Stanka Kostic v Tony Gwynne (QBE) - [2024] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STANKA KOSTIC v TONY GWYNNE (QBE)
[2024] SADC 121
Judgment of his Honour Judge Barklay
30 September 2024
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - DAMAGES FOR NON-ECONOMIC LOSS - CIVIL LIABILITY LEGISLATION MODIFICATIONS
The applicant, Stanka Kostic, was injured during a motor vehicle accident, on 10 August 2017, whilst riding her bicycle. The applicant was 56 years old at the time. The applicant was in receipt of Centrelink payments at the time of the accident. The applicant had not worked in Australia since arriving here from Serbia in 2014. The applicant has not worked since the accident.
The applicant claims damages for injuries to her neck, back, shoulder and hip. In addition, she claims she had suffered a psychological injury as result of the accident.
At the time of the accident the applicant had ongoing pre-existing injuries to her neck, back, shoulder and hip. The applicant had also been suffering from anxiety and depression for which she was seeing a psychiatrist for years prior to the accident. Her mental health problems were sufficiently serious to warrant her making an application for a disability support pension months before the motor vehicle accident.
Held:
As a result of the accident the applicant suffered minor musculoligamentous strains to her neck and shoulder as a result of the accident and a contusion to her right hip. The applicant’s injuries, arising from the accident, would have resolved in no more than 12 weeks but more likely six weeks. Any ongoing injuries or pain the applicant experienced can be attributed to the applicant’s pre-existing injuries.
Damages for non-economic loss, future economic loss and past gratuitous services are to be assessed under the Civil Liability Act 1936 and the Civil Liability Regulations 2013. There is a requirement under the Civil Liability Act for the applicant to reach an injury scale value which exceeds 10 to qualify for an award of damages for non-economic loss, and past gratuitous services and a value that exceeds 7 to qualify for future economic loss.
The applicant’s injury scale value is 3. There is no basis to uplift the injury scale value so that it exceeds 7 or 10. In those circumstances, applying the Civil Liability Act, the applicant does not qualify for an award of damages for non-economic loss, future economic loss and past gratuitous services.
The applicant has not established that she suffered a psychological injury as a result of the accident or that her psychological symptoms increased after the accident. No damages will be awarded for mental harm.
There is no basis to award damages for past economic loss, past paid commercial care, future care or future medical expenses. Any entitlement to past medical expenses during the 12 week period, when the applicant was suffering from minor injuries connected to the accident, are off-set by, without prejudice, payments made after the 12 week period.
The applicant is not entitled to any damages. The applicant’s claim is dismissed.
Civil Liability Act 1936 (SA) ss 52, 52(4), 56(a)(2), 56A(2), 56A(3), 58(4), 76(4), 76(5), 77(5)(b); Civil Liability Regulations 2013 (SA) rr 6, 7, 8, 9, 11, 12, 15, 23, referred to.
Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Walker v Briddon (1986) SASCFC; Makita (Aus) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Reisner v Bratt & Anor [2004] NSWCA 22, considered.

