Stephanie Pasfield v Adam UGARKOVICH and Insurance Australia Limited T/As NRMA Insurance
[2014] ACTSC 10
•5 February 2014
STEPHANIE PASFIELD v ADAM UGARKOVICH AND INSURANCE AUSTRALIA LIMITED T/AS NRMA INSURANCE
[2014] ACTSC 10 (5 February 2014)
DAMAGES – PERSONAL INJURY – motor vehicle collision – whiplash injury to neck and mid-back – injuries to cervical and thoracic spine – reduction in earning capacity – reliability of the plaintiff’s evidence and of histories provided by plaintiff to doctors – resolution of differences of opinion between doctors – no issue of principle.
Bradburn v Great Western Railway Co (1874) LR 10 Exch 1
National Insurance Co of NZ Ltd v Espagne (1961) 105 CLR 569
Griffiths v Kerkemeyer (1977) 139 CLR 161
CSR Limited v Eddy (2005) 226 CLR
Sullivan v Gordon (1999) 47 NSWLR 319
Ramsay v Watson (1961) 108 CLR 642
Daw v Toyworld (NSW) Pty Ltd (2001) NSWCA 25
Evidence Act 1995 (Cth)
Civil Law (Wrongs) Act 2002
No. SC 581of 2011
Master Harper
Supreme Court of the ACT
Date: 5 February 2014
IN THE SUPREME COURT OF THE )
) No. SC 581 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: STEPHANIE PASFIELD
Plaintiff
AND: ADAM UGARKOVICH
First Defendant
INSURANCE AUSTRALIA LIMITED T/AS NRMA INSURANCE
Second Defendant
ORDER
Judge: Master Harper
Date: 5 February 2014
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff against the defendants in the sum of $292,000.00.
the plaintiff’s costs be paid by the defendants.
the order as to costs be stayed for 21 days.
The plaintiff claims damages for personal injury arising from a motor vehicle collision. She was the driver of a car which was struck from behind, in a line of traffic, in Gundaroo Drive, Gungahlin on 9 May 2009. The first defendant ran into the rear of a stationary car behind the plaintiff, at traffic lights, pushing that car into the back of the plaintiff’s car. The second defendant is the insurer of the first defendant’s car. Negligence is admitted.
The plaintiff is a married woman with two young children. She married, and both of her children were born, after the collision. She was born in November 1984 and is now 29.
The plaintiff grew up and went to school in Canberra. She completed year 12. The following year she obtained a Certificate in Business Administration (Legal), which qualified her for employment at firms of solicitors. She worked with a firm in Canberra for about six months, and then moved with her present husband to Queensland where she worked for another firm for about two years. They then returned to Canberra. The plaintiff worked for another year or so in the legal profession, and then joined the Department of Foreign Affairs and Trade as a Commonwealth public servant, early in 2009. She remained in that employment until January 2012 when she applied successfully for a position with the Department of Customs and Border Protection. By the time of trial she was at level APS 3-4, a medium level administrative position.
The plaintiff married in October 2009, some five months after the car accident. Her elder daughter was born in February 2011 and her younger daughter in August 2012, a month before the hearing.
The plaintiff’s oral evidence was that she felt pain in her neck immediately after the accident. She was upset. She went to see a general practitioner, Dr Charlotte Palmer, on the following Monday morning, two days after the accident. She had been sore and stiff over the weekend, and had begun to suffer headaches. The Sunday was Mothers’ Day and she went to a family dinner at a club where she was uncomfortable and did not stay long. She went in to work on the Monday, to see whether she could cope. After a couple of hours sitting at her desk she found that her mid-back, between the shoulder blades, had become painful. She had a burning sensation there. She became tearful, and her supervisor sent her home.
Dr Palmer gave her a certificate for a few days off work, and told her to stay at home and rest. She returned to work on reduced hours, which were gradually increased over time. By trial she was working twenty-six hours a week.
Her evidence was that her back pain seemed to improve while she was pregnant, although her neck pain remained at the same level. When she was not pregnant, her back and neck were as bad as each other. She was again on maternity leave by the time of the trial, and was expecting to return to work in late February 2013.
During the first few months after the car accident, the plaintiff said that she was suffering from neck pain and headaches, with pain between the shoulder blades if she sat or walked for too long. She woke up during the night in discomfort because of her neck and back pain. On occasions she had shooting pains down the right arm. This was more frequent when she was stressed, and in cold weather. She also found that she was nervous when driving her car, watching in her rear-vision mirror when stopped at traffic lights, concerned that she might be struck from behind again.
She said that by the time of trial her neck pain varied. She had good days and bad days. At worst, the pain was ten out of ten, and at best two or three out of ten. When the pain was bad she could barely turn her head to the right. She demonstrated some restriction in rotation to the right in the witness box, and said that her pain at that time was at about six or seven out of ten.
She said that she continued to suffer from headaches every two to three days. The headaches varied in intensity. She had been able to take pain relief medication such as Panadeine Forte, but had to give this up during her pregnancy.
During her first pregnancy she had had about twenty sessions of physiotherapy.
The plaintiff and her husband had bought their own house at Palmerston, and lived there for some years. By the time of the trial they had moved out of that house and rented it to tenants. They were living with the plaintiff’s widowed grandmother at Garran. The plaintiff said in chief that her husband and her grandmother had been helping a lot around the house at Palmerston with things she could not do. She and her husband had decided to move in with the grandmother for extra support. The plaintiff needed help with bed-changing, vacuuming, and putting out washing. They had moved to Garran in October 2011. During the period leading up to the move the plaintiff’s grandmother had come to Palmerston about once a week to help with household tasks.
