Stojceska v Muharemovic - [2017] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STOJCESKA -v- MUHAREMOVIC [2017] WADC 9

CORAM: STAUDE DCJ

HEARD: 3-6 OCTOBER 2016

DELIVERED : 27 JANUARY 2017

FILE NO/S: CIV 647 of 2015

BETWEEN: MONIKA STOJCESKA
Plaintiff
AND
ADIS MUHAREMOVIC
Defendant

Catchwords:

Personal injury - Motor vehicle crash - Liability admitted - Whether alleged injuries in fact caused by crash - Assessment of damages - Turns on own facts

Insurance - Motor Vehicle (Third Party Insurance) Act 1943, s 29 - Failure to give notice of intention to claim as soon as practicable - Whether relief available pursuant to s 29A - Whether Insurance Commission of Western Australia materially prejudiced in its defence

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 29, s 29A

Result:

Section 29A relief granted
Damages for non-pecuniary loss assessed below statutory threshold
Judgment for plaintiff for special damages only

Representation:

Counsel:

Plaintiff: Mr N F Morrissey
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Shine Lawyers
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Hunter v Morris [2000] WASCA 23; (1999) 30 MVR 345
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Morrissey v Nigoscik (1997) 26 MVR 553
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

STAUDE DCJ:

Introduction

The plaintiff was born on 31 January 1993. On 13 March 2012, then aged 19 years, the plaintiff was a passenger in a motor vehicle driven by the defendant which collided head-on with the rear of another vehicle on Walter Road, Morley (the crash). The plaintiff claims damages for injuries alleged to have been sustained in the crash. Liability for negligence is admitted, but injury is denied and the defendant invokes s 29(1) of the Motor Vehicle (Third Party Insurance) Act 1943 as a bar to the action.

Pleadings

The allegation of injury pleaded in par 5 of the statement of claim is as follows:
As a result of the accident, the Plaintiff suffered pain and injury.
PARTICULARS OF INJURY
The Plaintiff sustained, inter alia:
(a)Pain and injury to both knees, precise diagnosis yet to be given.
(b)Pain and injury to both hips, precise diagnosis yet to be given.
(c)Pain and injury to lower back, precise diagnosis yet to be given.
(d)Psychological injury, precise diagnosis yet to be given.
Full and further particulars of which will be provided in the medical reports discovered in the action ('the injuries').
Despite the fact that no issue has been taken by the defendant with the manner of pleading of the plaintiff's alleged injuries, the statement of claim is clearly deficient in this respect. It is inappropriate to plead that the necessary particulars will be provided in the form of medical reports.
In a case where causation is the primary issue affecting the assessment of damages, it is unusual, to say the least, that the action should have progressed to trial without proper particularisation of injury. As the defendant did not take any point in relation to the particulars of injury, nothing turns on the deficient pleading.
Another problem with the pleadings was the failure of the plaintiff to plead in her reply, in answer to the defendant's plea that she was precluded from commencing or maintaining an action by reason of her non‑compliance with s 29(1) of the Motor Vehicle (Third Party Insurance) Act, a claim for relief from non-compliance pursuant to s 29A.
The defence pleaded that the plaintiff did not give notice of her claim to the Insurance Commission of Western Australia (Insurance Commission) as soon as practicable after the crash.
The relevant provisions are as follows:
29.Notice of claim
(1)A person shall not, in respect of the death or bodily injury to a person directly caused by, or by the driving of, an insured or an uninsured motor vehicle by another person which may, under the provisions of this Act, give rise to an action or proceeding for damages against either an insured person or the Commission, commence or maintain such an action or proceeding unless the person proposing to claim the damages or some person on his behalf has given to the Commission, as soon as practicable after the occurrence giving rise to the claim, notice in writing prescribed by the regulations of his intention to make the claim.
…
29A. Court may grant leave to proceed
Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice, or the defect in any notice, or the failure to make due search and inquiry, as required by one or other of those subsections, was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may —
(a)where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.
It is not in dispute that the plaintiff did not notify the Insurance Commission of an intention to claim as soon as practicable after the incident giving rise to the claim. She did not lodge a notice of intention to make a claim until 25 August 2014, or thereabouts, some two years and five months after the crash (exhibit 1, item 30).
The plaintiff's reply filed 30 June 2015 merely pleaded that the defendant 'has not and cannot show any material prejudice in its defence by reason of the alleged delay'. Counsel for the defendant in his outline of opening submissions observed that the only s 29A issue was prejudice, prompting counsel for the plaintiff to submit that it would be the plaintiff's case that there was good reason for her non-compliance. Unsurprisingly, the defendant's counsel argued that it was too late to raise that contention.
It was necessary, but ought not to have been, for the court to point out that if the plaintiff sought relief from the consequences of her failure to give notice pursuant to s 29A, then the facts relied upon should be pleaded.
This resulted in an application being made to amend the reply to add par 3 as follows:
Further in response to paragraph 6 of the defence, the Plaintiff says that she did not lodge a notice of intention to make claim with the Insurance Commission of Western Australia prior to 25 August 2014 because she was hopeful that symptoms from injuries sustained in the motor vehicle accident would improve and she was unaware of an obligation to provide the notice.
The defendant objected to the application for leave to amend in these terms, but did not anticipate any prejudice as a result of the amendment. The defendant did not make any objection to the form of the amendment. Leave to amend was granted.
Where a plaintiff seeks relief from non-compliance with s 29, the plaintiff should plead a claim for such relief pursuant to s 29A. As the defendant has taken no issue with the form of the amended reply, I propose to read into it the requisite application for relief.

