci, of her neck problems. The plaintiff did not seek to increase her hours from part-time, even though the work was available. The plaintiff continued with her chiropractic treatment and, in May 2014, she completed the program of physiotherapy recommended by Dr Tang. At some stage, Dr Tang referred the plaintiff to see Dr Howse, a sports physician.
Dr Howse made a number of treatment recommendations. He referred the plaintiff for further physiotherapy with Mr Cousins and for psychological assessment with Mr Sutton. Dr Howse also recommended a series of injections into the plaintiff’s neck area. The plaintiff had a series of injections monthly over three months. The plaintiff said that the injections were painful. While the injections appeared to relieve symptoms in the trapezius muscle, the symptoms in the plaintiff’s neck and the back of her head did not change. Nor did the injections relieve her headaches.
The physiotherapy treatment with Mr Cousins, which lasted for around 10 weeks, did not provide lasting benefit. The recommendations made by Mr Sutton included changes to the plaintiff’s diet with the hope that it would assist her memory function. The change in diet made no apparent difference.
On 22 September 2014, the plaintiff obtained a part time position (at 35 hours per fortnight) with the University of Canberra (UC). The UC job overlapped with her work at RSM until March 2015. In January 2015, RSM offered her a specific Senior Manager position working 30 hours per week. The RSM job would have required the plaintiff to relinquish her position with UC. The plaintiff asked for a deferral and subsequently informed RSM that she did not feel she could accept the offer. She decided to remain at UC. The plaintiff said that, given her condition, she felt that it would be better for her to stay at UC.
In relation to treatment around this time, the plaintiff saw Dr Eaton, an occupational physician, in December 2014. Dr Eaton recommended a course of treatment at the Canberra Injury Management Centre, which the plaintiff undertook over a period of 13 weeks. The treatment involved exercise, physiotherapy and psychological counselling. The plaintiff found the treatment helpful. However, it did not cure her symptoms.
The position at UC was flexible in terms of hours. While the plaintiff was nominally to work 50 per cent of full-time hours, she could work more if she felt up to it. Indeed, the plaintiff could have worked full-time, although she did not take up that offer. The job also provided the plaintiff with a stand-up workstation, which she found beneficial.
On 20 August 2015, the plaintiff was offered a new contract at UC for 80 per cent of full-time hours. She accepted that offer.
The plaintiff was taken, by her counsel Mr Muller, to a number of medical and medico-legal consultations which she attended in 2014 and 2015. She confirmed that her complaints as recorded in the reports were accurate.
On 24 February 2016, the plaintiff commenced a new role at UC. This involved working at 50 per cent of full-time hours within the Faculty of Health, where she would be reporting to Professor Gibson. It was described as project work. The full-time salary was $117,468.
The plaintiff said that she performed poorly in that role. She said that she was not “feeling very physically or mentally capable”. The plaintiff said that she was having neck flare-ups and headaches, that she was struggling with concentration, and that she found it very difficult.
In April 2016, the plaintiff sought an assessment and treatment with the Brain Training Centre. That involved MRI scanning and then some form of stimulation. The plaintiff found some improvement in her mental functioning, however the treatment seemed to aggravate her headaches, so she stopped.
In the following month, the plaintiff saw Dr Malhotra, a neurologist. Dr Malhotra conducted some neurological testing.
In December 2016, the plaintiff commenced a course of physiotherapy with a Sydney practitioner, Ms Rebbeck, who specialised in dealing with whiplash injuries. Ms Rebbeck referred the plaintiff to someone in Canberra who continued her style of treatment. The plaintiff found this treatment helpful. It seemed to provide her with longer periods between flare-ups and headache episodes.
However, after attending a psychologist at the Precision Brain Spine and Pain Centre in April 2017, the plaintiff suffered a particularly severe migraine headache. This led to an attendance at the Emergency Department of Canberra Hospital. The plaintiff was prescribed Endone and had some weeks off work at that time.
In May 2017, the plaintiff was referred to Dr Speldewinde, a pain specialist. Dr Speldewinde suggested a multi-disciplinary pain programme and a series of exploratory injections. However, the plaintiff consulted another pain specialist, Dr Jain, who had a different opinion from that expressed by Dr Speldewinde. As a result of seeing Dr Jain, the plaintiff decided not to undergo the injections. Dr Jain made recommendations about exercise and pacing, and referred the plaintiff to Mr Sparks, a psychologist.
Mr Muller took the plaintiff to a report written by Dr Champion following a medico-legal consultation in June 2017. She confirmed that the complaints recorded in that report were correct.
The plaintiff said that she continued to struggle with her work duties at UC. She was still having headaches and pain, she was having difficulty with memory and concentration, and she had problems with bright light. In that context, when the plaintiff was offered a voluntary redundancy in 2018, she decided to accept it. Her last day at UC was 8 March 2018.
Towards the end of the plaintiff’s work at UC, arrangements were made for her daughter to have surgical treatment for a problem with one of her heart valves. This was undertaken at a Sydney hospital on 28 March 2018. After a period of five weeks or so, the plaintiff and her family travelled by caravan around northern New South Wales until a medical review of the daughter’s condition in June 2018. Following the medical review, the plaintiff and her family travelled to rural Queensland, ending up in Winton by September 2018. They remained at Winton until November 2018. During that period, the plaintiff performed some part-time work on a grant submission of some kind. She found that working on the computer for periods aggravated her symptoms.
After leaving Winton, the family travelled south to Victoria and back to Sydney (for another appointment for the plaintiff’s daughter). In December 2018, the plaintiff’s partner, Bryan Coughlan, received a job offer in Yeppoon in Queensland. He accepted the position and the family moved to Yeppoon in January 2019.
After settling the family into a flat, the plaintiff commenced part-time work in April 2019 with a business named Keppel Konnections as a deckhand. The plaintiff was offered full-time work where she would perform deckhand and ferry duties on the ferry between Yeppoon and Keppel Island for three days, and two days doing office work. . The plaintiff found that the posture she was required to adopt to do the office work aggravated her condition, so she asked if she could just do the deckhand work. The deckhand work could be quite physical; it involved a mix of physical and non-physical duties with a lengthy break during the middle of the day. The plaintiff found that she could manage her symptoms quite well performing these duties.
At about the same time the plaintiff was offered the deckhand work, she was offered a part-time clerical job with the local Anglican Church. This involved computer work and church administration. Initially, the plaintiff worked only seven hours per week in this position, spread across two mornings. In September 2019, this was increased to 12 hours per week across three mornings, however this caused a flare-up of symptoms so it was decided that the plaintiff would reduce that to nine hours per week.
At the time of giving evidence (October 2019), in terms of leisure activities, the plaintiff enjoyed walking on the beach, learning to sail and yoga. She had tried some “cardio-tennis” with her children, which she would engage in when her symptoms were not too bad.
In relation to domestic duties, the plaintiff said that before the accident, she and Bryan shared the domestic work (inside and outside) more or less equally.
After the accident, while she was still working at AMSA, the plaintiff avoided domestic work which required her to use her arms. The plaintiff said that she had previously done a lot of gardening and she found she had to cut back due to difficulties getting up and down and using her arms with tasks such as pruning above shoulder height.
This remained the pattern with periods of reduced capacity during flare-ups for several years. By the time of the move to Yeppoon, the plaintiff had returned to performing an equal share of domestic tasks, although these were not particularly onerous while they were living in the flat. In September 2019, the family moved into a house. This coincided with the flare-up of the plaintiff’s symptoms, and Bryan has done most of the domestic work since that move.
The plaintiff was asked about her career aspirations at the time she was working at EY. She said that she wished to add a few positive entries to her resume and that she saw herself progressing to director level, (i.e. senior manager) and then to partner. She maintained those plans when she moved to AMSA.
The plaintiff said that she would not be presently fit to do the jobs that she was doing at EY, AMSA and RSM. The plaintiff said that she would not be able to sit at a desk in the postures required to do that work, and she did not believe that she had the mental capability for those duties. Indeed, the plaintiff considered that she would not be able to cope with the duties of the UC job she was doing up to 2018. The plaintiff is concerned as to how she and Bryan will be able to support the family in the future. But for the accident, she would have worked to normal retirement age.
The plaintiff said that her relationship with Bryan has been compromised by her injuries. This has included a reduced physical relationship due to her restrictions.
The plaintiff has commenced to see a GP in Yeppoon and has obtained a referral for physiotherapy. At the time of giving evidence, she was taking Panadol for pain, particularly after the September flare-up in her symptoms.
The plaintiff’s membership of the ICA has lapsed. She would have to do the “Professional Year” again to re-join the Institute.
The plaintiff – cross-examination
Mr Pappas, counsel for the defendants, asked the plaintiff for the detail of the items which she was required to lift or move in performing her deckhand work with Keppel Konnections. She said that it included suitcases, duffel bags, as well as boxes of food supplies and milk crates. One of the heavier items described by the plaintiff was bags of linen, which could weigh around 20 kilograms.