The plaintiff said that on a typical weekday her husband would leave for his work as a postman at about 6:30 am, coming home after work at between 3:00 pm and 5:00 pm, depending on his volume of work. The grandmother would be at home while the husband was at work, cooking, cleaning and attending to other household responsibilities. The grandmother had a cleaner who came in once a fortnight for an hour to an hour and a half, an arrangement which had been in place prior to the plaintiff and her husband moving in with her. When the plaintiff’s husband got home from work her grandmother would often go out, typically to visit the plaintiff’s mother who had had a baby not long after the plaintiff’s first daughter was born. The plaintiff said that she and her husband shared cooking in the evening.
The plaintiff was cross-examined about her and her husband’s motivation in renting their house out and moving in with their grandmother. She conceded that there had been other benefits. They had wanted to save money. They had put tenants in because they could not meet their mortgage commitments and have the house empty. She was unable to answer whether the move was something they might have done whether she had been injured in the car accident or not. They did not pay any rent to the grandmother but paid a share of the utility bills, and bought their own groceries. The rent left a shortfall of $300.00 a fortnight in mortgage payments. The plaintiff agreed that she had told one of the defendant’s doctors that the arrangement had been put in place so that they could rent the house out and save money toward the purchase of a larger home.
The plaintiff agreed in cross-examination that her wedding in October 2009 had been a major production. The service had been at St Christopher’s Cathedral at Manuka, followed by a reception at the Boathouse on Lake Burley Griffin. Prior to the wedding the plaintiff and her husband had attended dancing lessons, in order to be able to dance a bridal waltz at the reception. The plaintiff had danced to some degree at the reception. The plaintiff said that she had been taking painkillers extensively during the day of the wedding. At that time she was taking Endep, a strong painkiller, as well as Panadeine Forte. Despite this she had been in pain on the wedding day.
The date for the wedding had already been fixed by the time of the car accident, and the dancing lessons had probably commenced a few months before the wedding, though not before the accident.
After the wedding, the plaintiff and her husband went to the United States on honeymoon. They visited Los Angeles, San Diego and Las Vegas. They went to a basketball game, and to Disneyland where the plaintiff went on some of the rides.
The plaintiff agreed that there had been very little damage to the front or rear of her car in the collision. She had been able to drive it afterwards. She had attended a police station on the day of the accident. She had been upset and shaken. The police had given her a form to complete, and told her to take it away and return it within twenty-four hours. She completed it and took it back the next morning.
The plaintiff was again asked to demonstrate, during cross-examination, the degree to which she could rotate her neck in both directions. She demonstrated rotation of 45 degrees to the right, and 80 to 90 degrees to the left (in my estimation and that of counsel, though not measured). She agreed that she was probably capable of rotating her neck further to the right on better days.
She agreed that when shopping, there might have been occasions when she had carried her daughter, and that she might also have carried a handbag and a nappy bag. She had no specific recollection of this but accepted that she might have done so. She also accepted that there had been occasions when she had taken her elder daughter shopping to a supermarket, put her in the baby seat of the trolley, and pushed the trolley around the supermarket. She agreed that she was capable of getting her daughter into and out of the car without assistance on some days.
It was apparent to me from a series of questions asked by counsel for the defendant that his brief included surveillance material showing the plaintiff at shopping centres. The plaintiff generally agreed that she was capable of undertaking the activities put to her during this portion of the cross-examination, and no evidence to contradict any of the plaintiff’s evidence in this regard was called or tendered.
The plaintiff agreed that she had worked before the car accident on a casual basis for David Jones. She continued with this work after the accident, resigning in January 2010. Some of this work was pursuant to a roster, and at other times she would work when asked to do so by telephone.
The plaintiff had taken out a private income protection policy with an insurance company, she thought some years before the car accident. She lodged a claim under the policy after the accident, and received payments from the insurer. The policy was tendered by counsel for the plaintiff. There was a suggestion in an email in evidence from a claims officer with the insurer that the plaintiff might be liable to repay the amounts received out of her damages, but counsel for the plaintiff was unable to point to any condition in the policy having that effect. Both I and counsel for the defendant looked at the terms of the policy and likewise were unable to identify a clause imposing such an obligation. In the circumstances I intend to assess damages on the footing that the plaintiff will not be required to repay any of those benefits to the insurer out of her damages. At law the plaintiff is entitled to the benefit of the insurance payments in addition to her damages, and the defendant does not get any credit in that regard: Bradburn v Great Western Railway Co (1874) LR 10 Exch 1; National Insurance Co of NZ Ltd v Espagne (1961) 105 CLR 569. The law is not entirely clear as to whether the recipient of such insurance benefits must bring them to account when it comes to the calculation of interest on the past components of an award of damages, but in the present case the plaintiff does not seek interest on so much of her loss as is equal to the amount of the benefits received. The issue is discussed by Professor Luntz in Assessment of Damages for Personal Injury and Death, 4th ed, para [11.3.5]. Its resolution will be for another day.
The plaintiff’s evidence was that her payments from the insurer under that policy have been suspended during her maternity leave for the birth of her second daughter, but that the payments might resume when she goes back to work, assuming that she does so part-time.
The plaintiff denied that she had been exaggerating her symptoms, and denied that it suited her not to work because of the benefits under the insurance policy. On the contrary, she said that she enjoyed working and wanted to get back to work.
The plaintiff’s husband gave oral evidence. He was at the time of trial a postal delivery officer, working thirty-eight hours a week for Australia Post. He had been in that employment for more than three years. At the time of the accident he was working at a hardware store in Canberra. He could not recall whether he changed jobs before or after the accident or the wedding. He started work with the post office on 5:00 am on Mondays and at 6:00 am on other weekdays. He was usually home by about 2:00 pm but on some days there were more deliveries to cope with and he might be home as late as 6:00 or even 7:00 pm. There was no average or typical day, and no time where he could be relied upon to be at home.