Issues

The threshold issue is whether the plaintiff ought to be relieved from the consequence of her non-compliance on the grounds either that her failure was due to mistake, inadvertence or other reasonable cause, or that the Insurance Commission is not materially prejudiced in its defence, or otherwise.
The substantive issue, if the plaintiff is permitted to maintain her claim, is whether she was injured at all in the crash and, if so, to what extent.
At trial the defendant conceded that the plaintiff struck her right knee on the dashboard, but otherwise disputed that she was injured as alleged.

Evidence

Counsel for the plaintiff tendered by consent an agreed book of documents for trial, which was received as exhibit 1. The book contained:
1.Report of Mr Anthony Robinson dated 21 March 2016.
2.Report of Mr Anthony Robinson dated 9 May 2016.
3.Report of Dr Stephen Proud dated 10 June 2015.
4.Report of Dr Stephen Proud dated 22 September 2016.
5.Report of Dr J M Hill dated 3 March 2016.
6.Report of Dr Gemma Edwards-Smith dated 17 February 2016.
7.Duncraig Chiropractic records for various dates.
8.Ellenbrook Physiotherapy records for various dates.
9.Illawarra Medical Centre reports for various dates.
10.Joondalup City Medical Group records dated 29 January 2016.
11.The Heights medical records for various dates.
12.Sir Charles Gairdner Hospital records (volume 1) for various dates.
13.Sir Charles Gairdner Hospital records (volume 2) for various dates.
14.Kingsway Medical Centre records for various dates.
15.Radiology report of Dr A Kumar dated 4 May 2012.
16.Radiology report of Dr Daya Durugiah dated 14 June 2013.
17.Radiology report of Dr M Fallon dated 24 May 2014.
18.Radiology report of Dr R van den Driesen dated 12 February 2016.
19.Radiology report of Dr K Fraser dated 3 May 2016.
20.Payment summaries for 2010 to 2014 (bundle) for various dates.
21.Carmen Jewellers wage summary dated 30 June 2014 to 24 February 2015.
22.TAFE enrolment summary (first semester 2012) dated 28 May 2012.
23.TAFE enrolment summary (second semester 2012) dated 28 May 2015.
24.TAFE summary of student results for 2012 dated 28 May 2015.
25.Edith Cowan University statement of academic record (first semester 2013) dated 2 April 2015.
26.Edith Cowan University statement of academic record (first semester 2014) dated 2 April 2015.
27.Edith Cowan University statement of academic record (second semester 2014) dated 2 April 2015.
28.Police file (redacted) for various dates.
29.Photograph of damaged vehicle, undated.
30.Notice of intention to make a claim dated 25 August 2014.
In the course of the trial further documentary evidence was received:
1.Exhibit 2 – screen capture of 16 pages of the plaintiff's Facebook page.
2.Exhibit 3 – letters from Shine Lawyers to Mr Anthony Robinson
3.Exhibit 4 - report by Mr Tony Robinson dated 27 September 2016.
4.Exhibit 5 – letter from Shine Lawyers to Dr Stephen Proud.
5.Exhibit 6 – 'A guide for people injured in a motor vehicle crash', published by the Insurance Commission of Western Australia.
6.Exhibit 7 – extract of Insurance Commission's claims procedures, May 2012.
7.Exhibit 8 – Insurance Commission's standard form letter to claimant notifying acceptance of claim.
8.Exhibit 9 – reports of Mr Barrie Slinger dated 4 June 2015 and 22 July 2015.
9.Exhibit 10 – extract of notes of GB Physiotherapy.
The plaintiff gave evidence and called Mr Robinson (orthopaedic surgeon), Dr Proud (psychiatrist) and her mother as witnesses. The plaintiff called no practitioner who had actually treated her.
The defendant called Mr Hill (orthopaedic consultant), Dr Edwards‑Smith (psychiatrist) and Mr John Langton (Insurance Commission settlement officer).
No issue was taken by either party with respect to the accuracy of the notes contained in the medical records forming part of exhibit 1. The plaintiff gave evidence to that effect (ts 36). The court inquired of counsel for the plaintiff whether any issue arose as to the weight to be accorded to any of the documentary evidence. None was raised, although it was observed that the report of the attending police officer (exhibit 1, item 29), which indicated that none of the occupants of the vehicles involved in the crash were injured, did not disclose the source of that information.