STANKA KOSTIC v TONY GWYNNE (QBE)
[2024] SADC 121
PART A: INTRODUCTION

The proceedings relate to an assessment of damages under the Civil Liability Act 1936 (‘CLA’) and the Civil Liability Regulations 2013 (‘Regulations’) for what are said to be multiple injuries arising from an accident that occurred on 10 August 2017 when the applicant, Stanka Kostic, was riding her bicycle and veered to avoid a motor vehicle driven by the respondent which had entered her lane. The applicant fell from her bike either while trying to avoid being hit by the respondent’s motor vehicle, or because her bike was hit by the motor vehicle.
Briefly, the circumstances of the accident are that the applicant was riding in an easterly direction along Henley Beach Road in a bike lane when the respondent’s vehicle entered the bike lane from a side street heading north. The applicant took evasive action to avoid the vehicle. The applicant says the vehicle struck her bicycle, and she fell to the ground. The applicant was seen by ambulance members at the scene, but she was not taken to the hospital. She received no medical treatment from the ambulance officers for any injuries she may have suffered.
The respondent admits that the collision was caused by the negligence of the respondent. The respondent admits that he breached his duty of care to the applicant. The respondent admits he caused the applicant to fall from her bicycle but does not admit his vehicle collided with the applicant’s bicycle.
The applicant claims that as a result of the accident, she suffered multiple injuries, including pain, injury and restriction to her cervical spine/neck, right shoulder, thoracic spine/upper back, lumbar spine/lower back, right wrist and thumb, right hip, headaches, dizziness, muscle tenderness and spasms, sleep disturbance and psychological/psychiatric injury including major depressive disorder, somatic symptom disorder, anxiety, stress, frustration and mood swings.
The applicant submits that she has suffered from and will continue to suffer from her multiple injuries. As a result of the applicant’s multiple injuries and resultant disabilities, the applicant submits that she has suffered and will continue to suffer an impaired ability to be able to participate in employment, social, recreational, and domestic activities. She seeks damages for non-economic loss because her ability to live a normal life has been significantly impaired for a period in excess of seven days and ongoing. She said she has suffered and will continue to suffer loss of enjoyment of the amenities of life and pain and suffering. The applicant submits the injury scale value (‘ISV’) applicable to her as assessed under s 52(4) of the CLA and Part 2 of the Regulations exceeds 10.
In the alternative, if the maximum injury scale value applicable to her is inadequate to reflect the adverse impact of the multiple injuries on her such that an uplift in the injury scale value is required pursuant to Regulation 12 of the Regulations, thereby resulting in the injury scale value exceeding 10.
Further, in the alternative, she is entitled to an assessment of damages for non-economic loss under s 52(5) of the CLA, namely that the consequences of the multiple injuries sustained by the applicant are exceptional when judged by comparison with other cases and the application of the threshold as prescribed by s 52(4) of the CLA is, in the circumstances, harsh and unjust.
The applicant submits that she has suffered a reduced working capacity and an impaired earning capacity. She submits she has suffered economic loss and will continue to suffer economic loss, including loss of superannuation benefits. The applicant submits that she is entitled to damages for loss of impairment of future earning capacity and loss of superannuation benefits because the injury scale value applicable to her as assessed under s 56(a)(2) of the CLA and Part 2 of the Regulations exceeds seven.
In the alternative, if I were not satisfied that her injury scale value exceeded seven, the maximum injury scale value applicable to her is inadequate to reflect the adverse impact of the multiple injuries on her such that an uplift to the injury scale value is required pursuant to Regulation 12 thereby resulting in the injury scale value exceeding seven.
In the alternative, the applicant submits she is entitled to an assessment of damages for the loss and impairment of future earning capacity and loss of superannuation benefits under s 56A(3) of the CLA, namely because of the consequences of the applicant’s injuries with respect to loss or impairment of future earning capacity are exceptional and the threshold as prescribed by s 56A(2) of the CLA is, in the circumstances, harsh and unjust.
It was submitted that the applicant has and will require voluntary assistance and services from family members. She seeks damages for gratuitous services because the injury scale value applicable to her, as assessed under s 58(4) of the CLA and the Regulations, exceeds 10, or in the alternative, if it does not exceed 10 then an uplift to the injury scale value is required resulting in the injury scale value exceeding 10.
The applicant claims that services have been provided for at least six hours per week for a period of at least six consecutive months.
The applicant claims that she has required and will continue to require into the future treatment and medications, including pain relief and inflammatory medication for multiple injuries sustained as a consequence of the collision. The applicant submits that she has incurred special damages in seeking medical treatment and taking medications.
Finally, she has required and will continue to require into the future paid assistance for her activities of daily living, including assistance with household, domestic, and gardening duties, and will suffer economic loss by reason thereof.
The applicant claims damages to be assessed, as well as interests, costs, and any other orders that the Court deems fit.
The respondent denies that the applicant has suffered any injuries, loss or damage as a result of the accident or, in the alternative, if the applicant did sustain any injuries as a result of the accident, they were minor and have subsequently resolved. The respondent denies that the injury scale value for the injuries sustained by the applicant in the subject motor vehicle accident will exceed 10. Even if the applicant did suffer injuries in the subject motor vehicle accident, the respondent denies the level of adverse impact of such injuries that has been so severe and substantial such that the maximum ISV for the dominant injury is inadequate to reflect such impact and accordingly denies that the ISV should be higher than the maximum ISV for the dominant injury.
The respondent denies that the applicant is entitled to an award of damages for non-economic loss on the basis that the ISV applicable to her injuries should not exceed 10, and in the circumstances pleaded in the revised statement of claim, the applicant does not meet the criteria of ‘exceptional’ and ‘harsh and unjust’ as alleged. The respondent submits that the applicant’s injuries do not exceed the ISV threshold of seven as prescribed by s 56A(2) of the CLA and, in those circumstances, is not entitled to an award for any future economic loss.
The respondent essentially submits that any reduction in earning capacity in the past or future would have occurred in any event due to the pre-existing conditions that the applicant suffers from.
The respondent denied that the applicant was entitled to any award for gratuitous services.
Essentially, the respondent submits that the applicant’s claim of injury and consequential loss and damage did not arise out of the subject accident but are a result of conditions that commenced prior to the subject accident and would have (and have) continued after the accident.
PART B: ISSUES
The central issue in this case is whether the applicant suffered pre-existing injuries to her neck, back, right hip, and right shoulder prior to the accident, as well as any pre-existing mental health problems. The applicant submits that she was not suffering any pre-existing injuries prior to the accident and attributes all of her injuries to the accident.
The respondent submits that there is a body of evidence to suggest that the applicant had been suffering from ongoing pain associated with injuries to her neck, back, right hip, and right shoulder for years prior to the accident. Further, she had been diagnosed with depression and anxiety and had been receiving treatment from a psychiatrist for many years prior to the accident. The respondent submits to the extent that there is an evidentiary burden on them to disentangle injuries sustained other than through the accident they have done so.[1]
[1] Watts v Rake (1960) 108 CLR 158 at 160.
It remains of central importance to determine whether the applicant has established on the balance of probabilities that the injuries she suffers from are attributable to the accident arising from the respondent’s negligence.[2] As has been said, the respondent’s liability does not extend to disabilities that result from pre-existing injuries alone or to injuries that would supervene irrespective of the accident.[3]
[2] Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ).
[3] Walker v Briddon (1986) SASCFC (unreported 1 September 1986).
In this case the applicant relied on the opinions expressed by doctors who express medical opinions based on their specialised knowledge in that field. I bear in mind that in so far as an opinion is based on assumed facts, those facts must be established by the evidence.[4] An issue that arises in this case is whether some of the doctors have provided opinions based on an incorrect factual basis or on a factual basis not established on the evidence.
PART C: THE EVIDENCE
[4] Makita (Aus) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [743]–[744] (Heydon JA).
The Applicant
The applicant was unrepresented at trial. She was born in Serbia, and English is not her first language. She came to Australia in 2014. During the trial the applicant required the assistance of an interpreter and oscillated between using the interpreter and speaking English.
Consistent with authority, I provided the applicant with such assistance as was required to ensure she had a fair trial. I did so in a way that did not conflict with my role as an ‘impartial adjudicator’.[5]
[5] Reisner v Bratt & Anor [2004] NSWCA 22, [4]–[6].
The applicant gave evidence in support of her claim. As I have said, she was born in Serbia on 9 October 1965 and undertook her education there.
Work History
As to her work history, the applicant gave evidence that after leaving school, she worked in a laboratory making dyes for carpets between the ages of approximately 18 to 20. Thereafter, the applicant opened her own business selling shoes. She maintained that business for about 11 years.
The applicant closed her business in about 2012 when she got married. The applicant said that between 2012 and 2014, she did not work due to the economic conditions in Serbia. In 2014, the applicant decided to travel to Australia for a ‘better life’ with her husband.
The applicant arrived in Australia with her husband on 17 February 2014. Shortly after she arrived in Australia, she was the subject of domestic violence at the hands of her husband, and the two separated in 2014. When she first arrived in Australia, she was unable to speak English, so she undertook a number of English courses. She said she studied English ‘full-time’ from 2014 to 2017. The applicant said since being in Australia, she has been on Newstart Allowance through Centrelink. The applicant has not worked since coming to Australia in 2014. She said prior to the accident the reason she had not worked was because she wanted to learn English.
Disability Support Pension – January 2017
The applicant said that about two months or so before the accident (10 August 2017), she had stopped her studies. She said the reason for that was because she was starting to ‘mix up words and I had too [much] difficulty with my speaking’. She said that she ‘wanted to have a break because the course felt overwhelming, there were too many words, and my speech was becoming very difficult for me, and I wasn’t speaking properly’.
The applicant agreed that in February 2017 (prior to the accident), she had made an application for a disability pension because she felt that, at that stage, she could not work. She said the reason that she felt she could not work was that she ‘had some depression, but not like today, not like here’.
Accident
In terms of the accident itself, the applicant said she was riding her bicycle along Henley Beach Road when she saw a vehicle come from a side street towards her on her left-hand side, and she tried to avoid it by swerving away (presumably to the right), but the car hit her bicycle, and she fell off. She said she did not remember falling off the bike, and she said she thought she lost consciousness. The applicant said her next memory was waking up in a room in a house, and the police were present. As I understand her evidence, the applicant was saying that the driver of the car, Mr Gwynne, took the applicant back to his house after the accident. It was at Mr Gwynne’s house that she was seen by ambulance officers who examined her. The ambulance officers did not take her to hospital or administer any first aid to her relating to any injuries.
During cross-examination, the applicant was challenged about whether she had lost consciousness. The applicant agreed that she did not tell her general practitioner or treating doctors after the accident that she had lost consciousness. She said none of them had ever asked her about it.
Although the applicant said that she lost consciousness after the accident, she agreed that while the ambulance officers saw her and checked her, she was not taken by the ambulance officers to the hospital. The respondent submitted that had she lost consciousness, she would have been taken to the hospital for further observation.
Injuries after the Accident
I turn to set out the applicant’s evidence about the injuries she claims she suffered as a result of the accident.
The applicant gave evidence that after the accident, she felt pain on the right side of her leg, arm, and head. She said that her injuries were on the right side. Although she had some pain on her left, it was mostly on the right. She said she could not move her right arm after the accident and that her entire arm and leg were hurting. She said that she also had a headache, pain in the chest under the rib cage and pain in the head.
As I have already said, ambulance officers did not take her to the hospital or treat her for any injuries immediately following the accident. However, the applicant said on the day of the accident, in the afternoon (the accident was in the morning), she went to see her general practitioner, Dr Kerry, to get ‘something for the pain. I wasn’t feeling well’. She said when she saw Dr Kerry on the day of the accident ‘I just couldn’t move the arm and told Dr Kerry what had happened, and he send [sic] me to have some scans done’.
It is worth noting at this stage that Dr Kerry, who gave evidence and whose evidence I will set out in more detail later in these remarks, said the first time he saw the applicant after the accident was on 15 August 2017 (5 days after the accident). According to Dr Kerry, on 15 August 2017, the applicant did not mention the accident on 10 August 2017. Instead, she discussed with him the status of her permanent Disability Support Pension application (a process she commenced in February 2017). According to Dr Kerry, it was not until 17 August 2017 that the applicant attended his rooms and complained to him about injuries, she claimed she had suffered as a result of the accident on 10 August 2017. It was on that date (17 August 2017) that Dr Kerry conducted an examination of the applicant. I will come to the details of that examination later in my reasons.