He and the plaintiff had met some thirteen years before trial, and had been living together for two years or so before their wedding. His evidence was that the plaintiff had been fit, well and healthy before the car accident. On the morning of the accident she telephoned him. He was working at the hardware store, nearby, and attended the scene to comfort her. She was shaken up and tearful. She complained after the accident of neck pain, headaches and mid-back pain. On many occasions he had observed her crying, although not every day.
At the time of the accident they had been living at their own house at Palmerston. They had bought the house in about 2007, and moved in on settlement. The plaintiff’s husband had looked after most of the gardening and maintenance outside the house, while the plaintiff attended to most of the internal housework. The husband said that he had helped a little with dishwashing, but not much else. They had two dogs, and the husband cleaned up after the dogs. There was a large lawn to be mown, in front of the house and behind it.
After the accident he had taken over the vacuuming and had helped with some of the cooking. He had looked after cleaning of the bathroom, with some help from his wife’s grandmother. She had come over to help about once a week, cleaning the bathrooms and putting out the washing.
They had moved in with his wife’s grandmother in about October 2011. He was aware that his grandmother had a cleaner once every two weeks, although this was while he was at work.
There were a number of tasks where he needed to help, including lifting heavy kitchen pots and pans, and lifting the elder daughter out of her cot on to the change table and bathing her. She was about eighteen months old at the time of trial, and walking. She generally went to sleep for the night at about 5:00 pm and slept until about 7:00 am the next morning. He would put her on the change table and change her nappy in the morning, and bathe her every two or three days.
Counsel for the defendant objected to evidence by the plaintiff’s husband of tasks he performed other than by way of looking after the plaintiff herself. For example, he submitted that tasks he performed in looking after the elder daughter were not compensable pursuant to the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161, that principle being limited to tasks performed in looking after the plaintiff herself. Counsel referred to the decision of the High Court of Australia in CSR Limited v Eddy (2005) 226 CLR 1 as authority for the proposition that damages were not recoverable by an injured plaintiff for services provided by another family member (here her husband) for the benefit of others in the family (here her elder daughter).
Whilst that is undoubtedly the position at common law, the legislature has provided otherwise in this Territory. Section 100 of the Civil Law (Wrongs) Act 2002 provides as follows:
100 Damages for loss of capacity to perform domestic services
(1) A person’s liability for an injury suffered by someone else because of wrong includes liability for damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured.
(2) In an action for the recovery of damages mentioned in subsection (1), it does not matter –
(a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or
(b) that the injured person was not paid to perform the services; or
(c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or
(d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not).
(3) In this section:
Wrong means an act or omission (whether or not an offence) –
(a) that gives rise to a liability in tort; or
(b) that amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.
This section predates the decision of the High Court in CSR Limited v Eddy by some years. It had been in ACT legislation prior to the 2002 Act. It was made clear by the High Court in CSR Limited v Eddy that a claim for impairment of the capacity to perform domestic services for other household members is distinct from, and conceptually different to a claim for damages for a need for services which have been provided without charge by family members to the plaintiff. The latter was authorised by the decision of the High Court in Griffiths v Kerkemeyer. The former was for a time thought to have been recognised as part of the common law by the decision of the NSW Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319, but this misapprehension was corrected by the High Court in Eddy, overruling Sullivan v Gordon.
The argument of counsel for the defendant in the present case is not that the plaintiff’s claim for loss of capacity to perform domestic services is not made out on the evidence, but rather that it was not the subject of a claim in the Statement of Claim, or in the Statement of Particulars filed and served on behalf of the plaintiff.
It is undeniable that there was no specific claim under s 100 of the Civil Law (Rules) Act mentioned in the statement of claim. Nor, for that matter, was there any specific claim there set out, for a need for services which had been met by family members. The Statement of Particulars claimed as a disability restricted ability to perform household domestic duties involving cleaning, shopping, cooking, vacuuming and caring for her young daughter. No specific mention was made in the listed disabilities of the fact that those duties had been performed by other family members.
Under the heading “Griffith [sic] v Kerkemeyer” a claim was set out for amounts calculated at $20.00 per hour for specified hours per week for specified periods in the past, with a continuing claim at $25.00 per hour for four hours per week. The claim was expressed on the basis that the plaintiff’s ability to carry out domestic tasks for herself and her daughter had been significantly restricted since the car accident and that she had relied on “the care of her husband Stephen and her family to carry out many of these tasks for her”.
Counsel for the defendant submits that his client has been disadvantaged by the way in which these particulars have been expressed, and that the plaintiff should not be permitted to maintain a section 100 claim, but should be limited to a conventional Griffiths v Kerkemeyer claim.
Whilst there is much to be said for the view that solicitors acting for plaintiffs should differentiate between Griffiths v Kerkemeyer claims and section 100 claims, and should make it clear in pleadings and particulars whether one or the other, or both, of those heads of damage will be relied upon, I am satisfied in the present case that the defendant was put adequately on notice of the nature of the claim made, and was not taken by surprise at trial by the fact that he was confronted by a section 100 claim as well as a conventional Griffiths v Kerkemeyer claim.
During the trial counsel for the defendant objected generally to a line of questioning of the plaintiff’s husband in chief about section 100 matters. I noted the objection and said that I would deal with it at the conclusion of the matter. On reflection it seems to me that the objection is not made out and that the line of questioning, and the resulting evidence, should be admitted.
The evidence of the plaintiff’s husband was that after the accident he spent his Saturdays and Sundays at home, with a lot of his time during weekends being devoted to playing with his elder daughter and taking her out of the house. He also spent time on weekends washing clothes, including bedclothes and baby clothes and hanging them on the clothesline.
In the months before trial following the birth of the second daughter, the plaintiff’s husband said that his mother came over from time to time to the house to help out, usually on Tuesdays and Thursdays.
The plaintiff’s grandmother also gave evidence. She is a widow and was aged 79 at trial. Her evidence was that she did all the heavy work in the house for her granddaughter, including lifting the elder daughter in and out of her cot and high chair, and lifting baskets of clothes. She said that the plaintiff did not do any housework. The grandmother had a cleaner once a fortnight for a couple of hours.