Personal background

The plaintiff came to Australia with her family from Macedonia at the age of 9. She has one older brother and one younger. At the time of the crash she lived with her parents in Darch. She completed her primary education at Ashdale Primary School. She then went to Wanneroo Senior High School, and later Ballajura Community College where she completed Year 12 in 2010. At school she was engaged in athletics, including running, and dancing.
When she finished high school she did not enrol in further study for a year during which time she did modelling, promotion and marketing work. This included a five-week contract doing promotional work at Sydney International Airport for Pernod Ricard. She also did photographic modelling. In 2012 she enrolled at Central TAFE in mass communications, a film and television course.
Prior to the crash, the plaintiff was a patient of Illawarra Medical Centre (exhibit 1, item 9) and Kingsway Medical Centre (exhibit 1, item 14). The practice records indicate that she was seen at the Illawarra Medical Centre on eight occasions from 8 September 2008 to 9 September 2011 and at Kingsway Medical Centre on 13 January, 25 January and 12 March 2012 (the last occasion being the day before the crash) for health problems apparently unrelated to any musculoskeletal or psychiatric disorder.
The plaintiff said her only pre-crash health problems were asthma and a blood clotting disorder with associated iron deficiency. (There are references in the general practitioner records to von Willebrand's disease.)

The crash

The plaintiff described the crash as follows:
So I was the passenger of a Ford SR6 leaving the cinemas – the Morley cinemas, looking – looking up to see a car that was, that was stopped, indicating to turn right. And noticing that the car that I was in wasn't necessarily slowing down, my first reaction was to scream. And then the next thing that I remember was popcorn being everywhere, the airbag had gone off and I was unable to hear anything. I'd injured my knees on the dashboard. (ts 19)
She said she had 'leant back and then forward and my knees had hit the dashboard'. She said the dashboard was broken.
So I was unable to hear anything. Was very shocked. I had a headache. My knees were very sore. Lower back as well as shoulder and upper, so my back. (ts 20)
She got out of the car and leaned against a letterbox while the defendant dealt with the other driver. She said she was scared, shocked and in pain. She did not recall seeing a police officer.
Included in the plaintiff's book of documents is the attending police officer's report of the crash (exhibit 1, item 28, page 270). The plaintiff is named as a seat-belted occupant of vehicle one. She is reported to have suffered no injury. When asked in cross-examination if she told the police officer she was not injured, she said, 'I'm not sure what to make of this, I don't recall that'. When it was put to her that she did not tell the police officer that she had injured her knees, hip or back, she said 'possibly, however, I was injured and I did look injured' (ts 67).
The defendant's mother picked them up. She did not go home after the crash, but stayed at the defendant's house 'because I was in a great deal of pain in both of my knees'. She said she was not feeling well mentally or physically. The plaintiff said she did not tell her mother about the crash for about two weeks. She did not tell her father because she did not want him to worry, did not want to get into trouble and was scared (ts 58).