In terms of ongoing injury, the applicant said that as a result of the accident, she always has pain in her shoulder and leg. She said she had difficulty walking for about a year and a half.
She said in about 2019, she was given an injection in her shoulder to help with the pain. She agreed that she is able to lift her arm in front of her and put it above her head. She said she can stretch her arm out above her head.
As to her hip, the applicant said that in 2021 and 2022, she received injections into her right hip to help her. She said overtime, the pain in her leg worsened.
As to her neck, the applicant said that the pain in her neck was mostly in the morning when she wakes up, but after some exercise, she feels better. She said that she always goes for a walk to look after herself.
The applicant said that after the accident in 2017, she had ‘nonstop’ headaches, possibly two or three times a week, associated with the pain in her shoulder, hip, and neck. She said in 2023, she still gets headaches ‘when the pain is strong in the body’. She said there was a change in her mood after the accident. She said she could not drive for a long time, although she now regularly drives a car.
Pre-existing Injuries?
The applicant said prior to the accident, she had some pain in her back, which she thought related to an ectopic pregnancy that she had. Significantly, she said that prior to the accident, she had no problem with her right shoulder, although she said there may have been some pain from her back that contributed to some shoulder pain. She said after an operation she had in 2003 in Serbia, she did have some neck problems and, from time to time, felt pain in her spine and in her back and neck, which she took a tablet for, from time to time. Significantly, she said that prior to the accident, she did not have any problems with her shoulder and had not sought any treatment in relation to her shoulder. In terms of her mental health, the applicant agreed that she had been seeing a psychiatrist, Dr Kutlaca, since about 2015. When she first started seeing Dr Kutlaca, she would see him every three to four months. The applicant said that she was feeling better, going to school, and looking for work leading up to the motor vehicle accident. She said that she had not talked to her general practitioner, Dr Kerry, about her mood and or any depression that she was feeling because her English was not good enough to talk to him about that. I note that is inconsistent with Dr Kerry’s evidence. She said she was suffering from ‘minor’ depression at the time of the accident.
The applicant disagreed that at the time of the accident, she had ongoing back pain for over 10 years. She disagreed that prior to the accident, she had many years of right shoulder pain. This was contrary to the evidence given by Dr Kerry that on 15 August 2017, during a consultation he had with her, that she told him that she had had ongoing backpain and shoulder pain for 10 years.
She disagreed that she had right hip problems for years prior to the accident. She disagreed that she had been experiencing pain in her right hip since at least 2013. This is inconsistent with Dr Zuvela’s evidence, which I will discuss later in my reasons. It is also inconsistent with what she told Dr Kerry during a consultation on 15 August 2017, namely that she had had right hip pain for two years.
She agreed that since at least 2015, she had been suffering from chronic depressive symptoms with generalised anxiety, reduced memory, concentration and insomnia.
Disability Support Pension Applications – an indication of pre-existing health problems?
The applicant agreed that she applied for a disability pension in February 2017 (six months before the accident). She said she made the application because she had depression, although she said, ‘not like today, not like here’.
When asked if she applied for a Disability Support Pension in January 2018, she denied it. When it was suggested to her that her treating doctor, Dr Zuvela, prepared an application for a Disability Support Pension in 2018, she said she did not know about that. I found the applicant’s evidence on that topic unconvincing because of the evidence that Dr Zuvela gave, which I will briefly mention. Dr Zuvela gave evidence that he did prepare a Disability Support Pension application for the applicant in 2018. A letter to Centrelink dated 6 January 2018 and signed by Dr Zuvela was tendered (2018 Centrelink letter).[6] The 2018 Centrelink letter attached a list of the applicant’s medical problems, the date the medical problems commenced, and how they had been impacting the applicant. I set out a summary of the medical problems Dr Zuvela said the applicant had as of January 2018, and how long he said she had had those medical problems for:
1.Discogenic lumbar pain. Date of onset - many years ago. Impact on ability to function - causes pain, impairs ability to lift objects, causes problems bending, reduces mobility and causes stress and anxiety.
2.Cervical Spondylosis. Date of onset – many years ago. Impact on ability to function - causes chronic cervical pain, impairs ability to lift objects, causes problems bending, reduces mobility and causes stress and anxiety.
3.Right hip osteoarthritis. Date of onset - 2013 (date of diagnosis 2011). Symptoms – chronic hip pain and disability, restricted range of movements, worsening mobility. Impact on ability to function – causes pain, reduces mobility and impairs ability to lift objects.
4.Major depression/anxiety. Date of onset – many years ago. Impact – reduces ability to concentrate, remember details and learn, causes stress and anxiety, and reduces confidence.
[6] Exhibit R3.
The applicant was asked questions about the details contained in the 2018 Centrelink letter. The following evidence is relevant:
Q.What I’m suggesting to you is that as at early 2018 you were suffering from chronic lumbar back pain which had commenced many years before; do you agree with that.
A.Yes, I already mentioned that I had the back pain from my operation which was started before coming to Australia, maybe 2005.
Q.And that lumbar, or low back, problem caused pain, impaired your ability to lift objects, caused problems bending and reduced mobility. Do you agree that that was the effect of your lumbar back condition in early 2018.
A.I am not able to tell you that because I’m not medically trained.
Q.It’s not really a medical question. As at January 2018, was your lumbar spine, that is your low back condition, causing you pain.
A.I did mention that I had pain in the back.
Q.Was your lumbar back, your low back condition, impairing your ability to lift objects.
A.No, I was able to lift objects.
Q.Was your low back problem causing difficulties bending.
A.Maybe sometimes. I cannot tell you exactly.
Q.Did the lumbar spine condition in January 2018 mean that you had reduced mobility.
A.No.
Q.Ms Kostic, I suggest to you that in about January 2018 you were suffering from a condition called cervical spondylosis. Have you had that diagnosis before, cervical spondylosis.
A.No.
Q.In any event, as at January 2018 you were suffering from chronic neck pain and restricted spinal movements, is that correct.
A.Yes.
Q.Can I suggest to you that the date of the onset of those symptoms were many years ago, many years before 2018, is that correct.
A.Yes. With the back, yes.
Q.I’m talking about your neck, not your back.
A.Yes, but not frequently, only sometimes.
Q.And that at this time you had a condition called right hip osteoarthritis. Have you heard of that diagnosis before.
A.What period was that?
Q.It’s called right hip osteoarthritis. Have you heard of that diagnosis, right hip osteoarthritis.
A.No.
Q.Can I suggest that at that time in January 2018 you were suffering from chronic right hip pain and disability and a restricted range of movement, is that correct.
A.I had more pain after 2017 in the hip, but I’m not sure about the diagnosis.
Q.What I’m suggesting to you is that in January 2018 you were suffering from chronic right hip pain and disability and a restricted range of movement of the right hip, is that correct.
A.Most likely I did have the pain.
Q.Can I suggest to you that the date of onset of that condition was 2013.
A.I don’t agree.
Q.And that in January 2018 you were continuing to suffer from major depression and anxiety, do you agree with that.
A.Yes.
Q.In particular, you were suffering from chronic depressive symptoms with generalised anxiety with reduced memory and concentration and insomnia, were they the symptoms you were experiencing in approximately January 2018.
A.Yes.
Q.And that the date of onset of that condition was many years before 2018, do you agree with that.
A.Not many years before. Maybe a couple.
Q.Can I suggest to you, at least since 2015.
A.Yes.
To the extent that the applicant denied having any significant pre-existing health problems prior to the accident, I do not accept her evidence. Whether intentionally or not, I find that the applicant downplayed her pre-existing injuries. As I have already mentioned prior to the accident the applicant had told her treating doctors about protracted problems with her neck, shoulder, back and hip. Further the evidence supports a finding that prior to the accident the applicant had chronic mental health problems that significantly affected her ability to function in life. I am not prepared to rely on the applicant’s evidence except where there is independent support for what she says.
Dr Jack Kerry
Dr Kerry practices as a General Practitioner. He gave evidence that he first saw the applicant in January 2015. At that point, the applicant presented as depressed. She spoke to Dr Kerry about her living situation that she was feeling depressed, and as a consequence, Dr Kerry prescribed her anti-depressant medication. Dr Kerry gave evidence of the applicant seeing him on a variety of dates, which he gave evidence about by reference to notes he made during the course of those consultations.
On 18 July 2016, Dr Kerry noted that the applicant had been seeing Dr Kutlaca (Psychiatrist) for the previous two years.
On 26 July 2016, he saw the applicant in relation to a reported back ache for which he prescribed Brufen and Panamax.
On 22 August 2016, Dr Kerry provided the applicant with a referral to Dr Kutlaca to help him get paid through Medicare.
On 1 December 2016, Dr Kerry saw the applicant for depression and gave her a certificate.
On 19 January 2017, Dr Kerry gave the applicant a certificate she could give Centrelink, certifying she was unable to work because of her depression.
On 6 February 2017, Dr Kerry saw the applicant and made a note that she was suffering from mild to severe anxiety.
On 15 February 2017, when Dr Kerry saw the applicant, he noted that her anxiety was still present.
On 10 March 2017, he saw the applicant and gave her a medical certificate for Centrelink due to her depression and anxiety.
On 12 April 2017, Dr Kerry noted that the applicant was trying to get a disability pension because of her depression and anxiety, which meant she was unable to work or study.
On 9 June 2017, the applicant expressed anxiety in relation to her Disability Support Pension application. She also reported having a painful right shoulder, right hip and back ache.
On 15 August 2017, the applicant saw Dr Kerry. She told him that her Disability Support Pension had been refused. During the course of that consultation, Dr Kerry said that the applicant told him that she had been having back aches and right shoulder pain for 10 years, right hip pain for two years, with pain going down her right leg, which he described as right-sided sciatica. He clarified that the right hip pain had been ongoing for two years, but the right-sided sciatica was not said to be present for the previous two years.
The next time he saw her was on 17 August 2017. On that date, the applicant reported to him having been involved in a motor vehicle accident.
An issue arose during the course of the trial as to whether the applicant had seen Dr Kerry on the day of the accident or the next day. The applicant put to Dr Kerry that she had, in fact seen him either on the 10 August (day of the accident) or the next day (11 August 2017). Dr Kerry maintained that he saw her on the 17 August 2017 in relation to the accident. Dr Kerry was of the understanding that the accident had occurred on that day, presumably based on what the applicant had told him. Based on the evidence of Dr Kerry, it has not been established that the applicant saw Dr Kerry on the day of the accident or the following day. I am satisfied that the applicant mentioned the accident to Dr Kerry for the first time on 17 August 2017. I am satisfied that she saw Dr Kerry on 15 August 2017, and during that consultation, she did not mention the accident. Rather, she spoke to him about her Disability Support Pension being refused and gave a history to him consistent with her having long-term problems with her hip, shoulder and back, all of which pre-existed the motor vehicle accident.
Dr Kerry gave evidence of his examination of the applicant on 17 August 2017. During the general examination Dr Kerry assessed her blood pressure, heart, and lungs, as well as a general physical examination. He checked her range of movement. He noted some restrictions of neck movements, right arm up to 90 degrees on abduction, moderate restriction of neck movement and that she was tender over the cervical spine on both sides. He noted that no abnormality had been detected during the course of the general examination. Despite the description ‘no abnormality’, he said by ‘no abnormality’, he meant “no severe abnormality”. Dr Kerry confirmed that during the examination on 17 August 2017, he did not see any bruising on Ms Kostic’s body. He said he looked at her shoulder but did not see any grazing or bruising. He did not specifically look at her hip but said that she walked into his office without a limp “so I was not convinced that she had any serious injury of the hip”. He said because of her presentation, he did not send her for X-rays in relation to the hip.
Dr Kerry gave evidence that if the applicant did suffer any injury during the course of the bicycle accident, they were soft tissue injuries. He said that he would expect the soft tissue injuries to resolve within a few months but said that the shoulder joint is probably the worst joint in the body to have an injury to, so he gave the opinion that he expected the shoulder injury, which included bursitis, can persist for six to seven months.
On 20 September 2017, Dr Kerry’s notes record that Ms Kostic told him that she had had a painful right shoulder for about ten years. He went onto explain that on 20 September 2017, the applicant may have shown him a report from Slavica in her language that referred to her painful right shoulder, which may have been why he noted ‘painful right shoulder for ten years’. His evidence was unclear as to whether or not Ms Kostic had actually reported that to him on 20 September 2017. However, Dr Kerry said, by reference to his notes, that on 15 August 2017, Ms Kostic did report to him that she had a painful right shoulder for ten years (mentioned earlier). The applicant suggested to Dr Kerry that she had never told him that she had suffered from a sore shoulder for ten years. Dr Kerry did not agree with that proposition and said ‘I have got it written down on two occasions. I don’t agree with that … I wouldn’t make it up’. I accept Dr Kerry’s evidence on that topic. It is not reasonable to think that Dr Kerry would note that Ms Kostic had told him that she had a sore shoulder for ten years if she had never said that.
Dr Kerry gave evidence as to the treatment and various examinations that were conducted on the applicant following the accident. His evidence on that topic is as follows:
QIf you could reflect on the injuries and the treatment after the accident.
AAfter the accident, on 22 August, she had X-rays of her lumbar spine and her right hip. The findings at the time were just in the lumbar spine, what we call facet joint degeneration at the L5-S1 level which is the last disc. There was a slight narrowing of what they call the foramen where the nerves exit from the spine, but there was no compression of any nerves. So the facet joint degeneration would have been pre-existent. It doesn’t occur overnight. It takes years to come on. The X-ray of her right hip showed some narrowing of the hip of the joint space and suggestive signs of mild to moderate osteoarthritic changes. No fracture or any stress fractures were identified. Further X-rays on 30 August of the right wrist did not show any abnormality. The ultrasound of the right shoulder -
HIS HONOUR
QWhen was that done. Was that done on 30 August.
A30 August. The ultrasound showed no tears of tendons, just like a mild thickening of what they call a subacromial bursa and a bursal bunching which, if you can imagine a bursa being a bag of fluid in the joint and that, of course, can get bruised as a result of the fall from a bike, as in her case, but it was of mild - mild degree.
AFurther X-rays were taken on 30 November 2019 and in summary a CAT scan of the cervical spine, the right shoulder. There was a no acute fracture demonstrated in the cervical spine. No acute fracture demonstrated involving the right shoulder. There was a no acute fracture demonstrated in the cervical spine. No acute fracture demonstrated involving the right shoulder. An incidental greater trochanter was noted by the possible right humerus with no evidence of pathological fracture. Trochanter means like a thickening, if you can imagine, a collection of cartilage tissue on the outside of the shoulder. That is nothing of significance to interfere with the movement of the shoulder. So, in summary the only positive sign, apart from the fall, would be the subacromial bursitis, which is quite feasible. condition that can be treated with anti-inflammatory tablets or with ultrasound guided injection of cortizone into the bursar. Usually with treatment you get fairly good results. In the long-term it should not leave any permanent disability. There were no tears to be demonstrated in the muscles or tendons. The only thing that did show was an inflammation of the tendon the supraspinatus tendon which again with time can resolve. So, severe bruising following the fall from the bike, the bicycle, could have caused the bursitis and the tendinitis which in effect is something that with time you would expect to resolve. Her movements at the shoulder joint were moderately restricted and that she could have up to her arm up to 90 degrees at the time. Generally speaking, it would leave up to 10% disability I would say going by the X-ray results and clinical findings.
Dr Marko Zuvela
Dr. Zuvela is a General Practitioner. Dr Zuvela first saw the applicant on 24 October 2017. Dr Zuvela spoke Serbian and said that all of his conversations with the applicant during the course of the appointments that he had with her were in Serbian.
Dr Zuvela said that when he saw the applicant on 24 October 2017, she came to him about issues she was having with Centrelink. The past medical history she gave to him on that date was of depression and anxiety, right cholecystectomy 1995, hypocholesterolemia, right side subacromial bursitis, hip, right hip osteoarthritis, carpal tunnel syndrome on the right side, chronic back sciatica. He also diagnosed her with a chronic rotator cuff injury, spondylosis and depression.