She said that when the plaintiff’s husband came home from work, he would take over the duties such as cooking, washing and feeding the daughter and putting her to bed. She said that as soon as he came home, she went out.
On weekends, the plaintiff’s husband was at home and attended to all of those responsibilities.
The grandmother said that the plaintiff complained about her back and neck, and headaches. Her observation was that the plaintiff’s behaviour was consistent with these complaints.
She confirmed that before the plaintiff and her family had moved into her house at Garran, she had frequently been to their previous home at Palmerston to help, perhaps two or three times a week, mainly looking after the daughter, but also doing some of the housework, for example vacuuming and hanging clothes on the line.
The grandmother was cross-examined extensively as to when, where and by whom she had been asked to give evidence. She said that it had been only a week or so earlier, and she thought that it had been in the course of a conversation in the kitchen at her house, but she could not remember who had asked her or precisely who had been present at the time. Her answers in this area were to my mind somewhat unsatisfactory, but counsel for the defendant did not really challenge her evidence in chief generally, simply submitting in closing address that she should be seen as an unreliable witness. I would not have regarded her in any event as particularly reliable about times or dates, and I bear in mind that she is a close relation of the plaintiff and undoubtedly in the plaintiff’s “camp”. Having said that, I generally accepted her evidence about her observations and her assistance to the plaintiff and her family.
The medical evidence was largely in report form. Only two of the doctors gave oral evidence.
In the plaintiff’s case, reports by Dr Charlotte Palmer (general practitioner), Ms Georgia Tayler (psychologist), Dr Vinh Duc Lieu (general practitioner and acupuncturist), Dr Garth Eaton (occupational physician), Dr Leon Le Leu (also an occupational physician), Mr Jac Cousin (physiotherapist) and Dr Matthew Giblin (orthopaedic surgeon) were tendered in the plaintiff’s case. The plaintiff’s solicitors arranged for her to see Ms Tayler, Dr Le Leu and Dr Giblin. The other practitioners were involved in her treatment, and she was referred to them directly or indirectly through Dr Palmer.
Some of the practitioners took extensive histories from the plaintiff, including complaints of matters she did not refer to in chief. At common law the history taken by a doctor and set out in a report as the basis for the doctor’s opinion was not admissible as evidence of the truth of the history unless proved by other admissible evidence: Ramsay v Watson (1961) 108 CLR 642; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70].
That rule was reversed by s 60 of the Evidence Act 1995 (Cth), now found, although not quite verbatim, in s 60 of the Evidence Act 2011 (ACT). The latter section provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact; and that the section applies whether or not the person who made the representation had personal knowledge of the asserted fact. As a result of that legislative change, a history obtained from a patient and set out in a medical report will generally be evidence of the truth of the history. In the present case, counsel were agreed that I should limit the use of the factual assertions set out by way of history in all of the medical reports tendered on behalf of both parties so that the history was not to be taken as evidence of its truth. The effect of this is that I accept that the plaintiff gave to each of the doctors the history which they recorded, but I do not treat the history as set out in each of the reports as evidence of its truth, but rather as constituting part of the assumptions upon which the practitioner in each case expressed an expert opinion.
This limitation applies only to the medical reports in which the doctors and other professionals have expressed an opinion. It has no application, for example, to Dr Palmer’s clinical notes. The history there recorded, though truncated in typical fashion, is likely to be far more reliable than evidence based on recollection more than three years later.
Dr Palmer is a member of a group practice at Giralang. She initially reported to the solicitor for the plaintiff in July 2009, having seen the plaintiff by that time on six occasions. Her diagnosis at that time was of a whiplash injury affecting the cervical and thoracic spine, with, in addition, an acute stress disorder and features of a reactive depression. Dr Palmer was optimistic that the plaintiff would make a full recovery but could not say how long this might take. She thought that the plaintiff had suffered moderate to severe disability by the time of her report.
She reported again to the solicitors in July 2010. In her opinion the plaintiff continued to suffer from considerable disability. She was fit to work twenty-eight hours a week, which I gather was the period of time she was working by then. She required further treatment.
Dr Palmer prepared a further report to the solicitors in April 2011. She noted that during 2010 the plaintiff had had two early pregnancy miscarriages, followed by a viable pregnancy with delivery in February 2011, with more nausea than would generally be expected, and Caesarean delivery. She thought that the plaintiff might have a tendency for flare-ups in pain, and that her treatment might take three to five years, including physiotherapy and strengthening exercises in a gym setting. On physical examination she found marked tenderness over the C5, C6, C7 and T1 areas of the spine, with complaints of pain at the extremes of movement. She thought that the plaintiff had not yet fully recovered from the whiplash injury to the neck and thoracic spine. In her opinion it was more probable than not that the plaintiff’s disability had been caused by the car accident. She hoped for further improvement in the future, with return to office work and ultimately to full hours.
Dr Palmer reported again to the solicitors for the plaintiff in April 2012. The plaintiff was in her opinion continuing to suffer from neck and thoracic paraspinal pain and stiffness consistent with a whiplash injury. Dr Palmer had been seeing the plaintiff at intervals of one to two months. She had shown little improvement, and there was no longer any prospect that she would be able to increase her working hours in the near to medium term. Her then working hours of twenty-six hours per week were reasonable having regard to her whiplash disorder, and were not affected by her pregnancy. She had reached a plateau with her whiplash symptoms. After the birth of the child with whom she was then pregnant, she might benefit from an intense pain management program with physiotherapy and counselling, over a period of at least a year and perhaps longer.
Dr Lieu, the acupuncturist, reported in January 2010. He said that the plaintiff was still suffering from severe chronic pain, causing significant disability, but that her condition was likely to improve rather than deteriorate. This could take a long time and she might be left with some residual disability. She was in his opinion suffering from a muscular sprain of the neck and thoracic region, with mild associated depression, more probably than not caused by the car accident.