Post-crash

The plaintiff said that two weeks after the crash, at the suggestion of a friend, she attended a chiropractor at Duncraig Chiropractic. At that time she said she was having pain in the knees, lower back and neck (ts 23). The records of Duncraig Chiropractic (exhibit 1, item 7) in fact show that the plaintiff attended there on 30 April 2012, some six weeks after the crash. She completed a questionnaire in which she indicated by ticking boxes that she was suffering from headaches, neck and shoulder and low back pain, as well as jaw ache, constantly or frequently. She did not tick the boxes for knee or hip pain.
The plaintiff was referred for X-rays of her cervical, thoracic and lumbosacral spine, pelvis and hips. The X-ray report of Sterling Radiology dated 4 May 2012 (exhibit 1, item 15) is as follows:
Cervical spine:
There is reversal of the usual cervical lordosis with flexion. The atlanto‑axial joint is normal. The cervical vertebral bodies and disc heights are normal. No cervical rib.
Thoracic spine:
There is a thoraco-lumbar scoliosis concave towards the left. The thoracic vertebral bodies and disc heights are all normal. No anomalies.
Lumbo-sacral spine, pelvis and hips:
The lumbar vertebral bodies and disc heights are well maintained. No spondylolisthesis or spondylolysis. The sacroiliac joints, the bony pelvis and hip joints are normal.
The chiropractor was not called. The notes made on 30 April 2012 record a complaint of right hip pain one month before. The notes read, 'Sudden pain in hip while walking, lasted five minutes'. The notes also say 'tension in low back and neck, severe and quick headache and right knee pain'. Below this note is written, 'MVA (Feb 12) – rear ended 50 km/hour – knee hit glovebox'.
The references to right hip and right knee pain on 30 April 2012 are the first documented complaints of any injury to these joints. The chiropractor's notes indicate that the plaintiff attended again on 10 May 2012 and 20 June 2013. (The plaintiff did not say why she attended on the latter occasion.)
The plaintiff said that after seeing the chiropractor she saw her general practitioner on multiple occasions (ts 25). She recalled seeing a physiotherapist also. She then went onto a wait-list at Sir Charles Gairdner Hospital (ts 28).
This evidence revealed a poor memory by the plaintiff of the history of her medical treatment from the date of the crash. She was not in fact referred to Sir Charles Gairdner Hospital in relation to her complaint of left hip pain until 9 October 2013 (exhibit 1, item 12, page 162). She was seen in the Orthopaedic Department on 19 February 2014 (exhibit 1, item 12, page 160). Her difficulty in recalling her own medical history over the previous four years was very obvious and admitted by her (ts 68). I found the plaintiff quite unreliable in this respect.
The documented medical history shows that the plaintiff was seen at Kingsway Medical Centre by Dr Manek Vithal on 21 March 2012. Although this was only eight days afterwards, there is no reference to the crash or any recent injury in the notes (exhibit 1, item 14, page 217). No symptoms of pain were recorded. Dr Vithal's notes indicate that the plaintiff was seen for an unrelated physical condition. It was noted that a 'care plan for psychology' was needed. Dr Vithal noted:
Tired. Cannot concentrate. At uni finds it hard. Exercise urged. Lengthy counselling. Long consults.
No complaints were made of any psychiatric symptoms relating to the crash, in particular eidetic (flashback or nightmare) imagery or anxiety in relation to motor vehicles.
The plaintiff was next seen by Dr Greg Dawson on 10 May 2012. Excluding references to unrelated conditions, the notes indicate that the plaintiff thought she had Attention Deficit Hyperactivity Disorder (ADHD) (exhibit 1, item 14, page 217). She was referred to see Dr P McCarthy, a psychiatrist. The referral letter states (exhibit 1, item 14, page 226):
Thank you for seeing Monika regarding possible ADHD. There is an FH of ADHD and her brother was better on Ritalin. Monika is studying at TAFE and struggles to sit and focus. She has tried some dexamphetamine from a friend and felt much better.