It was put to the plaintiff that she had suffered from a deteriorating memory since 2004. She denied that. She was then asked questions about her attendance at the Harding Street Medical Centre in November 2004. She did not remember the attendance, but she did recall that she was having memory and concentration problems, which she saw as associated with grief about her grandmother’s terminal illness.
The plaintiff was then asked further details of her work for Keppel Konnections, including her hours and duties. The plaintiff described having difficulty on a smaller ferry on rough days, which could sometimes lead to headaches on that day or the following day.
Mr Pappas asked the plaintiff if she had a diagnosed temporomandibular joint dysfunction. The plaintiff was not aware of that. She said that she had had jaw surgery when she was 21 for a malocclusion. It was major surgery, however she did not suffer ongoing symptoms.
However, the plaintiff said that in September 2019, she had developed a new pain up the side of her neck which had escalated into a headache. Mr Pappas questioned the plaintiff at some length as to whether she had made complaints about the flare-up to her supervisor or co-workers. The plaintiff denied complaining to her supervisor but did recall saying to one or other of her co-workers that the rough conditions would affect her or that she was finding sweeping difficult.
The plaintiff was cross-examined at some length in relation to the family’s finances in Yeppoon. The plaintiff said that Bryan was earning $400 per day as a relief teacher, although the plaintiff was not sure whether this was gross or net of tax. The plaintiff said that Bryan was working an average of two days a week, although he could work more on occasions. The plaintiff was in receipt of disability insurance of around $3,300 per month. However, the plaintiff had not worked out with any precision how much income was being received by herself and Bryan and what the family outgoings were. She said that she knew they were going “backwards” because of falling bank account balances.
Mr Pappas questioned the plaintiff on various medical records from 2004 and 2005/2006, which did not assist her to remember the details of those consultations. Mr Pappas also asked the plaintiff as to the differences between her pre-accident migraines and those following the accident, and explored the detail of the migraine episode in April 2017. Mr Pappas then moved on to the topic of sinusitis. He put to the plaintiff that she had suffered from chronic sinusitis for many years. The plaintiff denied that. She said that she had suffered from a number of bouts of sinus infections over the years.
In relation to chiropractic treatment after the move to Canberra, Mr Pappas put to the plaintiff that she had 22 visits to the chiropractor in 2006. The plaintiff did not cavil with that proposition. She said that she was attending for “maintenance” and to maintain flexibility. She remembered being stiff in her movements. She did not recall that she was suffering from pain. The plaintiff agreed that she had attended the chiropractor another 20 times in 2007, 18 times in 2008 and 30 times in 2009.
As to the occurrence of the accident, Mr Pappas suggested to the plaintiff that her vehicle had been knocked forward only one or two metres by the impact of the first defendant’s vehicle. The plaintiff disagreed with that. She said that she had been knocked forward the width of Lance Hill Avenue, although not to the point that she had to “double back” to make her right turn into that road after the accident. Upon further questioning, the plaintiff said that it felt as if she was knocked forward more than one or two metres, but that she could not really say how far the vehicle had been moved.
Mr Pappas put to the plaintiff that she had spoken to the first defendant at the accident scene and that she had told her that she was “all right”. They exchanged details and the first defendant said she was “fine”. The plaintiff did not recall that. The plaintiff thought that she first spoke to the other driver some time after the accident and that they had spoken over the phone.
The plaintiff was asked about her first consultation with a GP after the accident. She saw Dr Lo on 5 September 2013. His clinical note recorded a previous neck injury. The plaintiff said that the doctor had asked her if she had a neck injury or received treatment, and she had answered “yes”. She remembered that conversation because she had been asked about that record previously, either by a medical practitioner or one of her lawyers. She said that it stuck in her mind because she did not correct Dr Lo. Mr Pappas pointed out that unless she saw what Dr Lo had written, she would not have known to correct him at that time. The plaintiff was shown Dr Lo’s note. She had not seen it before.
Mr Pappas further questioned the plaintiff about the clinical notes of attendances on 13 September 2013 and 18 November 2013. The former note recorded, in addition to matters in relation to the plaintiff’s sinus, that she had “no pain on neck” and that her range of movement was normal. The plaintiff was asked if she had told the GPs she saw on 5 and 13 September that she had suffered a heavy blow on the back of her head. She said that she probably would have. She conceded that it was not recorded in the clinical note of either consultation.
On 18 November 2013, the plaintiff attended her normal GP, Dr Tang. Mr Pappas asked her whether she had the sharp pain at the base of her skull which she described in her evidence-in-chief by then. She said that she could not remember, but that she was sure she had it by November 2013. Mr Pappas squarely put to the plaintiff that the sharp pain complaint was a fabrication. The plaintiff denied that.
Mr Pappas took the plaintiff to the GP note on 11 December 2013. The plaintiff identified that attendance as the one where she saw the doctor with Bryan after becoming distressed at work. The plaintiff was asked about the circumstances leading to that attendance and ultimately to the termination of her employment with AMSA. Mr Pappas confirmed with the plaintiff that she had signed a deed of release with AMSA, and that the expressed reasons for the termination did not relate to her injuries or a complaint as to the adequacy of her performance at work.
On 10 February 2014, the plaintiff saw Dr Lo again. Mr Pappas took her to the clinical note of that attendance, which referred to the plaintiff hitting her head on a head rest. Mr Pappas put to her that was the first time that she had made that complaint to anyone. The plaintiff doubted that. She said that she had probably mentioned it to her chiropractor and/or physiotherapist.
Mr Pappas questioned the plaintiff about her attendances with a number of specialists in 2014, some of which related to symptoms which appear to be remote from the accident, such as blocked ears. This symptom was recorded in a letter of particulars provided by the plaintiff’s solicitors to the second defendant (see Exhibit D18, p. 11). The plaintiff said that she just provided her solicitor with the information as to all of the symptoms she was suffering at the time she was asked. In relation to the blocked ears, the plaintiff thought that it could have been related to the accident. She was asked about a range of other symptoms contained in the particulars, including pain and tightness extending into the thumbs, pins and needles on the inner left thigh, pins and needles in both feet into the toes, and morbid dreams. Again, the plaintiff said that she had just provided her solicitor with information as to her condition at the time she was asked. She did not know whether or not all of the symptoms related to the accident.
In relation to the morbid dreams, the plaintiff said, upon further questioning, that she had had many dreams about the accident, although she had not dreamt of dying in a car accident.
The plaintiff was asked about her consultation with the psychologist, Mr Sutton, in September 2014. Mr Sutton found an unusual difference between the plaintiff’s verbal and perceptual abilities. Mr Pappas put to the plaintiff that it was Mr Sutton’s opinion that the problems with her verbal memory processing were developmental, and not due to any acquired brain injury. The plaintiff did not accept that Mr Sutton was correct. She considered that her level of functioning had reduced after the accident.
The plaintiff was asked further questions about the circumstances of her separation from AMSA. She conceded that the termination of her employment had occurred pursuant to mutual agreement, not redundancy.
Mr Pappas then showed the plaintiff the Motor Accident Notification Form which she had completed after the accident. He pointed out to her that the location of her car immediately before the accident as depicted on a diagram in the form was not consistent with the location as described in her testimony before the Court. The plaintiff maintained that her description given in evidence was correct, and that the diagram was not accurate. The plaintiff was also asked about the Notice of Claim and Additional Information Forms and the Motor Accident Medical Report documents. She was not able to recall much about those documents.
The plaintiff was then taken to the clinical note of her attendance on Dr Tang on 17 July 2015 and a medical certificate which Dr Tang had provided on that day certifying her as fit to work four days per week. It was also put to the plaintiff that Bryan had suffered a heart attack on 11 July 2015. Mr Pappas suggested that the plaintiff had obtained the medical certificate so that she could take time off work to assist her partner. The plaintiff did not remember the consultation, however she doubted that that was the reason for her reduced hours. She pointed to the doctor’s note of “[p]oor sleep, panicky, anxiety worse in meetings”.
The plaintiff was asked about a different letter of particulars, dated 17 July 2015 (Exhibit “D18” pp. 14-17). It included a reference to a loss of fine motor skills. The plaintiff said that she had suffered from shaky hands which had, for example, caused problems with threading a needle. She said that she just reported this to her solicitor. She was not asserting that it was necessarily related to the accident.
Mr Pappas took the plaintiff to [38] of the letter which referred to Bryan’s heart attack. It stated that the plaintiff needed six hours of assistance per week, which he was unable to provide due to his condition. The plaintiff confirmed that, at that time, Bryan was not able to do what he had been doing around the house before his heart attack.
The plaintiff was asked about taking medication for her migraine condition. She said that while some doctors had said she could try that form of treatment, some had said it is a good idea not to. Mr Pappas explored this with the plaintiff. He put to her that specialist doctors had suggested that she could try medications which might prevent the severe headaches from coming on. The plaintiff did not recall the advice in those terms. She recounted conversations with Dr Jain and a GP in McLean, NSW in which she was told that it was her choice and that there could be side effects from the medication. She disagreed with the suggestion that the reason she did not take prophylactic medication was that she was not suffering the severe headaches as she claimed.