Ms Tayler prepared a report in September 2009. By that time she had seen the plaintiff on three occasions, and had her complete a personality assessment inventory. She found that the plaintiff was suffering from anxiety, irritability and depressed mood, representing significant psychological distress but short of a diagnosable mental health condition. Her prognosis was fairly good.
Mr Cousin prepared a report to the solicitors in July 2011. He had seen the plaintiff on referral from Dr Eaton. Her initial treatment during 2009 had involved 16 attendances for physiotherapy. Mr Cousin had seen the plaintiff on sixteen occasions during 2009. He saw her again in May 2011, following the birth of her first child in February of that year. His opinion was that her condition had not stabilised, and that she might respond to further physiotherapy treatment.
Dr Eaton had been brought into the matter by Dr Palmer as early as 2009. He did not give oral evidence. I had the benefit of three reports by Dr Eaton, from February 2010, May 2011 and November 2011. He noted complaints of neuropathic spinal pain, which I take to have been his diagnosis based on the symptoms on her presentation to him. She complained to him of severe interscapular pain and arm pain, of stress, and of neck pain and headaches. He found restriction of movement in the neck, and allodynia at the base of the neck. In his last report, in November 2011, he referred to findings of restriction of movement in the neck on rotation to the right, which he said was quite marked, to 20 degrees. There was tenderness in the posterior aspect of the neck which he thought might have been related to the facet joints.
Dr Giblin saw the plaintiff on one occasion, in July 2010, for a report to her solicitors. He found that extension of her neck was limited, with a complaint of pain, and that there was pain on rotation of the thoracic spine. He said that she had a right-sided scoliosis, confirmed by an x-ray of the thoracic spine in May 2009. His diagnosis was of a soft-tissue injury to the cervical spine, and an aggravation of the scoliosis of the thoracic spine. The injuries were consistent with the history she had given. He thought that she would need physiotherapy four to six times, twice a year, for the next three years, and would need to continue to see her general practitioner. The scoliosis, he said, had been asymptomatic prior to the accident. She had suffered, in his opinion, as a result of the car accident, a permanent loss of efficient use of the neck of 15%; a permanent loss of efficient use of both arms at and above the elbows of 8%; and a permanent impairment of the thoracic spine of 18%.
Dr Le Leu saw the plaintiff a number of times, and provided four reports: in October 2009, November 2010, July 2011 and March 2012. He gave evidence at the trial in September 2012.
In his first report, shortly before the plaintiff’s wedding, Dr Le Leu expressed the opinion that the plaintiff was suffering from a whiplash injury to the cervical and upper thoracic spine, more probably than not caused by the car accident. He thought that her condition had not stabilised and that she would probably be left with some residual disability. He saw her for the second time when she was five months pregnant. He accepted that she still had neck pain, and thought that she was continuing to recover from the whiplash injury, with a prospect of further improvement. She was unlikely to deteriorate. She needed some help in the house, equivalent to two hours of cleaning a week.
On the third occasion, in 2011, the plaintiff was on maternity leave. She complained of bad headaches at least every second day. It was by then more than three years since the accident, and Dr Le Leu thought that the plaintiff had stabilised. She had been left with a small to moderate residual disability, and would be fit for work on reduced hours for the foreseeable future. It was not apparent that she would ever be able to return to full hours. Dr Le Leu thought it likely that she would probably have to retire, perhaps as much as ten years earlier than the normal age of 65.
The fourth time Dr Le Leu saw the plaintiff was in March 2012. She was pregnant for the second time, and still on maternity leave following the birth of her elder daughter. Since that birth her back pain had improved but her neck, she said, was worse, as were the headaches. She was taking panadeine forte for pain relief as needed. Dr Le Leu took the view that the plaintiff’s condition had stabilised and that she had been left with moderate residual disability.
Dr Le Leu has been in practice as an occupational physician for about twenty years. In his oral evidence he generally adhered to the opinions he had expressed in his reports. He conceded that in the absence of radiological support for injuries to the cervical and thoracic spine he was largely reliant on the history he was given by the plaintiff and her presentation at his rooms.
Counsel for the defendant tendered reports by Dr Nicholas Burke (occupational physician), Dr Doron Samuell (psychiatrist), Dr John Silver (occupational physician) and Dr Fernando Roldan (psychologist). Dr Silver also gave evidence by telephone.
Dr Burke saw the plaintiff in May 2010 at the request of the defendant’s insurer. His diagnosis was of a soft-tissue injury to the cervical spine, and a soft-tissue injury to the thoracic spine. He thought that the plaintiff had already made a reasonable recovery and was well motivated to continue to improve. He thought that she would benefit from attending a multi-disciplinary rehabilitation programme, such as the one conducted by Dr Eaton. He thought that it would be reasonable to provide her with home help for about two hours a week for the next six months. She should, in his opinion, have been able to continue to work full-time and her earning capacity should not be affected for the future. He thought it likely that there was some psychosocial component to her presentation, as identified by Ms Tayler. He noted that she had had ten treatments of acupuncture. He said that the evidence basis to support long-term clinical gains associated with acupuncture was not strong, and that there was little justification for continuing with that mode of treatment. Dr Burke saw the plaintiff less than a year after the car accident, and before her first pregnancy.
Dr Samuell saw the plaintiff in June 2011. In his opinion she was not suffering from any psychological or psychiatric condition requiring treatment or affecting her working capacity, and her prognosis was excellent.
Dr Silver saw the plaintiff in April 2011. He was provided with the medical reports by then available. He saw her about two months after her first baby was born, while she was on maternity leave. He described her as a hesitant, inconsistent and emotionally labile historian. She was in his opinion an anxious and unreliable witness. He placed some reliance in arriving at his opinion on the history she gave him about a pregnancy termination nine years earlier. She said that the history she gave him was inconsistent with contemporaneous clinical notes. I should say that I find it hardly surprising that there was some inconsistency, after so many years. It strikes me that the issue may also have been one which the plaintiff found embarrassing. She was not cross-examined about it.