The plaintiff could not recall whether she ever saw Dr McCarthy.
The plaintiff saw Dr Vithal again on 28 May 2012 for an unrelated matter. She was then seen by him on 4 and 7 September 2012. Again, there is no reference in the notes to the crash or any injuries. Rather, the notes of the latter consultation (exhibit 1, item 14, page 219) are as follows:
CERT FROM TAFE 31 AUGUST TO 7 SEPR.
ON MARIJUANA.
HAS STOPPED NOW.
LENGTHY COUNSELLING.
PT HAS RESOLVED TO STOP ALL ILLICIT DRUGS.
The plaintiff was not seen again at Kingsway Medical Centre until she saw Dr Daniel Sacoor on 25 March 2013 when the following notes were recorded:
Severe anxiety and stress since starting in year 1 at ECU last month.
Performing well w/uni studies, but feeling overwhelmed by combination of home stress, uni assignments.
Making new university friends, but 'cutting off' from old friends who do not share her life goals.
Has cancelled Facebook page, changed mobile number.
No evidence of low mood, anhedonia, or suicidal ideation.
Used marijuana in past, nil now.
Has made appointment to see ECU student counsellor this week.
Assessment: stress +++ w/anxiety.
Plan: very long discussion +++ re anxiety, stress, depression, stress reduction techniques, role of psychology. (exhibit 1, item 14, page 219)
Serepax was prescribed. By this time, the plaintiff had enrolled in a university preparation course at Edith Cowan University (ECU). She did five units, failing one that she had to re-sit (exhibit 1, item 25).
On 2 May 2013 Dr Vithal prescribed temazepam for sleep disturbance. On 6 May 2013 Dr Vithal noted that the plaintiff had been unwell for one day and could not finish an assignment. A medical certificate was issued for that day. No reason is apparent. On 23 May 2013 Dr Vithal recorded that the plaintiff was anxious about exams and could not sleep. She was prescribed Mogadon and Serepax.
On 6 June 2013 the plaintiff consulted Dr Rasika Perera at The Heights Medical Centre. In addition to an unrelated complaint, the plaintiff reported left inguinal region discomfort and was provisionally diagnosed with an inguinal hernia. She was referred for an ultrasound which confirmed the diagnosis (exhibit 1, item 16, page 238):
Moderate reducible indirect inguinal hernia on the left, the contents of which is [sic] bowel and fat.
On 27 June 2013 the plaintiff consulted Dr Perera complaining of a sore throat and feeling unwell. On that occasion Dr Perera noted that the plaintiff was 'doing lots of weights/ag exercises' (exhibit 1, item 11, page 142).
Notes of a consultation with Dr Faisal Bhajikahra on 4 July 2013 indicate the plaintiff had an appointment to see a surgeon the following Monday. She was in pain and was prescribed Tramadol and Serepax. She was also advised with respect to disc care in the context of her left‑sided hernia. (I take this to be a reference to her spine.)
In evidence, the plaintiff described her pain at the time of her hernia diagnosis as being in her groin, lower hips, lower back and pelvis (ts 33). The plaintiff said that she saw a specialist in relation to her suspected left inguinal hernia and was advised that she did not have one.
Three months later, on 9 October 2013, the plaintiff returned to Illawara Medical Centre where she saw Dr Cuong Danh (exhibit 1, item 11, page 58). Among a number of matters raised, Dr Danh noted that the plaintiff was 'also concerned about her hips; the left was higher than the right and was causing pain on walking and clicking'. At that point she was referred to Sir Charles Gairdner Hospital.
This consultation is significant because it represents the first occasion on which the plaintiff made a specific complaint of left hip pain to a medical practitioner.
The next consultation on 15 October 2013, this time with Dr Yvette Bruce, is also significant because the symptoms complained of prompted Dr Bruce to write a GP mental health care plan and to refer the plaintiff to a psychologist. The notes read:
Psychiatric: Normal sleep. Early morning waking. Normal self-esteem. Depressed mood. Not anxious. Stressed work. Relationship problem. Financial problems. No recent bereavement. Irritability. Irrational fears. No panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicide attempts. No substance abuse.
The plaintiff was seen for other matters on 7 November 2013, 27 November 2013 and 13 January 2014.
On the last occasion, as well as an unrelated complaint, the plaintiff reported bilateral lower back discomfort on waking which resolved within 30 minutes. She was exercising daily doing weights five times per week. There was no pain on exercise or movement. Examination of the lumbar spine revealed no bony tenderness. There was a normal range of movement and normal gait.