In relation to the claim for damages arising from the need for domestic assistance, the plaintiff said that, due to her injuries, Bryan was currently doing extra work, including cooking, washing, gardening, cleaning, grocery shopping and caring for their children. He was also doing administration and planning of the family affairs. In the aggregate, the plaintiff estimated that Bryan was providing between 15.5 and 19 hours per week of extra assistance because of her restrictions. Mr Pappas pointed out that in her statement of particulars, the plaintiff was only claiming two to four hours per week. The plaintiff said that she had been very conservative in making the estimation for the particulars.
Mr Pappas questioned the plaintiff as to the amount of driving she did when the family travelled from Winton, QLD to Sydney and thence to Victoria in December 2018. The plaintiff said that she did some of the driving, but that Bryan had done the majority. She did not recall how long the trip had taken. She said that she had driven for up to two hours and possibly longer, even up to five hours, although if she went too long it would have “consequences”. Mr Pappas took the plaintiff to the history given to Dr Reiters, a rheumatologist qualified by the defendants. The plaintiff saw Dr Reiters on 31 January 2019. Dr Reiters had recorded in her report that the plaintiff had said that she was limited to sitting in a car for up to two hours. The plaintiff said that the context in which she had provided that answer was that if she sat for longer than two hours, she would suffer consequences. Mr Pappas pointed out that the report made no mention of that.
Immediately following the reference to “two hours” in the report from Dr Reiters, the plaintiff was recorded as saying that if she did not have a head rest, she could sit for only 30 minutes. When this was put to the plaintiff, she said that she was not sure whether that was a reference to being in a car or not. She was challenged about this response, but maintained that she simply answered questions about various subjects and that sometimes in reports they are put together to give a different context.
The plaintiff was then asked about an attendance with Dr Eaton in Canberra on 20 December 2018. Dr Eaton recorded that the plaintiff had said that if she drove for more than one to two hours, she would have to take frequent breaks. The plaintiff confirmed that that was correct. Mr Pappas pointed out that Dr Eaton’s report said nothing about her being able to drive for up to five hours. The plaintiff conceded that, but said she could not recall exactly what she told Dr Eaton. The plaintiff said that she was just responding to his questions. She denied that she was exaggerating her limitations.
Mr Pappas questioned the plaintiff in relation to her evidence given during examination-in-chief that she had played the piano as a child. The plaintiff had said that she would like to have taken it up again but did not think she could sit for a long time at the piano. The plaintiff said that she had tried to play the piano since the accident, but only in a “minimalistic” way. She was unable to recall the duration of any particular attempt to play the piano, and she was unable to recall if she had suffered pain in such an attempt. Mr Pappas took the plaintiff to the report of Dr Eaton dated 2 September 2015 in which it was recorded that she had played the piano in the past but found it difficult to hold her arms up as they were weak. The plaintiff said that, at that point, her arms were weak. The plaintiff said that she was not misrepresenting her condition to the doctor.
The plaintiff was asked about other aspects of her history as given to Dr Eaton. The report noted that she had been a state level hockey player in the past, but “has not played since the accident.” Mr Pappas referred the plaintiff to her evidence-in-chief in which she had said that she had initially (that is, soon after the accident) tried to play a couple of games of indoor hockey. The plaintiff said that she was uncertain as to whether the indoor hockey was before or after the accident, and that she had corrected herself in that regard in her evidence-in-chief, when she said: “I don’t even recall when I did it exactly.”
In relation to snow skiing, Dr Eaton had recorded that the plaintiff had only skied once with her children since the accident. The plaintiff told Mr Pappas that in approximate terms she would have gone skiing with her family between one and three times a year since the accident. Upon further questioning, the plaintiff said that she had not gone skiing every year since the accident.
Mr Pappas referred the plaintiff to her history of jogging (as given to Dr Eaton) and gym attendance and contrasted that with her evidence that she would be too fatigued to do the cooking in the evening. Mr Pappas suggested to her that she was deliberately exaggerating her condition to further her claim for damages. The plaintiff rejected that proposition.
The plaintiff was then taken to a comment recorded by Dr Eaton that “[h]er sleeping has improved and is okay now, however she can wake up with shortness of breath possibly related to anxiety”. Mr Pappas asked the plaintiff whether she had told Dr Eaton about her sleep apnoea and sinusitis. The plaintiff contested the proposition that she suffered from sinusitis. She was then taken to the record of a CT scan dated 30 October 2012, which was reported as showing changes of sinusitis in the right splenoid air cells and at the base of the right maxillary antrum posteriorly. The plaintiff was also taken to referrals to specialists dated 6 November 2012 in relation to what was described by her GP as “Sinusitis – Chronic”. The plaintiff said that, notwithstanding these records, she recalled an Ear Nose and Throat doctor telling her she did not have evidence of sinusitis.
The plaintiff was taken to the report of Dr Higgs, who she had seen in September 2015 for a medico-legal assessment at the request of her solicitors. Dr Higgs had recorded a history that the plaintiff was participating in five sessions of exercise per week. The plaintiff believed that that may have been a reference to the program she was attending at the Canberra Injury Management Centre. Dr Higgs had suggested that the plaintiff should avoid lifting objects weighing more than 12 to 14 kilograms or pushing or pulling wheeled objects weighing 20 to 25 kilograms. The plaintiff agreed that she was lifting weights well in excess of 12 to14 kilograms in her work as a deckhand with Keppel Konnections at Yeppoon and that she was pushing and pulling trollies carrying well over the weights recommended by Dr Higgs. She also agreed that she was able to do that work regularly and without difficulty.
In relation to her work at RSM in 2015, Mr Pappas put to the plaintiff that although she had taken considerable time off (see Exhibit D8), she had only provided a medical certificate on one occasion. The plaintiff was unable to recall this. The plaintiff was then asked about a conversation with Mr Williamson about the termination of her employment with RSM. Mr Williamson, in an internal RSM email (see Exhibit D9) had recorded the plaintiff as telling him on or about 2 October 2015 that she was not able to come back to work at RSM due to her injury, her husband’s illness and her daughter’s health. The plaintiff did not recall the conversation. She thought that Mr Williamson may have got the context wrong insofar as he recorded the references to Bryan’s illness and her daughter’s health.
In the years leading up to 2018, the plaintiff and Bryan had discussed a plan of leaving Canberra and travelling within Australia as a family. Bryan reached the age of 60 in 2017 and could then retire from full-time teaching and access his superannuation. The plaintiff told Mr Pappas that when they received advice that it was a good time for their daughter to undergo heart surgery in early 2018, they decided that once she had recovered, they would travel for the rest of that year and thereafter keep their options open. The plaintiff knew that any work which she might obtain in regional Australia might not pay as well as similar work in the ACT.
Mr Pappas directed the plaintiff to a report dated 30 October 2015 from Dr Mullins (an allergy specialist) to Dr Tang (the plaintiff’s GP). That report recorded that the plaintiff had seen Dr Makeham (an ear, nose and throat surgeon), who had recommended sinus surgery. The plaintiff said that that information was incorrect. She had seen Dr Makeham, but he had not recommended sinus surgery.
The plaintiff was then asked to look at a report from Dr Makeham to Dr Tang dated 31 March 2015. Dr Makeham’s report noted that the CT scan of the sinuses was normal. However, he did recommend turbinate reduction and septoplasty. The plaintiff saw this as consistent with what she had been saying in her evidence all along.
Mr Pappas took the plaintiff to the records of her additional hours at UC during the period from when she commenced work there in September 2014 to the end of June 2015. The plaintiff’s evidence was that her base hours were 35 hours per fortnight. The records (Exhibit D10) demonstrated that the plaintiff worked an additional 323.5 hours during that period. Mr Pappas put to the plaintiff that she was able to work additional hours whenever required without difficulty. The plaintiff demurred. Although she could not remember specific weeks, she said that she would certainly have had difficulties at different times.
On 28 April 2016, Dr Tang referred the plaintiff to Dr Malhotra, a neurologist, for consideration of EEG testing. Mr Pappas took the plaintiff to the letter from Dr Malhotra to Dr Tang dated 11 May 2016. The letter recorded the plaintiff’s complaints of struggles with memory and speech since the accident. It stated that the plaintiff had had no symptoms before the accident. Mr Pappas raised with the plaintiff the incident with her memory and concentration in 2004. She said that she was unsure as to the context in which Dr Malhotra had asked about symptoms before the accident.
The plaintiff was directed to particulars provided by her solicitors on 26 May 2016. That included a reference to her inability to undertake pruning above waist height due to pain and discomfort. Mr Pappas then showed the plaintiff video footage of activities being carried out at her residence on 10 July 2016 (Exhibit D15). That video included approximately 10 minutes during which the plaintiff could be seen pruning a couple of small trees. On a number of occasions, she pruned above shoulder and even head height. She did not appear to be in discomfort.
Mr Pappas elicited from the plaintiff that, in July 2016, she had attended the Royal Prince Alfred Hospital, University of Sydney Campus for epilepsy testing. That testing found no indication of epilepsy as the cause of the plaintiff’s cognitive problems.