Dr Silver thought that the plaintiff might well have incurred a minor soft tissue whiplash mechanism injury to the neck. The natural history of such injuries was for resolution within a few days, or at most a week or two, particularly where no abnormality was detected radiologically. He said that the biomechanics of rear end collisions made it almost impossible for a low impact collision to cause any injury to the thoracic spine. The injury had in his opinion been one of minor impact, considering that there had been only minor damage, the car remained driveable and police did not attend the scene.
Dr Silver said that the plaintiff’s presentation was a manifestation of somatisation with significant conscious embellishment, encouraged by the uncritical appraisal of the situation by her general practitioner.
Dr Silver thought that the plaintiff was embellishing her symptoms during his physical examination of her. He said that her neck movements had been jerky and associated with grimacing. The plaintiff complained of neck pain on extension, which was limited, but lateral flexion and rotation to both sides were full range, although the plaintiff complained of pain at the extremes. He noted that the plaintiff moved to the examination couch freely but complained when lying prone of what he described as exquisite tenderness to the gentlest of palpation throughout the entire thoracic spine.
Dr Silver had the benefit of x-rays of the cervical and thoracic spine, and an MRI scan of the thoracic spine, which revealed no abnormality.
There was in Dr Silver’s opinion no evidence of any musculo-skeletal or neurological pathology. He diagnosed a non-organically-based pain syndrome. There was no evidence, he said, that she had any physical injury, and no objective evidence that she could not perform any physical activity she put her mind to. It followed that she did not need any home help. Dr Silver thought that she had “a long-standing issue with psychological/emotional distress” and that this was the basis of her presentation. Interference with her working capacity was associated with her emotional state rather than any physical injury, from which in his opinion she had “sufficiently recovered”.
Dr Silver was asked by the defendant’s solicitors to comment on reports by Dr Eaton and Dr Le Leu, and also on an MRI report in relation to the cervical spine, the scan having been taken in July 2011.
Dr Silver took issue with Dr Eaton’s diagnosis of neuropathic spinal pain. He said that such a diagnosis was one of significant controversy in the medical world, and that the expression was no more than an ill-defined descriptor and not really a diagnosis at all. Dr Silver compared the term with a number of other non-organically-based pain syndromes, including fibromyalgia, irritable bowel syndrome and chronic fatigue syndrome (none of which, I hasten to add, have been suggested in relation to the present plaintiff).
Again in relation to Dr Eaton, Dr Silver told the solicitors that they should be aware that there were many medical practitioners whose practices included working in what could be described as the fringes of mainstream medicine and who develop a reputation for managing so-called functional somatic syndromes. This led such doctors to diagnose conditions which did not exist. Dr Silver included with his report a set of some sixty PowerPoint slides which he had used as the basis for a presentation on functional somatic syndromes.
I had the impression that in responding in this fashion to Dr Eaton’s report, Dr Silver may have been a little upset by a suggestion in that report that there appeared to have been a relapse of the plaintiff’s condition, which the plaintiff blamed on the effects of a physical examination carried out by Dr Silver, although Dr Eaton did not identify Dr Silver by name in his report.
Dr Silver noted that the MRI scan of the plaintiff’s cervical spine in July 2011 had been reported as showing no abnormality, which he did not find surprising.
Dr Silver was also very critical of Dr Le Leu’s third report. He said that Dr Le Leu’s diagnosis of whiplash injury could be discounted, in part because Dr Le Leu had not taken into account the fact that the collision had been a low-impact one, which could have caused only minor muscular soft-tissue injury, and that the natural history of such injuries was for resolution within days or weeks depending on severity, with very little likelihood of long-term musculo-skeletal damage. Dr Silver conceded that he did not have copies of Dr Le Leu’s earlier reports, but he suggested that the solicitors look at the history obtained in those reports to see whether there had been “reality testing of inconsistencies”. It seemed to him that the history in the third report had been, apparently, the product of leading questions. Dr Silver questioned the reliability of the symptoms reported by Dr Le Leu. He thought that his diagnosis was unsubstantiated, as was his opinion that the plaintiff would have to retire perhaps as much as ten years earlier than if it had not been for the car accident.
Dr Silver gave evidence by telephone. He confirmed that he had found no guarding in the neck. He explained that guarding is an involuntary contraction of muscles which protects damaged areas in the spine by stopping them from moving. If there had been significant pathology in her cervical spine, he would have expected to find guarding in the area of the neck muscles or paracervical muscles. The plaintiff’s presentation was to this extent not consistent with the symptoms she complained of.
Dr Silver explained that somatisation is the manifestation of psychological and emotional distress in terms of physical symptoms. Back pain and tension headaches were typical physical symptoms of somatisation.
Dr Silver had been through notes produced by the plaintiff’s previous general practitioners going back for a number of years. These, he said, confirmed a long history of emotional and psychological distress and anxiety, establishing the plaintiff as a person of emotional vulnerability, and in particular vulnerable to somatisation.
However, in addition to this, Dr Silver deduced from the jerky movements displayed by the plaintiff when he examined her that her reactions were deliberately and consciously embellished. He said that somatisation can often be improved by cognitive behaviour therapy, but this was not likely to work where there was deliberate embellishment accompanied by a cost benefit in remaining sick, or maintaining a sick role. Litigation was relevant in this context, because of the potential financial reward. From a psychological point of view this was a perpetuating factor.