Dr Zuvela explained that his description of the rotator cuff injury being chronic meant that she had a right shoulder condition that had been present for not less than three months when he saw her. In other words, the rotator cuff injury predated the accident. Notably, on 24 October 2017, the applicant did not mention the motor vehicle accident to Dr Zuvela at all. That is notwithstanding that she attributes all of her injuries to the motor vehicle accident and gives evidence to the effect that she did not have any serious or troubling injury to any part of her body prior to the motor vehicle accident.
On 6 January 2018, Dr Zuvela said he assisted the applicant with an application to Centrelink for a Disability Support Pension. To that end, Dr Zuvela prepared a report that set out the reasons why, in Dr Zuvela’s opinion, the applicant qualified for a disability pension. Dr Zuvela gave evidence that he was satisfied that as of 6 January 2018, Ms Kostic had a number of injuries that had been present for some time (predating accident), that reasonable treatment had been undertaken and that by January 2018, there was little or no prospect of any improvement even with further treatment. I have, earlier in these reasons, set out the main findings Dr Zuvela made namely: (1) a discogenic lumbar pain condition that had been present for many years that affected the applicant’s ability to lift and bend; (2) cervical spondylosis, which had been present for many years and caused chronic neck pain, affected the applicant’s ability to lift and bend and caused stress and anxiety; (3) right hip arthritis which had been present since 2013 and caused chronic hip pain, reduced range of movement which affected the applicant’s mobility and ability to lift anything; (4) major depression and anxiety that had been present for many years and which affected the applicant’s memory, concentration, confidence and social functioning.
According to Dr Zuvela, in his letter to Centrelink dated 6 January 2018, he said that because of the applicant’s injuries, she was unable to work or study. Notably, in Dr Zuvela’s letter to Centrelink, he makes no mention of the applicant’s car accident or any injuries that may have been attributable to it.
Dr Zuvela gave evidence that his diagnosis of the applicant with various injuries is accurately recorded in the reports he wrote. He said the applicant’s injuries are a neck injury, a right shoulder injury, a right hip injury, a lumbar back injury, as well as aggravation of her pre-existing depression and anxiety. Dr Zuvela prepared a report dated 2 August 2018 addressed to QBE Insurance in response to a request for a medical report on Ms Kostic with respect to injuries she sustained during the course of the accident on 10 August 2017. The report was tendered (Exhibit A11).
Dr Zuvela attributed a number of the applicant’s injuries to the motor vehicle accident, including pain in the back of the neck and upper back, right shoulder pain and restriction, lumbar back pain and restriction and right hip pain and disability.
What he failed to do in his report was to indicate that Ms Kostic had pre-existing injuries to her right hip, lumbar back (discogenic injury from many years before 2018), right hip arthritis with onset from 2013 causing chronic hip pain and disability, reduced range of movement reducing mobility to lift and finally that she had suffered from major depression with anxiety for many years and had been under the care of a psychiatrist. To the extent that Dr Zuvela’s report attributed all of the applicant’s injuries to the motor vehicle accident without any reference to her having a number of chronic pre-existing injuries was positively misleading. Dr Zuvela agreed that he should have included that detail in his report to QBE insurance. He claimed his intention was not to mislead, and he said, ‘It was. I’m just busy’. I found Dr Zuvela’s evidence on this topic unconvincing.
Dr Zuvela acknowledged that with respect to his report dated 2 August 2018, he should have included a reference to the chronic right shoulder condition as a pre-existing condition, and he should have included a reference to the pre-existing neck and right hip, but he did not. He acknowledged that was a significant omission in the report.
The impression that the report created was that Ms Kostic did not have any pre-existing conditions and the motor vehicle was solely responsible for all of her injuries, which was, as I say, positively misleading.
Tindaro Fallo
The applicant called psychologist Tindaro Fallo. She tendered a report of Mr Fallo’s dated 24 August 2020.[7] Ms Kostic was referred to Mr Fallo in August 2018 for psychological management of injuries that were reported to Mr Fallo to have developed due to a motor vehicle accident on 10 August 2017.
[7] Exhibit A10.
Mr Fallo, in his report, confirms that the applicant had attended 20 psychological therapy sessions involving cognitive behavioural therapy, interpersonal therapy and narrative exposure therapy since being referred to him. In his report, Mr Fallow confirmed that the applicant ‘reported extended periods of very low mood, poor sleep, anxiety, interpersonal difficulties, low motivation, poor memory, poor concentration, difficulty thinking clearly, loss of confidence in her decision making and judgment, low self-esteem and feelings of hopelessness’. Mr Fallo attributed all of the applicant’s psychological symptoms to the motor vehicle accident in 2017. In addition, the applicant reported to Mr Fallo that she suffered heightened anxiety associated with driving, feelings of vulnerability, loss of confidence and social withdrawal. In Mr Fallo’s opinion, Ms Kostic met the DSM-5 Criteria for major depressive disorder and somatic symptom disorder. According to Mr Fallo, Ms Kostic’s physical injuries and pain has aggravated her depression and her difficulties with anxiety, stress and worry. Mr Fallo, in his report, said, “Ms Kostic is a vulnerable person with very poor psychosocial functioning. She has a very low tolerance for stress, and her mental state is easily aggravated, which heightens her experience of pain, anxiety and depression. Ms Kostic’s condition impacts her capacity to engage in employment/vocational activities. She is unable to study or work for 15 hours”. During his evidence, Mr Fallo confirmed that his opinion that he gave which attributed all of the applicant’s psychological injuries to the motor vehicle accident was based on the history the applicant gave him.
He was not told by the applicant that she had significant longstanding pre-existing major depression and anxiety requiring psychiatric attention for many years prior to the accident. He said in terms of his diagnosis of the applicant, and his opinion that she met the criteria for major depressive disorder and somatic symptom disorder would not have changed had he been aware of the pre-accident mental health history. Mr Fallo said that he had understood that the applicant had engaged with a psychiatrist in around 2014 following the breakdown of her relationship, which involved domestic violence. Based on the history he took from the applicant, he was unaware that there were ongoing issues regarding psychiatric and or psychological problems between 2015 and the date of the accident. Mr Fallo was unaware that the applicant had been seeing Dr Kutlaca between 2015 and the date of the accident. In the course of cross-examination, Mr Fallo was asked a series of questions which detail the applicant’s continual involvement with Dr Kutlaca, who treated her for depression and anxiety. Having put that history to Mr Fallo, the following evidence is relevant:
QIf in fact the history that I have given you is accurate [ongoing psychiatric care] and accepted by the Court, can I put it to you that her presentation to you may either be as a result of the motor vehicle accident, or it may be as a result of the pre-existing condition. Is that a fair comment.
AYes.
The history that Mr Fallo received from the applicant was that she was functioning reasonably, from a psychological point of view, prior to the accident and that her mental health deteriorated following the accident.
It is concerning that the applicant would make no mention of her pre-existing psychological or psychiatric problems for which she had sought the assistance of a psychiatrist and had received medication for her psychiatric or psychological problems over many years.
To the extent that Mr Fallo’s opinions are based on what Ms Kostic told Mr Fallo, I am not prepared to rely on them because the factual foundation for the opinion is not established by the evidence. I am satisfied that the applicant had serious psychological injuries that impacted her day-to-day living for many years prior to the accident. I am not satisfied that the applicant has established on the balance of probabilities that the psychological injuries articulated by Mr Fallo are attributable to the accident.
PART D: FACTUAL FINDINGS
Thus far, I have indicated certain views I formed during the course of my discussion of medical evidence. In this part, I will set out my findings regarding the applicant’s pre-existing injuries and the circumstances of the accident.
Applicant Submissions
The applicant’s submission is that I should accept her account that she did not suffer from any significant health problems prior to the accident. She submitted that there is no evidence to establish she had any pre-existing shoulder, hip, neck or back problems. She says there is no evidence of her being treated for any injuries prior to the accident. She says that after the accident, she received injections in the shoulder and in the hip but not before. Therefore, it is open to infer that the accident caused the injury to those areas. She acknowledges she had some mental health problems before the accident but says they were made worse by the accident.
I am unable to accept the applicant’s submissions to the effect that all of her injuries are connected to the accident. The applicant’s evidence and submissions are inconsistent with the independent medical evidence given by Dr Kerry and Dr Zuvela. Both doctors record that the applicant told them on various occasions about injuries to her shoulder, back, neck and hip that had been present for years prior to the accident.
I found the applicant’s evidence to be not credible or reliable.
Based on the evidence of Dr Kerry and Dr Zuvela, I make the following findings of fact in relation to the applicant’s pre-existing injuries:
1.The applicant suffered from anxiety and major depression, for which she sought the assistance of mental health professionals beginning in 2015. Specifically, she saw Dr Kutlaca, a psychiatrist, from 2015 up to the date of the accident. Dr Kutlaca treated the applicant for anxiety and depression with medication. The applicant also met with Dr Kerry for counselling sessions in relation to anxiety and depression dating back to 2016. In January 2017, the applicant made an application to Centrelink for a permanent Disability Support Pension on the basis that she could not work because of her mental health problems.