On 31 January 2014 the plaintiff was seen by Dr Dilshad Dahliwal. She complained of left hip pain on movement and at rest. There was no night pain. There was no analgesia required. The notes say:
Often have to do many stretches and physio exercises. Been to chiro in past but no help.
The examination notes state that the hip looked normal. There was pain on flexion, but no pain with internal or external rotation, no paraesthesia and no weakness. Dr Dahliwal referred the plaintiff for an X-ray and ultrasound of the left hip.
The plaintiff was seen by Dr Kate Jameson on 14 February 2014. In addition to an unrelated complaint, the plaintiff again reported on this occasion a painful right hip. Dr Jameson recorded:
Anterior hip pain worse following activity. Goes to gym x 5 a week, weights and cycling. ?bursitis ?labral tear.
The plaintiff was seen by Dr Jameson for unrelated matters on 18 February 2014. There was no note of any hip symptoms.
On the following day, however, the plaintiff was seen at Sir Charles Gairdner Hospital Orthopaedic Outpatient department. Ms Kate Allen, physiotherapist, made a report dated 19 February 2014 which reads in part (exhibit 1, item 9, page 75):
A 21-year-old lady presents with a two-year history of left groin pain and right clicking hip on walking. These hip symptoms have been occurring intermittently over the past two years after having a car accident whereby both knees were on the dashboard and there was significant damage to the dashboard but no fracture or management after the car accident. To date she has had no physiotherapy or injection. The left hip is aggravated by sitting for ten minutes, lying on her back, right and left side. Right hip clicks on extension phase of walking on a regular basis. Also reports some intermittent right-sided buttock and sacroiliac pain. She feels that the legs are a different length. There is significant hip pain in the morning and unable to with difficulty weight bearing throughout the day [sic]. The right hip pain is pretty much nearly constant in nature. At night there is significant difficulty in getting to sleep. Does not disturb sleep but if wakes for another reason will have difficulty getting back to sleep.
PMHx: Healthy lady does a lot of exercise, cardio, weight training, stretching. Non-smoker, no asthma. A blood disorder on Wilibrans [sic] whereby she is allergic to antibiotics. Currently not taking any medications for pain.
Objectively on stance phase left anterior superior spine sits anterior with shifting up of the left posterior superior iliac spine. On walking there is an audible click of the right hip on hip extension. Normal squat. Grade 5 muscle strength around the lower limb. Any resistance to the left leg produces the groin pain. Range of movement of the hip very mobile full range of movement. Left hip reproduces groin pain end of range flexion end of range abduction end of range internal rotation on compression through the joint. There is a 1 cm leg length discrepancy with the right leg being longer. There is full lumbar range of movement and tenderness on palpitation of the right facet joint and para-spinal musculature from L2/3 down through to S1. X-ray in clinic was essentially normal.
An x-ray report of the same date indicated that the pelvic ring was unremarkable, the sacroiliac joints normal, the lumbosacral junction unremarkable and both femoral heads normally located and unremarkable.
Dr Jameson saw her again on 24 February 2014 for other matters. There was no mention of any hip pain or other orthopaedic symptoms.
Then, on 11 April 2014, the plaintiff saw Dr Kelvin Balakrishnan who made the following notes:
Allegedly assaulted 22:25 5/4/14 at Mathisse beach club Scarborough.
PT went to speak to male; and then he kicked patient in stomach.
Says was unprovoked.
Police called; PT planning to put in report.
Pain felt in abdomen immediately 10/10. Nausea and vomiting x 3 following.
Next day vomited 1x.
Diarrhoea first few days. Now settled.
Lower abdomen currently 7/10.
Pain is not settling. Remains stable.
Unable to exercise.
Pain going up/down hills. No nausea or vomiting at present. Urinary pains initially. Better now. No fevers. Nil PV loss.
The notes otherwise indicate that the plaintiff was able to walk. She had some pain, but no bruising. She was referred for an abdominal ultrasound.
Three days later, on 14 April 2014 at Sir Charles Gairdner Hospital the plaintiff reported right buttock pain and left groin pain associated with clicking, locking and giving way, dating from the crash. There is no note of any complaint of knee or spinal pain. There was no abnormality detected in those areas.