In cross-examination, Dr Silver conceded that he was not an orthopaedic surgeon, although he had had some early training in orthopaedics, but he would in general defer to the opinion of an orthopaedic surgeon. However, he would do so only if the surgeon met his criteria as to the way he wrote his report. Dr Silver said that part of his experience was in making critical reviews of medicolegal reports by other doctors, and how much weight could be given to them. He was asked in particular whether he had had the benefit of the report of Dr Giblin when he wrote his first report. He said that he had read it but had not kept a copy of it. He could not remember what Dr Giblin had said, but if his report had not fitted Dr Silver’s requirements of expert witness reports, providing a comprehensive fact-finding exercise with history and examination, a logical chain of reasoning, and a substantiated conclusion, then he would reject it whether Dr Giblin was an orthopaedic surgeon or not.
It was put to Dr Silver that Dr Giblin had expressed the opinion that the plaintiff had suffered an aggravation of scoliosis of the thoracic spine as a result of the car accident. Dr Silver said that he did not find any such abnormality when he examined her, and had not reported any scoliosis.
Dr Silver was then told that an x-ray report of May 2009 had stated that there was a broad-based scoliosis convex to the right in the thoracic spine. Dr Silver said that this would make no difference, because it was highly unlikely, if not impossible, for a low-impact rear-end collision to have caused any damage to the thoracic spine.
In re-examination Dr Silver said that the finding of scoliosis reported by the radiologist might have simply reflected the way the plaintiff was standing when the x-ray was taken.
Dr Roldan, clinical psychologist, saw the plaintiff in July 2012 in Sydney. He took a detailed history, and conducted a number of psychometric tests. He had the benefit of earlier medical reports. He found no evidence of over-reporting of physical or psychological symptoms. He thought it possible that psychological factors including the stress associated with the accident might have caused somatisation. This would have the effect that the plaintiff would perceive pain more intensely and for a longer period than would have been expected. Whether or not this was the case would be a matter for specialised medical opinion.
Whilst he could not entirely discount the possibility that the plaintiff might have been consciously over-reporting her physical symptoms and disability, he found no clinical or psychometric evidence that she was doing so. There might have been a degree of somatisation present. However, there was no evidence of any psychological condition reactive to the accident. The plaintiff did not meet the criteria for a pain disorder, adjustment disorder, stress disorder or any other psychological condition requiring treatment. In Dr Roldan’s view there was no psychological disability and he could not arrive at any psychological diagnosis.
Counsel for the defendant made much of the radiological findings of no abnormality in the cervical spine or thoracic spine. He put to Dr Le Leu that the MRI reports should be seen as preferable to the x-ray reports, MRI technology being more recent and considerably advanced on x-ray technology. Dr Le Leu explained, and I accept, that x-rays remain the best method of “seeing” what is happening with the bone structure in the body, while MRI scans are far better at detecting soft tissue pathology, but are not as effective with bony pathology. Dr Le Leu also explained that although MRI technology is the best and most modern radiological technology now available to the medical profession, that is not to say that it is perfect, or that future developments will not improve considerably upon it.
I am certainly not satisfied simply on the basis of the radiological reports that there is no pathology in the plaintiff’s cervical spine or thoracic spine which might account for symptoms of pain and restriction of movement.
The assessment of damages is greatly affected by my acceptance or otherwise of the plaintiff’s own evidence, and of the complaints she made to the doctors when she saw them. I found the plaintiff to be generally an honest and truthful witness, doing her best to give evidence in accordance with her oath. I am sure that, like most plaintiffs, she had a tendency, perhaps subconscious, to put her best foot forward during her time in the witness box, but I am not satisfied that she exaggerated to other than a minor degree the level of her pain or disabilities. I generally accept her evidence, whilst recognising that she was giving evidence about events of some three years earlier and that her memory of some events was less than perfect.
I generally accepted the evidence of her husband and of her grandmother, both of whom seem to me relatively unsophisticated and honest and genuine people. As to the doctors: I had some reservations about the evidence of Dr Silver. I do not suggest that he was partial to the insurer, certainly not that he might be partial to the party in any dispute on whose behalf he was engaged. I am sure that his evidence was honest and that he genuinely believed that his answers were correct. I thought, however, that he perhaps over-reacted to being criticised by the plaintiff and, as he saw it, by Dr Eaton, as to the way he had conducted his physical examination of the plaintiff, and I thought that that might have affected, probably unconsciously, the slant of his evidence.
I recognise that some doctors are engaged on behalf of defendants because it is thought that their opinion is more likely to favour the defendant’s case, and I suspect that Dr Silver is in that category. Similarly, Dr Le Leu frankly conceded that he is asked to provide medico-legal reports regularly by plaintiffs’ solicitors, and rarely to do so on behalf of insurers or defendants. Again, one suspects that Dr Le Leu is seen as likely to be more favourable to plaintiffs, and perhaps more likely to accept without much scepticism what he is told by a plaintiff.
Dr Silver’s evidence about the unlikelihood if not impossibility of injury to the thoracic spine in a low-impact rear-end collision I found difficult to accept. Dr Silver is after all a medical practitioner and not an expert in the mechanics of motor vehicle collisions. I cannot be satisfied on his evidence alone that the collision in which the plaintiff was injured can properly be classified as a low-impact collision. No doubt some low-speed collisions cause a great deal of damage to one or more of the vehicles involved, whilst higher speed collisions may sometimes cause surprisingly modest damage to the vehicles.
In the absence of any radiological evidence to the contrary, I prefer the opinion of the radiologist (Dr Brendan Cranney) who reported on the May 2009 x-ray of the thoracic spine and expressed the opinion that there was a scoliosis present. I accept Dr Le Leu’s evidence that x-rays are preferable to MRI scans for detecting bony abnormality such as a scoliosis. It seems to me inherently unlikely that a radiologist would report the presence of scoliosis when there was no scoliosis present. It seems to me more likely than not that the plaintiff had pre-existing scoliosis in the thoracic spine and that this made her more vulnerable to injury to that part of her spine causing pain in the mid-back.