2.The applicant suffered from lower back problems for many years prior to the accident. Her lower back problems caused her difficulty with mobility, bending and lifting. The applicant sought treatment from Dr Kerry for pain associated with her lower back and received medication for the same prior to the accident.
3.The applicant had had neck problems for many years prior to the accident. Her neck problems at different times caused her problems with bending, lifting, and mobility. The applicant sought treatment from Dr Kerry from time to time in relation to those issues. Her neck issues caused stress and anxiety. The applicant’s neck has a degenerative condition, which would likely get worse over time.
4.The applicant had chronic right hip problems for years prior to the accident. The condition was most probably a degenerative condition that was likely to get worse over time.
5.The applicant suffered from ongoing problems with her shoulder, which were present for a number of years prior to the accident. The applicant sought treatment for her shoulder with Dr Kerry in June 2017.
Findings in relation to the Accident
There is no dispute that the applicant fell from her bike after the respondent’s car entered Henley Beach Road from a side street, causing the applicant to fall. Although the applicant says her bike was hit by the car, there is no evidence to support the applicant’s account of being struck by the car. Further, her lack of any serious injuries arising out of the accident tends to suggest that she was not struck by it. It may be that the car hit her bike as opposed to her, but I am unsure. Ultimately, I am unable to resolve this issue, although I do not think it makes much difference to the resolution of the claim.
I am satisfied that the applicant was seen by ambulance officers at the scene of the accident but was not conveyed to hospital. I am not satisfied that the applicant lost consciousness as a result of the fall. Had she done so, I would have expected that to have been reported to the ambulance officers and that the ambulance officers would have taken her to the hospital, at least, for further observation.
I am not satisfied that the applicant attended Dr Kerry’s rooms on the day of the accident as she claimed. I am satisfied, based on Dr Kerry’s evidence, that the applicant attended Dr Kerry’s rooms on 15 August 2017. I am satisfied that the applicant did not raise with Dr Kerry any injuries that she alleges she suffered as a result of the motor vehicle accident with him on that date. I am satisfied that she attended his room to discuss a Centrelink application, during which she reported a significant pre-accident medical history to him.
Findings regarding injuries caused by the Accident
The applicant attended at Dr Kerry’s rooms on 17 August 2017, where for the first time, she reported injuries to her body that she says were caused during the accident. I am satisfied that Dr Kerry conducted a general examination of her, which included looking at her shoulder. No bruises, grazes, or cuts were observed or reported to be anywhere on her body.
Whilst I am satisfied that the applicant had pre-existing injuries to the precise areas she claims were injured during the accident, I do accept, on balance, that the applicant suffered some relatively minor injuries to the areas of her neck, shoulder, and hip as a result of the accident. I come to that conclusion based on the fact that I accept that she fell from her bike and probably onto her right side. In those circumstances, it is reasonable to conclude she would have suffered at least some injury to her right side. I say that the injuries were relatively minor for a number of reasons. First, ambulance officers administered no treatment to her and did not take her to hospital. Second, when she saw Dr Kerry on 15 August 2017, she made no mention of any injuries as a result of the accident. This suggests that any injuries suffered by the applicant were of little moment because, if they were, one would expect she would have mentioned it. Third, on 17 August 2019, when Dr Kerry examined the applicant for injuries arising from the accident, he saw no bruising and, following the examination, made a note “gen exam NAD”, meaning general examination, no abnormality detected. Fourth, for reasons I explain later in these reasons, I accept Dr Phillips’ (Orthopaedic Surgeon) evidence that the applicant’s injuries were in the nature of musculoligamentous strains to the neck and shoulder and a contusion to the hip, which would have resolved in no longer than 12 weeks but more likely six weeks.
PART E: INJURY SCALE VALUE (ISV)
Legal Framework
The applicant’s damages are to be assessed by applying Part 8 of the CLA and the Regulations. I will set out the relevant sections of the CLA and the Regulations as I come to the various heads of damages. As will become clear, eligibility for damages for non-economic loss, future economic loss, and gratuitous services is dependent upon and governed by the injury scale value attributed to an applicant’s injuries.
The rules for assessing the ISV are set out in the regulations and Schedule 1 (Range of Injury Scale Values), which is attached to the regulations. Schedule 1 provides the number ranges for particular injuries that a court is to consider when assessing the ISV for those injuries.[8] The injury must be expressed as a whole number (a fraction or, half or more is rounded up).[9] In assessing the ISV for an injury that is mentioned in the injury column of Schedule 1, a court must consider the range of ISVs stated in the Schedule for the injury.[10] Schedule 1 sets out provisions relevant to using the Schedule to assess an ISV for particular injuries, including examples of the injury, factors affecting ISV assessment and comments about the appropriate level of ISV, which the Court must have regard to when assessing the ISV.[11] In assessing the ISV, the Court may also have regard to a number of matters which are set out in regulation 9(3) and include the injured person’s age, the effects of a pre-existing condition of the injured person,[12] difficulties in life that were likely to have emerged whether or not the injury happened,[13] where there are multiple injuries, the range for, and other provisions in relation to the non-dominant injury of the multiple injuries.[14]
[8] Regulation 6(1) and (2).
[9] Regulation 7.
[10] Regulation 8.
[11] Regulation 9(1) and (2).
[12] Regulation 9(3)(a).
[13] Regulation 9(3)(b).
[14] Regulation 9(3)(d).
I set out the regulations as they apply to an assessment of an ISV in circumstances where there are multiple injuries, as there are in this case:
11—Multiple injuries
(1)     Subject to regulation 12, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury.
(2)     To reflect the level of adverse impact of multiple injuries on an injured person, the Court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the Court would assess for the dominant injury only.
Note—
This regulation acknowledges that—
(a)the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured person; and
(b)if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high.
12—Multiple injuries and maximum dominant ISV inadequate
(1)     This regulation applies if a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum ISV for the dominant injury is inadequate to reflect the level of impact.
(2)     To reflect the level of impact, the Court may make an assessment of the ISV for the multiple injuries that is higher than the maximum ISV for the dominant injury.
(3)     However, the ISV for the multiple injuries—
(a)must not be more than 100; and
(b)should rarely be more than 25% higher than the maximum ISV for the dominant injury.
(4)     If the increase is more than 25% of the maximum dominant ISV, the Court must give written reasons for the increase.
ISV Reports
In this matter, I was assisted in coming to a conclusion about the ISV number to be attributed to the applicant’s injuries by ISV medical reports, prepared in accordance with regulation 23, from Dr John Bastian and Dr Frederick Phillips following medical assessments they separately conducted on the applicant.
Dr John Bastian - ISV Report (Bastian report)
Dr Bastian examined the applicant on 30 January 2020 to prepare a report and give an opinion on the Injury Scale Value (ISV) for the applicant’s injuries. I have had regard to Dr Bastian’s report dated 30 January 2020 (Bastian report), which sets out the details of his examination, the information he had regard to and his opinions. I set out Dr Bastian’s opinion contained in the Bastian report:
Opinion
My opinion addresses the following for each accident-related injury as per the referral letter.
1Diagnosis
Ms Kostic presents with ongoing mechanical neck pain I suspect her headaches are more myogenic in origin
She presents with ongoing somatic right shoulder pain There does not appear to be evidence of a right shoulder impingement syndrome There are supporting ultrasound findings. There may have been a degree of pain fear avoidance
In relation to her right wrist, there is no way of offering an opinion in regard to impairment, in view of her history of wrist problems and the absence of any clinical documentation of her right wrist problems prior to the accident in question Certainly her clinical findings were quite soft in relation to her right wrist, with no real localising symptoms and with symmetrical range of motion There may be some mild discomfort emanating from the right 1^st carpometacarpal joint, and possible a very mild right Carpal Tunnel Syndrome, in light of the ultrasound and Nerve Studies
She presents with ongoing non-specific upper and low back pain I suspect there is a mild right hip, greater trochanteric bursitis, with a normal gait pattern
Ms Kostic’s presentation is in my opinion, being compounded by chronic pain mechanisms and underlying psychological factors which require further exploration
2Prognosis
Negative prognostic factors include the chronicity of Ms Kostic’s presentation and in my opinion, compounding chronic pain mechanisms/psychologic factors
3Injury Stability
I would consider Ms Kostic has reached stability in view of the time-frame since the accident
4Whether the injury is consistent with the stated cause
The injuries are compatible with the stated cause, though reflects both physical and psychologic factors.
5The effect of the MVA motor accident on any pre-existing injury and the extent to which it has been made worse by the injury
As stated above, Ms Kostic did allude to pre-existing right wrist problems It sounds as though she had intermittent mild and neck symptoms prior to accident in question
6The effect of the MVA motor vehicle accident on any subsequent injury and the extent to which it has been made worse by the injury
I am unaware of any subsequent injury
7Whether the assessment was based on AMA5 or other criteria with detailed reasons
AMA5 Guides