Dr Danh noted on 13 May 2014 that the plaintiff was complaining of pain. He prescribed Tramadol and Lyrica.
An MRI of the left hip was reported on 24 May 2014 (exhibit 1, item12, page 152) as showing an anterosuperior quadrant labral tear without evidence of an associated para-labral cyst or accelerated hip joint degenerative change and mild trochanteric bursal thickening and oedema without evidence of a bursal effusion.
Dr Jameson saw the plaintiff on 23 June 2014 in relation to unrelated matters. There was no reference to any injury alleged to have been sustained in the crash.
On 16 July 2014 Dr Bruce noted:
MRI of lumbar spine shows cartilage tear to left hip.
When walking compensates.
On a waiting list for surgical repair.
PT has seen many doctors related to her injury.
Recently stopped taking Zaldiar.
Taking Lyrica 75 mg OD.
To increase to two NOCT.
The plaintiff saw Dr Bruce on 15 August 2014. She complained of pain in her hip and medication was again prescribed.
The plaintiff was also a patient of the Joondalup Medical Centre. There is evidence of three consultations in 2007 related to cosmetic surgery. On 29 August 2014 the plaintiff complained to Dr Steven Howard of flu-like symptoms. Then on 26 September 2014 the plaintiff saw Dr Kyriaki Rafalia complaining of matters unrelated to injury.
The Illawarra Medical Centre notes include a report by a doctor from the Australian Locum Medical Service dated 2 November 2014 (exhibit 1, item 9, page 77). The plaintiff presented that day with anxiety and sleep disturbance. The history was that she had been feeling tired and stressed due to work, business and study commitments. She had been working or studying for the last 11 months, seven days a week. There were no other complaints. The doctor's impression was that the plaintiff had overworked. Anaemia was suspected as a cause for tiredness. A medical certificate was given for two days.
On 20 November 2014 she saw Dr Stuart Livingston complaining of recurrent pain causing lack of sleep. The plaintiff required certification for the deferral of an exam. The notes record a history of a traffic accident two years before with damage to the low back and hips.
Then on 11 December 2014 the plaintiff saw Dr Livingston again. He noted:
Currently studying for degree. Has own business. Recently in abusive relationship – 6 months. Now has restraining order on ex-partner. Was subject to prolonged emotional and physical abuse, tied up, hair pulled out and beaten. Now feels tired and anxious. Not functioning. Worried re effect on exam results. Discussed options, agreed counselling would be most helpful at this time, feels she has lost her direction.
A referral was made to a psychologist, Ms Ana Santos, who reported to Dr Livingston on 27 January 2015 setting out a GP mental health treatment plan. The plaintiff's psychological symptoms were attributed to a violent relationship. Ten sessions of psychotherapy were recommended.
On 5 January 2015 the plaintiff consulted Dr Rafalia requesting more pain relief for her hip symptoms. On that occasion the plaintiff complained of episodes of shortness of breath and palpitations which related to an abusive relationship. Propranolol was prescribed for anxiety. The plaintiff was seen again by Dr Rafalia on 6 January 2015 and 20 January 2015.
She then saw Dr Livingston on 4 February 2015 in relation to her back and hips. She had failed to attend for a hip fluoroscopy. Dr Livingston noted at that time that the plaintiff was attending a psychologist. Antidepressant medication was discussed. A restraining order had not yet been served on her ex-partner.
On 23 February 2015 Dr Iain Russell saw the plaintiff in relation to her hip pain and prescribed medication.
A report dated 15 March 2015 from the Department of Orthopaedic Surgery at Sir Charles Gairdner Hospital recommended an arthroscopy, a possible debridement and chondroplasty. When seen the plaintiff was 'quite sore bilaterally with her left hip slightly worse than right'.
Then on 23 March 2015 the plaintiff saw Dr Howard. She was frustrated by a lack of sleep and was requiring medication. On 30 March 2015 the plaintiff saw Dr Howard again. She complained of continuing left hip pain and was stressed by the effect on her activities of daily living, studying at university and conducting two businesses. She was kept awake at night. Dr Howard recommended an increase in analgesia.