In December 2016, the plaintiff attended Dr Rebbeck, a specialist musculoskeletal physiotherapist. In her report to Mr Daniel, a physiotherapist, Dr Rebbeck recorded that the plaintiff had rated herself as “70 per cent recovered overall” from the injuries she had suffered in the accident. When asked by Mr Pappas whether that was correct, the plaintiff said that she did not know.
The plaintiff saw Dr Champion on referral from her solicitors in June 2017. In his report of 1 July 2017, Dr Champion suggested that consideration should be given to Botox injections of the upper cervical/occipital areas as a means of treating the plaintiff’s headaches. When asked about this, the plaintiff referred to having discussed injections with Dr Speldewinde, although she was not sure whether these were Botox injections.
By August 2017, the plaintiff had a period of four to six weeks when she was free of headaches. This followed treatment carried out by a dentist, Mr Stephenson. The plaintiff referred to this as “C1” treatment.
In December 2017, the plaintiff saw Dr Reiter, a rheumatologist qualified by the defendants. Mr Pappas put a number of matters to the plaintiff which he suggested she had not disclosed to Dr Reiter. The plaintiff said she did not recall what questions the doctor had asked, nor did she recall what she had said to the doctor.
At about the same time the plaintiff saw a sports medicine doctor, Dr Harris. Dr Harris recorded a complaint of constant pins and needles in both upper arms and lower legs in what she referred to as a “stocking like distribution”. The plaintiff agreed that she had reported such symptoms to Dr Harris, although she had no recall of using the words “stocking like”.
In February 2018, the plaintiff had obtained certification from Dr Tang for the purposes of engaging in foster care. The plaintiff agreed that she was feeling sufficiently well at that time to take on the task of foster care.
The plaintiff – re-examination
The plaintiff said that the medications listed in Exhibit P2 did not represent the totality of the medications she has taken for her accident-related injuries.
In relation to foster care, the plaintiff said that she and Bryan had originally taken on the care of three boys for two or three weeks. They had agreed to extend that time for a short term so that they would not be separated.
Mr Coughlan
Mr Coughlan confirmed that he and the plaintiff had been partners for 12 to 13 years. He said that he was a health/PE and maths teacher by profession. The plaintiff was driving his car at the time of the accident. Mr Coughlan said that he had visited the accident site on the night after it had occurred. He had inspected the first defendant’s blue Nissan vehicle, which had been left there after the accident. He thought that it could not be driven due to the damage to the front end.
Mr Coughlan described the plaintiff prior to the accident as a very active, sports-minded person. The family engaged in a lot of outdoor activities. The plaintiff was the driving force behind much of those activities.
In relation to domestic tasks, Mr Coughlan said that they were evenly divided between the two of them prior to the accident. He described them as a strong, loving couple who spent most of their time doing things together (except for his passion for playing cricket). To his observation, the plaintiff suffered from no physical restrictions in any of the activities in which they engaged before the accident.
Mr Coughlan was 62 years of age when he gave evidence. He had planned, before the accident, that he would retire from teaching before age 60. He was hoping that they would then be able to support the family on his superannuation and on the plaintiff’s earnings, given her professional status.
In the weeks and months after the accident, he observed the plaintiff trying to mobilise her neck and rubbing the base of her skull. Mr Coughlan said that the plaintiff was complaining of stiffness in the neck and shoulders. She was also becoming more and more tired such that she would end up on the couch very early in the evenings.
As a consequence, Mr Coughlan said that he found himself having to take on more of the evening meal preparation and also cleaning up after that meal. He was also doing the vacuuming and laundry, and a great deal more of the gardening work which she had previously done.
Mr Coughlan said that their physical relationship suffered, and indeed, to his observation, the plaintiff was not able to lift and cuddle their children after the accident.
Those changes, including in the relative level of domestic work each of them was performing, did not alter as time progressed until the plaintiff was able to drop her hours at UC to something like 25 hours per week. Once that happened, the plaintiff was able to be more involved with meal preparation and tasks such as lawn mowing.
When they were travelling in 2018, Mr Coughlan described breaking journeys up. They would travel for a maximum of four hours per day with significant breaks. This was partly for the plaintiff’s benefit, and also for the benefit of the children.
Since moving to Yeppoon in 2019, after an initial contract period teaching four days per week, Mr Coughlan has been doing relief work on average two to three days per week.
Mr Coughlan described the plaintiff’s work as a deckhand as very active. However, Mr Coughlan said that the plaintiff still has difficulties if she has to sit for more than an hour. She enjoys the physical work on the boat, although she complains to him that the jolting in rougher conditions tends to aggravate her neck and lead to headaches. He considers that they are back to an equal sharing of domestic tasks.
Mr Coughlan recalled going with the plaintiff to her GP towards the end of her work with AMSA. She asked him to explain to the doctor that she was in a lot of pain and was having difficulty fulfilling her work commitments.
In relation to the journey from Winton to Sydney in late 2018, Mr Coughlan said that it took the family three days. They travelled about 800 km on the first day and 600 km for the next two days. The plaintiff did 15 to 20 per cent of the driving. They stayed in Sydney two nights, then drove to Nhill over two days, with an overnight stop at Bendigo or Nathalia. Again, the plaintiff would not have driven any more than 20 per cent of the time.
Mr Coughlan said that he had not noticed that the plaintiff had any problem with her memory before the accident. However, afterwards he observed that she did not seem to recall things which he expected her to. In the period of 12 months after the accident, he found her inability to articulate even more notable. She would lose words and be unable to complete sentences. He considers that this has improved over time, but that she has not returned to how she was before the accident.
As to the need for him to undertake extra domestic tasks, Mr Coughlan’s best estimation was that he would have spent an additional 12 hours per week during the period while the plaintiff was at AMSA, then eight hours per week while she was at RSM, and then five to six hours per week when she was working at UC. The burden had eased further once they started travelling so that they were probably back to equal sharing again.
Mr Coughlan was asked under cross-examination about the foster caring which he and the plaintiff had undertaken. He confirmed that they had looked after three teenage boys for a period of three weeks in April 2018.
Mr Coughlan said that his take home pay was around $400 per day, so he would earn approximately $1,200 for three days’ work in a week. However, he preferred not to work more than two days per week on average, meaning that his average income was around $800 per week. He was not aware of the plaintiff’s earnings, and he did not know how much she received from the disability insurance. He and the plaintiff have not had a specific conversation about their financial position in Yeppoon.
Mr Pappas confirmed with Mr Coughlan that he had suffered a heart attack on 11 July 2015. He said that he had not been “laid low” in the sense of requiring care from the plaintiff after the heart attack. The division of labour in relation to domestic tasks had remained more or less the same as it had been before the heart attack.
In relation to the driving duties while the family was travelling, Mr Coughlan said that apart from perhaps one occasion when she might have been driving for three hours, the maximum the plaintiff would have driven was two hours. He was confident about that because he had spoken to the plaintiff’s father about the subject (who was also travelling with a caravan at about the same time).
In response to questions about whether he had discussed with the plaintiff taking medication for headaches, Mr Coughlan said that they had had such conversations. The plaintiff had told him that she was not going to take drugs.
Mr Pappas also asked some questions about what the plaintiff had said about the accident. She had told Mr Coughlan that she was waiting to turn right into Lance Hill Avenue, and that she had some forewarning of the collision. She told him that she had taken her foot off the brake, although she did not explain why. She also told him that she had spoken to a passenger from the car which had hit her car. She told him that the passenger had told her than the occupants of the first defendant’s car had not been injured.
Mr Coughlan recalled that the plaintiff had played one game of indoor hockey when asked by a colleague of his. She had found it very difficult because she could not play at the level which she knew she was capable of. She also did not like what she described as the “white line fever”. She refused to play again.
In relation to snow skiing, Mr Coughlan said that in the 2014 season (the year after the accident) the family had gone skiing. He was not sure but thought they might possibly have gone twice. He and the plaintiff would ski together; he considered himself a better skier than her.
Mr Coughlan remembered the plaintiff playing the piano only once or twice after the accident. They had bought the piano from a neighbour for $200 for the children.
As to the evidence of the plaintiff that she would arrive home from work extremely fatigued and would then lie on the couch or go to bed, Mr Coughlan confirmed that that did occur, probably for about two years after the accident.
Mr Pappas asked Mr Coughlan about the plaintiff’s gardening activities. He said that the plaintiff had returned to weeding and mowing, but that she steered clear of pruning, even up to the current time. Mr Coughlan agreed that he would not stand by and watch her prune, particularly if she was in pain and struggling. Mr Pappas had the video surveillance of the plaintiff on 10 July 2016 played. Mr Coughlan agreed that the video demonstrated the plaintiff pruning, on occasions above head height, and, that although he was present, he did not take over the pruning task. He agreed that the plaintiff appeared to be perfectly capable of performing the task at that time.