Dr Bastian, based on his examination of the applicant and on the reported history given to him by the applicant, gave his opinion as to the ISV item numbers for the applicant’s injuries along with an opinion as to the whole person impairment for those items. I set out his opinion, which is taken from the Bastian report:[15]
1.Neck and spine – ISV item number 83 – 7% whole person impairment.
2.Upper back and Thoracic spine – ISV number 89 – 0%whole person impairment.
3.Lower back and Lumbar Spine – ISV item number 89 – 0% whole person impairment.
4.Right shoulder – ISV number 92.2 – 4% whole person impairment.
5.Right hip – ISV Item number 123 – 0% whole impairment.
[15] Exhibit R5.
Dr Bastian gave evidence at trial. He confirmed in evidence that he obtained a history from the applicant, who told him that all of her injuries were attributable to the accident. He was told by the applicant that there was no history of significant shoulder, neck, back or hip problems prior to the accident. I note that the history given to Dr Bastian was markedly different from the history given by the applicant to Dr Zuvela and Dr Kerry.
Dr Bastian gave evidence that his opinion as to the ISV value for the applicant’s right shoulder condition did not take into account that there was a significant pre-existing right shoulder condition. With regard to the Bastian report, although there was some medical information available to Dr Bastian that may have indicated a significant pre-existing injury to the shoulder and right hip, it would seem he accepted the applicant’s explanation that there was some misunderstanding in the reported history given by the applicant to Dr Kerry about that. Accordingly, he treated the right shoulder injury (and other injuries) as having been caused solely by the accident. Dr Bastian gave evidence that had he been aware of the evidence that suggested the applicant had pre-existing injuries to her shoulder, neck, back and hip, he would have considered reviewing the impairment attributable to the accident and the consequent ISV or may have left it to the Court to apportion the injury.
As Dr Bastian said in his evidence, had he been given a history of pre-existing injuries (in similar terms given to Dr Kerry and Dr Zuvela), he would have likely assessed the applicant’s shoulder injury as ISV item number 93, which relates to a ‘Minor shoulder injury’ and has an ISV range of 0-5. As opposed to ISV item number 92.2, which relates to a ‘Moderate shoulder injury’ and has an ISV range of 6-10) or alternatively, he would have apportioned the ISV taking into account the pre-accident history. If he assumed that Ms Kostic could move her arm up to 170 – 180 degrees, then he would have given her an item 93. I note Ms Kostic gave evidence that she could move her right arm up above her head.
The history given to Dr Bastian, which formed part of his opinion, is contrary to the weight of the evidence and my findings in relation to the applicant’s pre-existing injuries.
To the extent that Dr Bastian’s opinion as to the applicant’s neck injury did not take into account that the applicant had been suffering from neck problems for years (according to Dr Zuvela), I am not prepared to rely on his opinion as to the ISV item number relating to her neck and cervical spine.
Based on the evidence, I am satisfied that the applicant had significant injuries to her shoulder, neck, back, and hip prior to the accident. In those circumstances, I place limited weight on Dr Bastian’s opinion as to the ISV item numbers (except where they accord with Dr Phillips) in circumstances where he was led to believe the applicant’s injuries occurred during the course of the accident and the ISV he attributed to each injury proceeded on an assumption not established on the evidence.
Dr Fredrick Phillips – ISV Report ‘Phillip’s Report’
The respondent called one witness, Dr Fredrick Phillips. Dr Phillips is a Consultant Orthopaedic Surgeon. He examined the applicant on 4 July 2019 at the request of QBE Insurance Limited. Following his examination of the applicant, Dr Phillips prepared an ISV Medical Assessment Report dated 13 August 2019. Dr Phillip’s report dated 13 August 2019 was tendered at trial.[16] According to Dr Phillips, the applicant presented with significant non-physiological signs. Taking into account the contemporary history relating to the accident, he was of the opinion that the applicant likely suffered a soft tissue injury to the region of her cervical spine and possibly the right hip. He considered it most likely that the applicant suffered a contusion to the hip, given the nature of the fall and a musculoligamentous strain in the area of the right shoulder and cervical spine.
[16] Exhibit R5.
In Dr Phillip’s opinion, a singular impact as a result of the accident could not have caused the subacromial bursitis in the right shoulder and the osteoarthritis of the hip. Mr Phillip’s opinions were summarised in his report on pages 15 and 16. I set out his opinion for ease of reference:
Diagnosis for each:
The only diagnosis that is feasible that relate for this accident is musculoligamentous strain cervical spine, musculoligamentous strain right shoulder, soft tissue contusion right hip.
Prognosis;
Prognosis is that any possible injuries have fully resolved.
I cannot explain ongoing symptoms on the basis of any injury condition.
Injury stability;
There is no objective evidence of any ongoing injury condition.
Whether the injury is consistent with the stated cause; (please refer to the stated cause contained in the referral letter)
The only injury consistent with the stated cause would be as listed in question 1 (diagnosis).
The effect of the MVA motor accident on any pre-existing injury and the extent to which it has been made worse by the injury;
There is no evidence of an impact on any pre-existing pathology.
The effect of the MVA motor accident on any subsequent injury and the extent to which it has been made worse by the injury;
There has been no subsequent injury.
Whether the assessment was based on AMA 5 or other criteria with detailed reasons;
Assessment was not based on AMA 5 criteria. Presentation was non-physiological.
If relevant the whole person impairment; (please see detail the methology used and calculations, providing relevant references to AMA 5 or other criteria used);
No permanent impairment – minor soft tissue injuries which have resolved.
Dr Phillips also provided his opinion as to the ISV item numbers for the applicant’s multiple injuries, along with an opinion as to the whole person impairment for those items based on his examination of the applicant. I set out, in summary form, his opinion as to the ISV numbers and the whole person impairment percentage for each injury:
1.Cervical spine – ISV number 84 – 0% whole person impairment
2.Right shoulder – ISV number 84 – 0% whole person impairment
3.Right hip – ISV number 123 – 0% whole person impairment
4.Upper back – no injury – ISV not applicable
5.Lower back – no injury – ISV not applicable
6.Upper back – no injury – ISV not applicable.
In terms of the history Dr Phillips obtained by the applicant, relevantly, she told Dr Phillips that her past history in relation to her right shoulder and swelling of the thenar eminence (palm of the hand - base of the thumb) was misinterpreted by her doctor. She denied any prior lower back pain or shoulder pain, or any prior paraesthesia or hand problem.
By way of summary, Dr Phillips’ diagnosis is of muscular ligamentous strain to the cervical spine, right shoulder, and soft tissue contusion to the right hip. In his opinion, these conditions would have resolved after the accident, and he expected symptoms associated with the accident to resolve within two to 12 weeks. However, he expressed the opinion that it was more likely six weeks. In Dr Phillips’ opinion, to the extent that the applicant complains of ongoing injuries to various areas of her body, they are more likely to be attributable to her pre-existing conditions as opposed to anything related to the motor vehicle accident. I accept Dr Phillips’ evidence.
Discussion
As to the shoulder injury in the Bastian report, he gave the shoulder injury ISV item number 92.2 (moderate shoulder injury). However, Dr Bastian conceded during his evidence that the ISV item number would be 93 (minor shoulder injury) if he took into account the pre-accident history. Even on Dr Bastian’s evidence, the applicant has not established, on balance, that she has suffered a ‘Moderate shoulder injury’. Dr Phillips’ opinion was that the injury to the right shoulder was an ISV item number 93 (minor shoulder injury). In that sense, there was no real dispute between Dr Bastian and Dr Phillips regarding the ISV number.
The shoulder x-rays taken on 30 August 2017 revealed evidence of a subacromial bursa in the right shoulder. [17] There was a divergence of opinion between Dr Bastian and Dr Phillips as to the possible cause of the bursa. Dr Bastian said it could have been caused by the accident, but according to Dr Phillips, a single fall from a bike could not cause the bursa in her shoulder. Given that I am satisfied that the applicant had been suffering from ongoing shoulder pain for years prior to the accident, it is more likely than not that her bursa was pre-existing. That would coincide with the persistent pain she suffered and the opinion of Dr Phillips.
[17] Exhibit A13.
As to the neck injury, Dr Bastian gave an ISV item number 83 (moderate cervical spine injury), whereas Dr Phillips gave it ISV number 84 (minor cervical spine injury). As I have already said, Dr Bastian’s opinion failed to take into account the applicant’s long standing pre-existing neck injury. I prefer Dr Phillips’ evidence as to the ISV item number for the neck. I am not satisfied the applicant has established on balance that as a result of the accident, she suffered a moderate cervical spine injury (ISV item number 92).
As to the hip, both Dr Bastian and Dr Phillips agree that the hip should be given ISV number 123 (minor hip injury). As to the hip, Dr Bastian said that whilst the hip injury could have been caused by trauma, hip pain in middle-aged females is very common without any underlying injury. As I have indicated earlier, I am satisfied that the applicant had long-term problems with her hip. X-rays of the hip revealed degenerative changes. The ongoing hip problems are probably due to her pre-existing hip problems, as Dr Phillips said. I accept Dr Phillips’ evidence that the applicant probably suffered a contusion to the hip as a result of the accident, which would likely have resolved in six weeks.
As to the upper and lower back, Dr Phillips concluded there was no injury to those areas. Dr Bastian gave the upper and lower back an ISV item number 89, meaning a minor thoracic or lumbar injury, even though there was no report to him of upper or lower back pain. I prefer Dr Phillips’ opinion. Even if the applicant did have a minor thoracic or lumbar injury, it would make no difference to the conclusion I ultimately reached as to the applicant’s ISV.
Having accepted Dr Phillips’ evidence as to the ISV item numbers applicable in this case, I proceed to provide reasons for the ISV number I attribute to the applicant’s multiple injuries.
I have earlier set out the approach to assessing the ISV for multiple injuries. I am required by regulation 12 first to assess the ISV for the dominant injury.
In this case, I have approached this issue on the basis that the dominant injury is the shoulder injury.
As I have said, an item 93 injury is described as a ‘minor shoulder injury’. Examples of the type of injury that would meet this item number (93) are given in Schedule 1. I set out item number 93 as it appears in Schedule 1:

Item No

Injury  Range

93

Minor shoulder injury

Examples of the injury

     •     Soft tissue injury with considerable pain from which the injured person makes an almost full recovery in less than 18 months

     •     Fracture from which the injured person has made an uncomplicated recovery

     •     Strain injury of the acromioclavicular joint or sternoclavicular joint

0

5

In this case, when I take into account the examples of injuries given for a minor shoulder injury, it includes a soft tissue injury with considerable pain, which the injured person has almost recovered from in less than 18 months. The other examples do not apply in this case.
Based on Dr Phillips’ evidence, which I accept, I am satisfied that the applicant probably suffered a musculoligamentous strain to the shoulder during the accident that would have resolved within 12 weeks (more likely six weeks). In other words, in a much shorter period of time than the example of 18 months to an almost full recovery given in Schedule 1. In assessing the ISV number, I have taken into account the applicant’s pre-existing injury to that area in accordance with regulation 15. In considering the pre-existing condition, I have only had regard to the extent to which the pre-existing condition has been made worse by the accident. In circumstances where the shoulder injury attributable to the accident would have resolved within 12 weeks (as opposed to 18 months given in the example in the Schedule), I would fix an ISV number of 3 for that injury.
I have considered whether the impact of the multiple injuries (hip and neck) justifies an increase in ISV for the dominant injury to reflect the level of impact of the multiple injuries.[18] In circumstances where I consider that any injury caused by the accident would have resolved within 12 weeks (more likely six), I do not think it is necessary to make any adjustment to the ISV I have given for the dominant injury. Therefore, the ISV for the dominant injury remains 3. Even were I to take into account the ISV item number given to the upper and lower back by Dr Bastian, that would not change my view that it unnecessary to make any adjustment to the ISV for the dominant injury.
[18] Regulation 11.
In circumstances where I have assessed the ISV for the shoulder injury as being less than the maximum (ISV - 5), it is not necessary to consider whether the adverse impact of the multiple injuries is so severe that the maximum ISV for the dominant injury (ISV - 5) is inadequate to reflect the level of impact. Even if I were wrong and the ISV for the dominant injury reached the maximum, taking into account that the applicant recovered from her multiple injuries within 12 weeks of the accident, I would not have increased the ISV number above the maximum to reflect the level of impact of the multiple injuries.
For completeness, I have considered whether the right hip injury should be regarded as the dominant injury for the purposes of the ISV evaluation. In Schedule 1, an ISV item no 123, ‘Minor hip injury’, has a range of 0 -10. ISV item number 93, ‘minor shoulder injury’, has an ISV range of 0 - 5. The ISV item number 84, ‘minor cervical spine injury,’ has an ISV range of 0 - 4. In other words, the highest possible ISV range is the Minor hip injury. I have considered s 76(4) and (5) of the CLA, which reads:
(4)The rules that are to apply for the purpose of assessing injury scale values (ISVs) for multiple injuries must include 1 or more provisions that adopt the following principles:
(a)     a court must consider the range of ISVs for the dominant injury of the multiple injuries;
…
(5)In connection with the operation of subsection (4), a dominant injury, in relation to multiple injuries, is—
(a)     subject to paragraph (b)—the injury of the multiple injuries having the highest range; or
(b)     if the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a court assessing an ISV.
On one view, s 76(5) would require me to regard the dominant injury as the hip injury, which has the highest ISV range. That would create an undesirable situation where the least serious injury in terms of the actual ISV for that injury would be regarded as the dominant injury.
I set out ISV item number 123 as it appears in the Schedule:

123

Minor pelvis or hip injury

Examples of the injury

     •     An uncomplicated fracture of 1 or more of the bones of the pelvis or hip that does not require surgery or cause permanent impairment

     •     Undisplaced coccygeal fractures

     •     Undisplaced or healed pubic rami fractures

     •     An injury to the coccyx requiring surgery, that is successful.

0

10

Comment about appropriate level of ISV

     •     An ISV at or near the bottom of the range will be appropriate if there is a soft tissue injury from which the injured person fully recovers

     •     An ISV of not more than 7 will be appropriate if there is whole person impairment for the injury of 5%

     •     An ISV at or near the top of the range will be appropriate if the person has ongoing coccydynia and difficulties with sitting.

In this case, the right hip was assessed as causing 0 % whole body impairment (by both Bastian and Phillips). Consistent with my findings, the hip injury was no more than a contusion, which the applicant fully recovered from within six weeks. Having regard to the comments about the appropriate level of ISV set out above, an ISV at or near the bottom of the range would be appropriate. I would assess the ISV for that injury as 0 or 1.
It would be a perverse outcome if I was required to approach the ISV assessment regarding the hip injury as the dominant injury in circumstances where the actual ISV for that injury is less than the ISV for the shoulder. I do not think that is what is intended. The clear intention is that the injury with the highest ISV number be regarded as the dominant injury. Section 77(5)(b) supports that conclusion. In the end, I do not think it matters in this case. As will be seen, the higher ISV value for the shoulder (which I regard as the dominant injury) makes little difference to the ultimate assessment of damages.
Conclusion
Based on my view that the dominant injury is the shoulder injury, I assess the applicant’s ISV as 3.
PART F: ASSESSMENT OF DAMAGES
Damages for Mental Harm
The applicant claims damages for mental harm. The only evidence in support of her claim was the evidence of Mr Fallo (Psychologist). As I indicated earlier, the evidence of Mr Fallo was based on the applicant’s account that her psychological problems were a result of the accident. Based on my findings as to the applicant’s pre-existing injuries, I am satisfied that the applicant had ongoing problems with anxiety and depression for years prior to the accident. I repeat it is not in dispute that in February 2017, the applicant had applied for a Disability Support Pension on the basis her psychological problems meant that she could not work and would be unlikely to be able to work in the future. I am not satisfied that the applicant has established that she suffered mental harm as a result of the accident. No award for damages will be made for mental harm.
Damages for Non-Economic Loss
Section 52 of the CLA sets out the circumstances in which a court may award damages for non-economic loss arising out of a motor vehicle accident. I set out the relevant parts of the section:
52 – Damages for non-economic loss
(1)Damages may only be awarded for non-economic loss if—
(a)     the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or
(b)     medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.
….
(4)A person who suffers personal injury arising from an MVA motor accident may only be awarded damages for non-economic loss if the injury scale value that applies under subsection (3)(a) in relation to the injury exceeds 10.
(5)However, a court may award damages for non-economic loss in a case that would otherwise be excluded by operation of subsection (4) if satisfied—
(a)     that the consequences of the personal injury with respect to non-economic loss are exceptional when judged by comparison with other cases involving the same injury; and
(b)     that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust.
(6)An assessment of damages for non-economic loss under subsection (5) must be based on an injury scale value that should rarely be more than 25% higher than the injury scale value that applies under subsection (3)(a) in relation to the injury.

As can be seen, an applicant will only be eligible for damages for non-economic loss where the ISV exceeds 10 unless the consequences of the non-economic loss are exceptional (when compared with other cases involving the same injury) and harsh and unjust.
I am not satisfied that the applicant has established on the balance of probabilities that the applicant’s multiple injuries amount to an ISV of 10. I am not satisfied that there is any basis to uplift the number. Given her injuries resolved within 12 weeks (more likely six weeks) the consequences of the loss are not exceptional nor would it be harsh or unjust to not to uplift the ISV.
Based on my findings, the applicant has not established on the balance of probabilities that her injuries justify an ISV number that would qualify her for an award of damages for pain and suffering. There will be no damages awarded for non-economic loss.
Past Economic Loss
The applicant was not working prior to the accident and was in receipt of Centrelink payments. In early 2017 (prior to the accident) the applicant applied for a permanent disability pension on the basis of her mental health. In 2018, citing longstanding health problems pre-dating the accident, the applicant applied again for a Disability Support Pension. I am not satisfied that the applicant would have taken up any employment if it were not for the accident. In my view, the applicant probably has not worked since the accident because of her pre-existing mental health problems and perhaps her pre-existing injuries.
The applicant has not established on the balance of probabilities that she has suffered any past economic loss as a result of injuries suffered during the accident. No damages will be awarded for past economic loss.
Future Economic Loss
A person who suffers personal injury as a result of a motor vehicle accident may only be awarded damages for loss or impairment of future earning capacity if the ISV applicable to the applicant exceeds 7.[19] In circumstances where I am satisfied that the applicant’s ISV is 3, she is not entitled to an award of damages for economic loss unless I am satisfied that the consequences of the personal injury with respect to loss or impairment of future earning capacity are exceptional and the threshold of an ISV exceeding 7 is applied would be harsh and unjust.
[19] Section 56A(2) Civil Liability Act 1936.
I am not so satisfied. In this case, the applicant had not worked since she arrived in Australia in 2014. She had applied for a permanent disability pension in January 2017 (seven months before the accident) based on her protracted mental health problems for which she had been receiving ongoing psychiatric treatment. She made a further application for a permanent disability pension in 2018 and made no mention of having suffered any injury attributable to the accident in relation to her application. The applicant’s pre-existing injuries to her neck, back, shoulder and hip would likely have impacted the applicant’s ability to work in any event. In my view, the accident did not aggravate her pre-existing injuries to an extent that would be compensable.
In circumstances where any inability to work in the future is attributable to pre-existing injuries, and the injuries attributable to the accident had resolved within 12 weeks, the applicant’s injuries cannot be regarded as exceptional, nor would it be harsh and unjust to regard the applicant as excluded from an award of damages by operation of s 56A(2).
The applicant has not established, on balance, an entitlement to an award of damages for future economic loss. No damages will be awarded for future economic loss.
Past Paid/Commercial Care
No evidence was led that the applicant incurred any cost for care or support provided to her in the three months after the accident. No damages will or can be made in those circumstances.
Past Gratuitous Services
Although the applicant claims an award of damages for gratuitous services, no evidence was adduced to show she received any gratuitous services arising from the accident. That really is the end of the matter. However, in addition the applicant is only entitled to damages for past gratuitous services if, amongst other things, her ISV exceeds 10, which it does not.[20] In circumstances, where there is no evidence to support an award of damages for gratuitous services, and her ISV being 3, as assessed by the Court, no award for damages for gratuitous services will be made.
[20] Section 58(4)(a)(i) Civil Liability Act 1936.
Future Care
Because of my finding that the applicant’s injuries resolved within 12 weeks of the accident there is no basis to make an award of damages for future care.
Past Medical Treatment
On the basis that I have found that any injuries as a result of the accident would have resolved within 12 weeks, the applicant would be entitled to $1,136.15 in past medical expenses. Those medical expenses are offset by the payment by the respondent for medical treatment after January 2018 of $4,645.25 on a ‘without prejudice’ basis, for which, in light of my findings, he was not obliged to pay. When the amount paid by the respondent is offset against the applicant’s medical expenses incurred during the 12 weeks after the accident, the entitlement to past medical expenses is zero.
Future Medical Expenses
The applicant had not led any evidence that she requires further medical treatment for any injury arising out of the accident as opposed to treatment for her pre-existing injuries. Further, I have found that her injuries arising out of and attributable to the accident resolved after 12 weeks. No award of damages can be made for future medical expenses in those circumstances.
Interest
In circumstances where there is not a compensable loss to the complainant, then there is no interest payable.
PART D: ORDERS
The applicant’s claim is dismissed.