The only evidence of an orthopaedic surgeon in the case is the report of Dr Giblin. He accepted that the scoliosis had been present though asymptomatic at the time of the accident. His view was that the injury had caused an aggravation of the scoliosis, and that the plaintiff had suffered a soft-tissue injury to the cervical spine. He saw her only once, in July 2010, but having regard to his expertise I accept his opinion. I note that he is described on his letterhead as a member of the Spine Society Australia, and an orthopaedic surgeon with a special interest in spine surgery. There is no real challenge to the contents of the reports by Ms Tayler, Dr Lieu, Dr Palmer or Mr Cousin, (accept perhaps by Dr Silver as to their gullibility) and I generally accept their opinion evidence.
Dr Eaton seems to be challenged only as to his use of the expression neuropathic pain. He was involved in the plaintiff’s treatment over some period of time. It is unnecessary for me in this case to decide whether or not neuropathic pain is a genuine phenomenon or diagnosis. It is enough to say that I generally accept Dr Eaton’s evidence.
Dr Le Leu was brought into the case by the plaintiff’s solicitors rather than her general practitioner, but he has seen her on a number of occasions and spent quite some time with her, going into the issues in considerable detail. I found his oral evidence persuasive, and I generally accept his opinion.
As to the defendant’s doctors, there is no real disagreement from the plaintiff’s side with Dr Burke, Dr Samuell or Dr Roldan. I accept their report evidence.
This leaves Dr Silver out on something of a limb. The preponderance of the medical evidence is against him, and I prefer the majority opinion where it is inconsistent with the opinion expressed by Dr Silver.
I am satisfied that the plaintiff suffered injuries to the cervical and thoracic spine as claimed, and that she has had, and continues to suffer from, symptoms of pain and restriction of movement in the neck, and pain in the mid-back. I am also satisfied that she has had some psychological consequences by reason of the pain, though not amounting to a psychiatric or even a psychological condition requiring treatment, other than the early sessions with Ms Tayler which I am satisfied were warranted.
I am satisfied that the plaintiff’s condition has reached a plateau, and that she is unlikely to improve much further, whilst at the same time unlikely to deteriorate. She should over time get back to working full normal hours, and in this regard I note that the claim for loss of earning capacity for the future is limited to a range of the order of three to five years, which seems to me appropriate.
This brings me to damages.
Counsel for the plaintiff seeks a figure of $90,000.00 for general damages for pain and suffering and loss of enjoyment of life. Counsel for the defendant did not put any specific figure or range, but submitted that the plaintiff’s figure was too high on the evidence. It seems to me that a fair figure for general damages on the evidence in this case would be $80,000.00, and I award that amount, apportioned equally between past and future. The past component attracts interest. I treat the past component as spread relatively evenly over the period since the accident, perhaps slightly weighted towards the early period. I allow $4,000.00 for interest on that component.
Past treatment expenses were agreed at the time of trial at $10,353.30, of which the insurer had paid about $6,500.00. The plaintiff will have incurred some further expenses since trial. I allow $12,000.00 for past expenses, plus interest on the portion of that paid by the plaintiff of $1,000.00. I allow $8,000.00 for future treatment expenses.
A disproportionate part of the trial focused on the claim for the commercial value of domestic services. I recognise that claims of this kind are inherently vague, general and not suited to precise calculation. Unsurprisingly, the plaintiff and her family did not keep written records of time spent. Times will vary from week to week and even from day to day, and many of the tasks are combined with other tasks which would have been carried out in any event – for example, the cooking, washing up and washing of clothes. It is not appropriate to attempt anything like a mathematical calculation. For the past I allow a rounded sum of $10,000.00, plus interest of $1,500.00. For the future I allow a further $10,000.00.
I generally accept the calculations of counsel for the plaintiff as to past loss of earnings, which were some $61,600.00 to the date of trial, and will have increased since at the rate of about $280.00 net per week. For past loss of earnings I allow $83,000.00. The plaintiff claimed interest on only $30,000.00 of that, giving credit for the insurance incapacity payments, a claim of almost $5,000.00 to trial. I allow $8,000.00 for interest on the past loss of earnings figure.
For future loss of earnings, I adopt a differential figure of $280.00 per week. I note that the claim is for a period of three to five years. I take some account, although limited, of the possibility of early retirement of which Dr Le Leu gave evidence. I allow $60,000.00 for loss of earning capacity for the future.
I allow $8,500.00 for past loss of superannuation benefits, and $6,000.00 for future loss of such benefits. There is no claim for interest on the past component. Neither counsel addressed on this question and I refrain from expressing any opinion about whether interest could be justified on such a claim.
The individual components of the award of damages are as follows:
General Damages $80,000.00
Interest on past component $4,000.00
Past treatment expenses $12,000.00
Interest on expenses paid by plaintiff $1,000.00
Future expenses $8,000.00
Household and other services – past $10,000.00
- Interest thereon $1,500.00
- Future $10,000.00
Loss of earnings – past $83,000.00
- Interest $8,000.00
Loss of earning capacity – future $60,000.00
Loss of superannuation benefits – past $8,500.00
- Future $6,000.00
_________________
$292,000.00
That total seems to me to represent a proper reflection of the effect of the negligence of the first defendant upon the plaintiff. There will be judgement for the plaintiff for $292,000.00. Costs will follow the event. The order is to costs will be stayed for 21 days in case a party wishes to make application for a different order as to costs. Notice of such an application may be made by email, with a copy to the other side. If such notice is received by the Court, the order as to costs will be stayed until further order.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 2014
Counsel for the plaintiff: Mr D I Richards
Solicitors for the plaintiff: Maurice Blackburn Lawyers
Counsel for the defendants: Mr M A McDonogh
Solicitors for the defendants: Sparke Helmore
Date of hearing: 10-13 September 2012
Date of judgment: 5 February 2014
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