Mr Coughlan was asked about the plaintiff’s migraine headaches. To his observation, those headaches could be associated with vomiting. The plaintiff would also complain, on occasion, of noise and light as aggravating factors. He was unable to say whether her memory problems have gotten better or worse over time. He said that they were still evident.
In relation to the plaintiff’s physical activities, Mr Coughlan could not remember whether the plaintiff had played any tennis before 2017, however during that year and the following years he was definite that she had played. He thought a total of about 15 occasions. He said that the plaintiff had returned to riding her pushbike after the accident in 2016 or 2017. He knew that the plaintiff had returned to jogging. He said that she had not returned to running.
Mr Coughlan had helped the plaintiff with her deckhand work on one occasion. He described lifting boxes of meat and beer weighing 15 to 18 kilograms. The plaintiff had told him that she avoided lifting above her head, so he was handing the boxes up to her while she was on the boat.
Mr Pappas asked about the plaintiff’s duties with AMSA before the accident. Mr Coughlan said that the plaintiff would often not get home until 7:00 pm, while he would usually be home by 4:30 pm. This meant that probably four evenings a week he would prepare the family dinner.
Mr Coughlan did not recall the detail of the occasion on which he attended the plaintiff’s GP, Dr Tang, with her on 11 December 2013. His impression was that the plaintiff was not well. She was suffering from neck pain and stiffness, and headaches from the accident, but also emotional turmoil from stresses at work. He was not able to isolate one or other of these issues as the cause of her inability to continue at work at that time.
As to the plaintiff’s complaints in the weeks and months after the accident, Mr Coughlan noticed her placing her fingers at the base of her skull, as if to get some relief. He started massaging her in the same area within a month of the accident.
The plaintiff and Mr Coughlan had seriously discussed the possibility of leaving Canberra and providing home schooling for their children as they travelled by about mid-2017. This was in the context of Mr Coughlan’s retirement and in consideration of an improvement in lifestyle. The plan was open-ended, although it did comprehend the possibility of settling in a larger regional centre such as Ballarat or Bendigo where the employment possibilities would be better than in small country towns.
Mr Pappas put to Mr Coughlan that his estimation that his contribution to the domestic tasks could only have doubled if the plaintiff’s had reduced to zero during the period between the accident and her departure from AMSA. Mr Coughlan conceded that on that basis, his estimate was probably incorrect.
Mr Williamson
Mr Williamson was, at the time of giving his evidence, the CEO of the Australian College of Midwives. Mr Williamson had met the plaintiff at a time when both of them were employed by EY. He was a senior manager, a level above the plaintiff. The plaintiff reported to him in relation to some of the projects she worked on. Subsequently, Mr Williamson and Mr Pucci established the consulting division of RSM in Canberra. Through contact with the plaintiff, RSM at one stage contracted with AMSA to provide consulting services. Mr Williamson worked with the plaintiff, who by that time was working for AMSA, in that context. Finally, he was involved in offering the plaintiff a consulting role at RSM and worked very closely with her while she was performing those duties.
Mr Williamson spoke very highly of the plaintiff. He said that during their EY years, he found her to have a “strong set of skills”. In particular, Mr Williamson said that the plaintiff was very good at managing relationships with clients and that she also had a very sound analytical mind. To his observation, the plaintiff had no physical limitations and no cognitive or memory issues. Mr Williamson saw her as toward the top of the group of her peers in the consulting area of EY Canberra. He thought that she had all the necessary attributes for orderly career advancement.
In relation to her work at AMSA, Mr Williamson formed the view that she was very effective in the project management role she was fulfilling there. He saw her experience working for AMSA as a very useful addition to her skillset.
When the plaintiff first started with RSM, Mr Williamson thought that she performed very well. However, as time went on, he became aware that she had been in an accident which was affecting her ability to perform her duties. Indeed, that progressed to the point that, as her supervisor, he had to take over and complete the work she had been doing with a particular Commonwealth Department. While RSM tried to accommodate the plaintiff’s needs, the plaintiff eventually came to Mr Williamson and told him that she was not coping because of the physical issues she was experiencing after the accident. The work required lengthy periods of sedentary work and she was unable to cope with it.
Mr Muller asked Mr Williamson as to his view of the plaintiff’s career prospects if she was fit and well. Mr Williamson described her as being in the “high-flyer category”. He saw her as having the rare capacity to be both analytic and creative in the way in which she worked.
Mr Pappas asked Mr Williamson about the way in which EY employees gained promotion. Mr Williamson explained that offices such as the Canberra office operated with a degree of independence. While the number of promotional opportunities at each level below the “partner” stream might be set by the central office, the decisions as to who might be appointed in each round would be made within the local office in relation to the employees working in that office. Mr Williamson was not able to describe the process of appointments at the partner level because he had no experience in that area.
In relation to the plaintiff’s work at RSM, Mr Williamson recalled that she was taking days off work from time to time. Initially, the plaintiff told him that she was unwell, however later she told him about the accident and being physically challenged. It was not his practice to require medical certificates. Mr Williamson said that he operated on a trust system with those he was supervising.
In relation to the circumstances under which the plaintiff ceased attending work with RSM, Mr Williamson was left with the impression that she did not find the provision of a sit-stand workstation effective. He also considered that such workstations would not be available when the plaintiff was required to work in places other than the RSM office.
Mr Pappas took Mr Williamson to the email which he wrote on 25 November 2015 (see Exhibit D9). Mr Williamson did not remember the conversation to which it referred. He agreed with Mr Pappas that he had no reason to believe that the email was not accurate.
Professor Gibson
Professor Gibson held the position of Professor of Health and Aging at UC. She had held that position since January 2018. Prior to that, she had been Dean of the Faculty of Health for 10 years.
Professor Gibson had some interrelationship with the plaintiff as an employee of UC for most of the period of her employment. From February 2016 until she ceased work in March 2018, the plaintiff reported directly to Professor Gibson.
Before February 2016, the plaintiff worked on a number of projects which were relevant to the development of a Health Precinct at UC, and Professor Gibson worked closely with the plaintiff in that context. Professor Gibson said that she would interact with the plaintiff informally most days and see her in formal meetings most weeks. She noticed that the plaintiff used a stand-up desk and said that she never saw the plaintiff sitting at the desk. Professor Gibson said that it was most unusual for someone at UC to have a stand-up desk in those days.
Professor Gibson saw the plaintiff as having excellent knowledge in relation to financial matters and having unusually creative skills for someone with an accounting background. Professor Gibson said that she thought that the plaintiff was a very good project manager.
After February 2016, Professor Gibson became the plaintiff’s direct supervisor. In that capacity she worked more closely with the plaintiff. To her observation, the plaintiff’s ability to do the work and her general well-being deteriorated as time went on. Professor Gibson became aware of the plaintiff’s migraines, and indeed she asked the plaintiff to go home on several occasions. Professor Gibson also became aware of the plaintiff’s neck and upper back complaints, although she regarded these as chronic as opposed to the more acute headache episodes.
As a consequence of the deterioration in the plaintiff’s condition, Professor Gibson removed one of the projects she had been working on from the plaintiff’s duties. Professor Gibson felt that the plaintiff would not be able to undertake that project, in addition to the two other projects that she was working on.
In the later part of the plaintiff’s employment at UC, Professor Gibson recalled a period when the plaintiff was placed on a graduated return to work program after having been off work for a period. Professor Gibson herself took action to slow down the increase in hours in that program out of concern that the plaintiff would overreach in trying to get back to work. That action was recorded on the copy document which became Exhibit P3.
Professor Gibson saw the plaintiff as a valuable employee. If she was fit and well, having regard to her qualities, Professor Gibson said that the plaintiff would be highly valued by UC.
Mr Pappas, in cross-examination, took Professor Gibson to Exhibits D10 to D13. She confirmed that the plaintiff had commenced at the level of a UC10 in the Vice President Governance and Development portfolio. The plaintiff was required to work an average of 17.5 hours per week on the projects allocated to her. Professor Gibson was unable to say precisely how it came to be that the plaintiff worked significant additional hours to her base hours. She was not personally involved in that process. She did offer, however, that the area in which the plaintiff was working was very busy and there was always a degree of urgency and pressure. She thought it likely that the plaintiff was being asked to do the additional hours in order to get the work done.
In relation to the period after February 2016, the plaintiff was required to work 28 hours per week in the UC12 role. Professor Gibson particularly noticed a reduction in the plaintiff’s capacity after the illness which led to the graduated return to work program. Mr Pappas put to Professor Gibson that that illness was probably the migraine episode which occurred in April 2017. Professor Gibson agreed with that proposition, although she did not believe that the migraine itself continued to incapacitate the plaintiff into June 2017.
Professor Gibson confirmed that by early 2018, UC was facing budgetary pressures which in turn led to it offering voluntary redundancies to a wide range of its staff.
Professor Gibson did not think that the plaintiff, as at October 2017 when she last worked with her, did not have the mental acuity to continue with the job she had been employed to do. Having said this, Professor Gibson expressed awareness of the situation of people in severe pain or suffering migraine headaches lacking the acuity to function to their normal standards.
Mr Pucci
Mr Pucci first met the plaintiff when they both worked at EY. Mr Pucci rose to the position of Executive Director at EY, however at the time he met the plaintiff he was a Senior Manager. In that capacity, Mr Pucci directly supervised the plaintiff at a time when she was a Manager. He saw her performance as exceptional and above her peer level. He did not observe her to suffer any physical restrictions.
The promotion process at EY was rigorous, involving assessment of the project work of each employee and a comprehensive peer review. Mr Pucci was involved in that process. In relation to the plaintiff’s promotion to Senior Manager, he said that she was in the top 20 per cent of her peers and that the promotion indicated that she had prospects of further advancement. He considered that she would, had she kept working at the same level of performance, have been ready for further promotion in “one to two years”. I understood this to be a reference to one to two years after he last worked with her in 2015.
Mr Pucci recalled that the plaintiff approached him (and possibly Mr Williamson) in early 2015 after she had finished with AMSA. Mr Pucci said that the plaintiff had asked about work and he was able to offer her a position with RSM. At that time, he and Mr Williamson were running the consulting division of that firm. The plaintiff was employed as a Senior Manager. Initially, Mr Pucci was happy with the plaintiff’s performance, however over time he noticed that she was not performing up to his expectations, having regard to his prior observation of her abilities. Eventually the plaintiff approached him to ask for a reduction in her workload. She told him that she had been in a motor vehicle accident. Mr Pucci concluded that her lack of capacity was due to fatigue and an inability to concentrate. Some time later in 2015, the plaintiff resigned from RSM because she was unable to do the work.
Under cross-examination, Mr Pucci conceded that it was not possible to predict the future career path of an individual with any real degree of certainty. In relation to the period in 2014 when he was working with the plaintiff (at that stage RSM was providing consulting services to the AMSA project on which the plaintiff was engaged), he did not become aware of the plaintiff’s accident. He did not recall her complaining of injury or seeing any signs that she was injured during that time.
Mr Pucci was not aware of the circumstances of the plaintiff’s departure from the AMSA job. He assumed that the project had come to an end. In relation to her resignation from RSM, he did not recall the email from Mr Williamson on 25 November 2015 (see Exhibit D9), although it was copied to him. Mr Pucci saw no reason why Mr Williamson’s report of his conversation with the plaintiff as recorded in that email would have been inaccurate.
First defendant
The first defendant (Ms Dermeijan) recounted that just before the accident, she was driving her car towards Dunlop on Ginninderra Drive. It was evening. She was familiar with the area. The speed limit had been 80 km/h. She remembered that it reduced to 60 km/h just before the intersection where the accident occurred. The first defendant said that she was travelling at the speed limit. The first defendant said that she could not remember how far away she was when she first saw the plaintiff’s vehicle, although she said it was “close”. She said there were no parking lights and no indication of turning on the plaintiff’s car. When she saw the plaintiff’s car, the first defendant said that she immediately applied the brakes, however that was insufficient to prevent a collision. She heard what she thought was a moderate bang when the vehicles collided.
The first defendant said that she was thrown forward a little bit, but that she did not suffer any injury. The first defendant said that the plaintiff’s car moved forward a little bit, but not into the path of a car coming the other way. The plaintiff’s car then moved into Lance Hill Avenue and parked near the kerb. The first defendant parked her car off to the side of Ginninderra Drive. She called her son George who was close by. George and some others came to the accident scene. There were a couple of other people who were passengers in the first defendant’s car also at the accident scene.
The first defendant said that she also called the police and that they told her to make an online report. She then walked over to the plaintiff’s car. She saw the plaintiff sitting in the driver’s seat with the door open and her legs out of the car. The first defendant said that she had asked the plaintiff how she was. The first defendant said that the plaintiff was shaking, and that she had said she was okay. The first defendant said she herself was also shaking. They exchanged details. The first defendant said that she could not remember whether George came over to the plaintiff’s car and that there were a lot of people around. The first defendant said that she observed a “scar” on the rear bumper bar of the plaintiff’s vehicle. However, more damage was done to her car because the tow bar had gone right into the radiator. Her comprehensive insurer wrote her vehicle off. She remained at the accident scene for perhaps half an hour.
The first defendant said that the plaintiff did not say or do anything to indicate that she had been injured.
Mr Muller suggested to the first defendant that the tail-lights of the plaintiff’s car were on before the accident. However, that did not accord with the first defendant’s recollection. She accepted that other people might also have spoken with the plaintiff immediately after the accident, although the first defendant could not recall one way or the other. She was definite however in her recollection that she herself spoke to the plaintiff.
In re-examination, Mr Pappas showed the first defendant the photographs comprising Exhibit D6. She identified her vehicle. She said that it had no damage before the accident.
Mr Evans
Mr Evans is an employee of AMSA. He was working for that organisation in 2013 when he was instrumental in the plaintiff obtaining direct employment with AMSA. The plaintiff reported to him and they worked in close proximity. Mr Evans said that their paths would usually cross each day. He thought that she was very capable and skilled. He saw her as a talented employee.
Mr Evans did learn that the plaintiff had been in a motor vehicle accident, however he was not able to recall how he obtained that information. Mr Evans did not recall any change in the plaintiff’s work performance after he became aware of the motor vehicle accident.
Mr Evans was present at a meeting where the General Manager of AMSA arbitrated on a disagreement between the plaintiff and another employee. The General Manager decided in favour of the other employee. Mr Evans recalled that the plaintiff got up and left the room and did not return to work after that time. The HR Manager, Cherie Enders, then negotiated a separation agreement with the plaintiff.
In cross-examination, Mr Muller put to Mr Evans that his relationship with the plaintiff was a business relationship. It was not one of a personal nature. Mr Evans agreed. He also agreed with the proposition that, in addition to the qualities of the plaintiff he had referred to in his evidence-in-chief, he saw her as an ambitious person. He did not recall any occasions on which the plaintiff confided matters of a personal nature to him. Mr Evans said that the working environment at AMSA was highly pressurised. It would have been important for the plaintiff to have been seen as performing well in her role.
Ms Enders
As noted above, Ms Enders was the HR Manager of AMSA in 2013. At the time of giving her evidence, she was the Chief Operating Officer of that organisation. Ms Enders confirmed that she had negotiated a separation agreement with the plaintiff. She identified Exhibit D2 as a copy of that agreement. She said (referring to Exhibit D1) that the plaintiff had tried to revisit the nature of the separation. However, that attempt was unsuccessful. The plaintiff’s employment came to an end by mutual agreement; it was not a redundancy.
Ms Enders said that she was not made aware that the plaintiff had been involved in a motor vehicle accident.
Mr Muller asked Ms Enders as to how many employees there were at AMSA at that time. She said that there were just under 400.
Expert evidence
The defendants took objection to selected parts of the histories and complaints recorded in reports from Ms Coghlan, Dr Eaton, Dr Champion, Dr Higgs and Dr Brooder. The objections were based on the hearsay nature of the evidence. The defendant sought rulings under s 136 of the Evidence Act 2011 (ACT) (Evidence Act) limiting the use of the identified parts of the reports. I have addressed those objections and the application for s 136 rulings at [337] to [352] below.
Expert evidence relied on by the plaintiff
All of the written reports tendered by the plaintiff were contained in the folders which became Exhibit P1.
Ms Missen
The plaintiff relied upon a number of reports of largely historic interest. The earliest in time was from the plaintiff’s treating physiotherapist, Ms Missen. It was dated 4 August 2015. It recorded a course of treatment consisting of 10 treatments between 20 December 2013 and 13 May 2014. In relation to any previous history of neck issues, the report referred to the plaintiff having suffered a knock to the head by a knee in 2005. The resulting problem was said to have settled quite quickly with chiropractic treatment. Ms Missen saw the plaintiff’s neck injury as being consistent with a “whiplash mechanism” from a rear-end motor vehicle accident. Her diagnosis was “chronic whiplash injury”.
Dr Howse
The next report chronologically is that from Dr Howse, sports physician, dated 26 August 2015. Dr Howse reported that the plaintiff had initially consulted him on 20 June 2014. She gave a history of having been in a motor vehicle accident in September 2013 and striking the posterior part of her head on the headrest. She had been experiencing discomfort in the lower neck region and shoulders, with intermittent tightness around the posterior head region. This was associated with intermittent headaches with some radiation of pain to the left shoulder region. She had had physiotherapy and chiropractic treatment which had produced some improvement. She was working full-time and not experiencing any obvious subjective concentration difficulties.
Dr Howse concluded that the plaintiff had probably suffered a facet joint sprain of the cervical spine which had become chronic. He was not sure whether the headache was related to the neck injury or to a post-concussion syndrome. Dr Howse had referred the plaintiff to Mr Sutton for assessment. Dr Howse provided treatment consisting of injections of local anaesthetic into the trigger points of the plaintiff’s trapezius muscle. He last saw the plaintiff on 9 October 2014.
Mr Sutton
Mr Sutton, psychologist, first saw the plaintiff on referral from Dr Howse on 7 August and 18 September 2014. Mr Sutton carried out neuropsychological testing of the plaintiff. He reported that she had subjectively high levels of cognitive disruptions having regard to her age, gender and education. On objective testing, the data given by the plaintiff was found to be valid; there was no exaggeration or malingering of symptoms. In a report to the plaintiff’s solicitors dated 24 July 2015, Mr Sutton expressed the following views:
I thought the neuropsychological test results showed a pre-existing or pre-accident issue with very strong non-verbal or perceptual reasoning abilities (99th percentile) and relatively weaker verbal processes (low average to average). This size difference between her verbal and perceptual abilities is highly statistically significant, and occurs only in 0.2% of the norm group. It is developmental and not due to any acquired injury.
There were some unusually lowered immediate and delayed verbal rote memory functions. As there was no obvious evidence for an acquired brain injury from her accident, nor emotional reasons for the disruption (she had no elevated anxiety or other disorders), then my pain [sic] best guess was that verbal memory, especially rote, was always relatively lowered, and with this low threshold it would not take much for it to be sensitive to disruption by extra pressures (e.g. pain, which creates a dual attentional task).
“…it is not … possible to enunciate an exhaustive rule for all parts of this vexed topic. And the questions that arise can never be determined in the abstract. Each must depend on the terms of the particular contract, pension scheme, charitable benefaction or statute governing the benefit conferred.”
Broadly speaking it may be accepted that benefits like insurance which are paid pursuant to contract are not deductible from the amount of damages recoverable where the intention of the contract is that the beneficiary should have the benefits notwithstanding rights of action which he or she may have against the wrongdoer. It makes no difference that the insurer is entitled to be subrogated to the insured’s rights of action against the wrongdoer because, as Windeyer, J. explained, if the wrongdoer were entitled to set off what the plaintiff was entitled to recoup or had recouped under his policy the wrongdoer would in effect be depriving the plaintiff of all benefit to himself. In other words it is regarded as unjust that money spent by an injured man on premiums should inure to the benefit of the tortfeasor. Equally it may be accepted as a general proposition that benefits given by way of bounty are not to be deducted if given on the basis that the beneficiary should enjoy them in addition to and not in diminution of any claim for damages. That is so because gifts of that kind are given for the benefit of the sufferer and not of the wrongdoer. But contrastingly if a donor makes a gift to the victim of an accident out of sympathy for the man unfortunately responsible for the accident, making it plain that the gift is made in the interests of the tortfeasor so as to diminish the damages that the tortfeasor has to pay, effect will be given to the donor’s intention and the damages recoverable will be reduced accordingly.
The cases dealing with the deductibility of social service benefits and pensions largely accord with those general principles. So, in Espagne an invalid pension conferred under Pt III of the Social Services Act 1947 (Com) was held not to be deductible because it was granted in exercise of an administrative discretion as a benefit to the victim after consideration of his situation, entirely for his use and benefit and not in relief of any person antecedently liable to him to compensate him in any way for his disability. But in Graham v. Barker, where for similar reasons a pension which accrued to the appellant as a result of his participation in a contributing superannuation scheme was held not to be deductible, “sick pay” was held deductible on the basis that it was the measure, no more and no less, of the employee’s right to receive ordinary pay notwithstanding his absence on sick leave, and thus because it was impossible to say that pro tanto there had been any loss of wages. In Parry v. Cleaver it was held that a police pension was not deductible because it was payable in any event, not dependent on loss of earning capacity, and because it was the reward of pre-injury service and therefore not relevant to the loss of post injury wages. Contrastingly, in Batchelor v. Burke and Haines v. Bendall it was held that workers’ compensation was to be taken into account in calculating the interest payable on common law damages for loss of earnings. Most importantly, in Fox v. Wood it was said that workers’ compensation should be deducted from the damages recoverable for loss of earnings unless the legislation required the worker to repay the compensation out of the damages recovered. As Gibbs, CJ. explained, it was only where the worker was obligated to pay the net amount of compensation which he had received, so that he neither gained nor lost anything by the receipt and repayment, that the question of workers’ compensation could be ignored in the assessment of damages.
It was submitted for the defendant that, because s. 42 of the Act requires repayment of an amount up to any compensation paid, the observations in Fox v. Wood foreclose the deductibility of compensation and thus of s. 104 indemnity. But in my view that represents a misconception of what was decided. The conclusions expressed about the significance of an obligation to repay the net amount of compensation built upon a proposition earlier expressed by Gibbs, CJ. in Batchelor v. Burke, as follows:
“… Clearly the advantage given to a workman by this legislation is not conferred upon him with the intention that he may retain the compensation even if he enforces his right to damages, and since the amount received as compensation is repayable to the extent to which damages are recovered the fact that the injured worker has received compensation will not relieve the tortfeasor who cause the injury of liability. That however does not mean that any advantage or disadvantage which results to the injured worker, and which is relevant in some other way to the assessment of damages, should be disregarded as collateral or remote.”
The logic of the proposition was that an amount of compensation cannot be deducted if the effect would be to leave the plaintiff with a net recovery less in amount than the damage he had suffered. It was not that compensation can never be deductible where compensation is repayable.
As it appears to me the real point of principle which emerges from Fox v. Wood and the cases earlier described is that the deductibility of the proceeds of insurance policies, other contracts of indemnity, social service benefits and gifts may be denied where the circumstances of the case make deduction unjust, and equally that deductability will be allowed where it is just to allow it. Deduction will most probably be seen as unjust if the effect would be to leave the victim less than fully compensated. It would also be regarded as unjust if the effect would be to relieve or lessen the responsibility of the wrongdoer for the consequences of his wrong; and in making that assessment, it would ordinarily make no difference whether the relief or lessening of responsibility would come at the expense of the victim or of a third party volunteer such as an insurer or government that had engaged for consideration or upon some other basis to pay the victim the amount in question. It would be supposed that the arrangements which resulted in the payment in question were made for the benefit of the victim. But where the deduction would leave the victim fully compensated and the third party fully recouped, the deduction should be allowed. It would be contrary to the principles of compensatory damages and therefore unjust to do otherwise.
Accordingly, where as here the position is not only that the allowance of the deduction would leave the victim fully compensated and the wrongdoer fully responsible for her wrong, but also that refusal to allow the deduction would result in the victim or the third party profiting at the expense of the wrongdoer, and imposing upon the wrongdoer a commensurately more onerous burden than she should properly have to bear, I consider that there is every reason consistent with principle and the authorities that have been discussed for allowing a deduction of the compensation paid.
(emphasis added) (footnotes omitted)
The decision in Sweedman was appealed to the High Court of Australia: see Sweedman v Transport Accident Commission [2006] HCA 8; 226 CLR 362. The precise issue discussed by Nettle JA was not raised in the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ. However, Heydon J, who delivered a separate judgment as part of the majority, referred to the reasons of Nettle JA on this point as “compelling”: see [152].
As was demonstrated in Richards, it is essential to analyse the nature or character of the payment in question. Here, it seems to me, the payments fall clearly within the character of a contractual insurance payment which is independent of the obligations of the tortfeasor. They were not referable to the capital loss suffered by the plaintiff as a consequence of her impaired earning capacity. Nor were they intended as a “subvention” to reduce the liability of the tortfeasor. Indeed, the policy itself states that it is not an indemnity policy.
In the language of Nettle JA in Sweedman, it would be unjust for the product of the plaintiff’s providence in obtaining income protection insurance to be deducted from the damages payable by the tortfeasor responsible for her injury. Consistent with the statement of Windeyer J in Espagne, it should not matter whether the disability/income protection insurer has a right to “claw back” payments or to set off its liability by reference to the damages recovered by the injured person.
However, it does seem to me that the injustice discussed by Nettle JA would be all the greater if there was a risk of “claw back” or offset. In that situation, the plaintiff could suffer a deduction from the damages otherwise recoverable and then suffer a further loss by either having to repay his/her disability insurer, or suffering a reduction in the benefit contracted for.
Mr Pappas submitted that the policy did allow for an offset against future damages. There is some force in that submission. However, it is not appropriate that I make a firm finding one way or another in this litigation. Suffice to say that there is a real risk that the plaintiff will suffer a reduction in her disability payments, having regard to the damages awarded for loss of earning capacity.
Having regard to the above, it would, in my view, be unjust to make any deduction from the plaintiff’s loss of earning capacity damages in relation to the CommInsure payments received or receivable by the plaintiff.
Consistent with this ruling I also decline to take those payments into account in relation to the interest on past damages. In that regard, I adopt the comments of Harrison J in Collins v Sydney Ports Corporation [2012] NSWSC 115 at [173]. It seems to me that the character of the disability insurance payments is so different from workers compensation incapacity payments as to distinguish the authorities that require the latter to be taken into account in assessing interest.
Loss of earning capacity damages – past and future
The reasons why the plaintiff left her employment with AMSA are not clear. It seems to me that there is force in the defendants’ submission that it had more to do with a personality clash than with the injuries which the plaintiff suffered in the accident. On the other hand, it is apparent from the plaintiff’s evidence and that of Mr Coughlan that the plaintiff’s state of mind was fragile given that she was struggling to cope with pain, headaches and sleep disturbance at that time. It may be that the personality conflict and the plaintiff’s reaction to it might not have occurred but for the accident and associated injury. However, the evidence is insufficient in my view to permit me to make a finding on the balance of probabilities to that effect.
The situation with the plaintiff’s employment at RSM is also complicated. I accept that the plaintiff chose to commence work there on reduced hours because of her medical condition, particularly the difficulties she was having with static work, and also her cognitive problems at that time. I find, as submitted by Mr Muller, that it is reasonable to value her earning capacity at that time, had she not been injured, at $175,000 per annum or $109,542 per annum net of tax. So far as I can see by reference to the correspondence from RSM included in Exhibit P7, the figure of $175,000 was inclusive of superannuation. I have assumed that the net of tax figure was calculated accordingly.
The plaintiff continued working with RSM until early 2015, although her employment did not formally end until October of that year.
In the meantime, from September 2014, the plaintiff commenced part-time work with UC at the level of UC10, Executive Officer at 35 hours per fortnight. It is apparent that she soon started working additional hours (see Exhibit D10). I accept that the plaintiff did this in an attempt to comply with the requirements of the position. This also explains why the plaintiff effectively abandoned the RSM work from the beginning of 2015.
It is true that the plaintiff’s husband suffered a heart attack in mid-2015 and that Exhibit D9 establishes that the plaintiff told Mr Williamson on or about 2 October 2015 that she was resigning due to her injury, Mr Coughlan’s heart attack and her daughter’s health.
However, it is also apparent from the sequence of events that the plaintiff had already, from early 2015, decided to focus on the UC employment rather than that with RSM. I accept the plaintiff’s evidence that she found the job at UC more flexible and that she was better able to cope there than she had been at RSM. I also accept that the plaintiff worked to her capacity with UC until she accepted the redundancy in early 2018.
I do not accept that the plaintiff’s decision to take the redundancy, and then, after her daughter’s recuperation from surgical treatment, embark on a family tour of regional Australia, was caused by the injuries from which she still suffered at that time. Having regard to the long-term family plans and Mr Coughlan’s retirement, I am satisfied that the plaintiff and her family would have embarked on that tour, probably on an open ended basis, in any event.
On the other hand, I do not accept that the plaintiff gave up the high level consultancy work in which she was engaged before the accident in furtherance of her damages claim. Nor do accept that Mr Coughlan’s heart attack or her daughter’s illness caused her to give up that work.
It follows from the above findings that I accept that Mr Muller’s calculation of the plaintiff’s past loss up to the end of the 2017/2018 financial year provides reasonable guidance in the assessment of the value of the plaintiff’s loss during that period. Indeed, given that the plaintiff ceased work in March 2018, and that superannuation would have been contributed by UC in relation to the gross salary paid to the plaintiff during the period between September 2014 and March 2018, it appears likely that his calculation overstates the plaintiff’s loss. However, that is counterbalanced by the fact that his figures take no account of the real prospect that, uninjured, the plaintiff would have been earning more than the figure of $175,000 gross (including superannuation). The figure calculated by Mr Muller for the years from and including 2014/2015 to 2017/2018 amounts to just under $111,200. For the reasons outlined above, it is not possible to be mathematically precise here. I am satisfied that an award of $100,000 properly reflects the plaintiff’s loss of earnings (including superannuation) flowing from her impaired earning capacity during that period.
The assessment of the plaintiff’s loss since mid-2018 becomes more difficult again. The plaintiff was well aware that leaving Canberra for remote regional parts of the country would almost necessarily mean that she would not be able to access the reasonably high-level accounting or consultancy roles she had performed in the past. Indeed, it seems likely that part of the reason for the travel was for the plaintiff and Mr Coughlan to spend more time together and in close contact with their children.
The plaintiff’s net earnings during 2018/2019 and to March 2020 during the 2019/2020 financial year were $9,576 and $25,797 respectively. It is probable, in my view, that if the plaintiff was fully fit that she would have sought out work since the time the family settled at Yeppoon, probably in an accountancy role, at a higher level of remuneration than that which she has been performing. I make this assessment having regard to her impressive work history and determination to succeed demonstrated during the years before the accident. However, the evidence is insufficient to allow for a mathematical calculation of the actual financial loss suffered as a consequence of her partial loss of earning capacity. Doing the best I can, I award the amount of $30,000 by way of a buffer for this period including the time between March 2020 and the date of judgment. That amount does not include superannuation.
The total amount awarded for the past is thus $130,000. I award interest (at three per cent) on that figure on the basis claimed by Mr Muller, although for the period of six years having regard to the period covered by the calculations. The interest equates to $23,400.
The loss which will be suffered by the plaintiff in the future is simply impossible to calculate on an arithmetical basis. I find that the plaintiff will continue to suffer a partial loss of earning capacity consisting of a restriction in her ability to perform sedentary office type duties for long periods. Dr Eaton thought that it was possible that that restriction might continue indefinitely. Dr Eaton also referred to the loss of the plaintiff’s accountancy qualifications over the years as providing an impediment to her return to that profession. On the other hand, Dr Champion was, at the time of his assessment at the end of 2018, somewhat more optimistic about the plaintiff’s prospects of recovery. To some degree, Dr Champion’s optimism has been shown to be well-founded having regard to the plaintiff’s successful performance of the deck hand role. Nevertheless, I accept that she has at times struggled with the clerical type duties she has been performing at the Anglican Church in Yeppoon. I conclude that the plaintiff has a reasonable prospect of recovering sufficiently to be able to return to the accounting profession or equivalent. However, that may take some years.
Having regard to the plaintiff’s choice to pursue the family travels and to settle in regional Australia, I do not think that it is appropriate to award damages on the basis submitted by Mr Muller. Having regard to my findings above it seems to me that it is appropriate to award the plaintiff a buffer of $125,000 in respect of her future loss of earning capacity. Again, that amount does not take into account superannuation.
I have arrived at that figure on the basis that it will take the plaintiff at least five years to return to the point of being able to exercise her pre-accident earning capacity. In my assessment, it is unlikely that she and her family will return to one of Australia’s major cities during that time. Assessment of her actual loss of income must therefore take into account the probability of lower salary levels in regional Australia. Noting that the plaintiff was earning a gross annual salary of just over $80,000 ten years ago (2009/2010; see Exhibit P4 at 124), it is reasonable to conclude that she will suffer a loss of around $600 per week net of tax over the next five years. Using a discount rate of three per cent provides a present value of $145,800. I have reduced that figure to account for the chance that the plaintiff might be able to return to a higher level of work in accounting or management a little earlier than I have assumed.
Griffiths v Kerkemeyer – s 100 damages (past and future)
I have accepted the evidence of Mr Coughlan in relation to this issue, subject to one reservation. Mr Coughlan conceded that his estimation of his application to domestic tasks doubling in the first months after the accident was not correct. I take from his evidence that during the period while the plaintiff was working at AMSA (that is until December 2013), the domestic burden on Mr Coughlan was significantly increased. Thereafter, it gradually reduced to around five to six hours per week while the plaintiff was working at UC. The need for assistance effectively ceased once the family went travelling. Having regard to that evidence, and making due allowance for the difficulty in making retrospective estimations of the time spent doing domestic tasks, I award damages under this head at the agreed rate of $35 per hour as follows:
(1)September 2013–September 2014—an average of six hours per week for 52 weeks (a total of 312 hours);
(2)September 2014–March 2018—an average of four hours per week for 182 weeks (a total of 728 hours).
On the above basis, I award the plaintiff $36,400 for past damages under this head (1,040 hours x $35 per hour).
No claim is made in relation to future Griffiths v Kerkemeyer/s 100 damages.
Loss of superannuation
Mr Muller argues that the loss of superannuation associated with loss of earning capacity damages should be calculated at the rate of 11.5 per cent of the total awarded for past and future loss of earning capacity. However, as noted at [425] above, the figure allowed to 30 June 2018 includes the loss of superannuation figure up to that time. I therefore will apply the rate of 11.5 percent (to which no objection was taken by the defendants) to the aggregate of the amounts which I allowed exclusive of superannuation, that is $30,000 and $125,000. I award $17,825 ($155,000 x 0.115).
Summary of Damages Awarded
The damages recoverable by the plaintiff are summarised in the following table:
| Head of Damage | Amount |
| General damages | $110,000 |
| Interest | $9,450 |
| Out of pocket expenses | |
| Past | $33,901 |
| Interest | $2,192 |
| Future | $5,000 |
| Loss of earning capacity | |
| Past | $130,000 |
| Interest | $23,400 |
| Future | $125,000 |
| Griffiths v Kerkemeyer | |
| Past | $36,400 |
| Future | Nil |
| Loss of superannuation | $17,825 |
| Total | $493,168 |
There will be judgment for the plaintiff in the sum of $493,168. I will hear from the parties on the question of costs.
| I certify that the preceding four hundred and thirty-eight [438] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |
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