On 14 April 2015 the plaintiff saw Dr Rafalia requesting a further script for Panadol. Possible drug addiction and side effects were discussed. It was noted that the plaintiff was not happy to continue to take medication, but needed it for her pain.
On 24 April 2015 the plaintiff saw Dr Rafalia again, but for other matters.
The plaintiff consulted Dr Howard on 4 May 2015. He noted:
Has been missing uni assignments, going to drop out of semester.
Tramadol (Zaldiar) has been making her feel sleepy/dozy.
Still same ongoing lower back bilat aching pain.
Still awaiting back op, waiting to hear from SCGH.
Not taking any other analgesia, advised Panadol/NSAID.
Needs letter for uni, done.
On 27 May 2015 the plaintiff saw Dr Rafalia for tonsillitis. It was noted that she was under Dr Fitch for her bilateral hip pain.
On 4 June 2015 the plaintiff saw Dr Kathryn Mellanby in relation to tonsillitis and, 'all over body ache in hips and joints from pain'. Celebrex was prescribed and a medical certificate given with respect to university work.
Dr Mellanby saw the plaintiff again on 18 June 2015. The notes state:
Seen an insurance psychiatrist this week who suggested she had PTSD – nightmares, flashbacks, panic attacks, poor functioning, anxiety – since MVA in 2013.
Quite a shock to her.
On W/L for hip op at SCGH.
Pain terrible.
Meditates and yoga.
Feels physio/ex physio could help her.
Mental health plan.
Referred to psychology.
Could benefit from AD's? Mirtazapine? Duloxetine.
A further GP mental health plan was made. Dr Mellanby saw the plaintiff again on 6 August 2015 and 20 August 2015.
The plaintiff was admitted for surgery on 2 September 2015. Her complaints on admission were of pain in her left hip right, lower back, shoulders, both knees, and both wrists. The operation report notes that there was debridement of the labral tear and inflamed synovium. She was certified unfit from 2 to 17 September 2015. She was discharged on 3 September 2015.
On 9 September 2015 she saw Dr Russell who noted:
Had labral tear repaired one week ago and very happy with the result, most of her pain has gone, can walk well.
Thinks she is fit to work, party store and at uni.
Wants to go back to work.
Depression a lot better.
Has some breathing problems, has mild asthma.
On examination she had good mobility with no restriction.
On 21 September 2015 the plaintiff saw Dr Colin Singer complaining of stress at work and university. A letter was issued to her tutor. The plaintiff reported that her hip felt better, but could get painful if she was on her feet all day.
On 8 October 2015 Dr Rafalia noted that the plaintiff had a hip operation two weeks before. She was able to move her hip freely.
On 16 and 23 September 2015 the plaintiff attended Ellenbrook Physiotherapy (exhibit 1, item 8).
On 23 October 2015 the plaintiff complained to Dr Paul Collin of neck pain following a motor vehicle accident two years before. A medical certificate was issued and the plaintiff referred to physiotherapy.
On 6 November 2015 the plaintiff reported to Dr Rafalia that she was sick with nausea and diarrhoea. Viral gastroenteritis was noted. A medical certificate was issued.
On 19 January 2016 the plaintiff saw Dr Rafalia for matters unrelated to the injury.
On 12 February 2016 the plaintiff underwent MRI scanning of the right hip and lumbar spine. The MRI of the right hip was obtained in order to exclude a labral tear or neural impingement. It was reported as showing 'no definite cause for symptoms identified at the right hip joint'. The MRI of the lumbar spine showed a mild lumbar scoliosis convex to the left. The report indicated early facet arthropathy at a number of levels on a background of a mild lumbar scoliosis. There was no focal disc protrusion or canal stenosis, foraminal narrowing or neural impingement. No cause for radiculopathy was demonstrated. There was no evidence of myelopathy.
On 3 May 2016 at the request of Mr Robinson, the plaintiff underwent a CT scan of the patellofemoral joints of her knees. The scans were reported as follows:
Right tibial tubercle lateralisation but all other measurements are unremarkable with no patella maltracking.
Exhibit 10 is an extract of notes of GB Physiotherapy dated 16 July 2016. Under the heading 'Subjective' the notes read:
Patient returns with the report of left hip pain after 18 months of pain, requiring repair of labrum and ?osteotomy about six months. Now reports left buttock with prolonged sitting, standing, walking. Now reports constant pain. Prior to operation had same pain but worst in anterior hip as constant deep ache.
Post-surgery minimal physio.
Also C/O right periscap pain related to MVA.
Also reports R knee pain related to MVA – getting surgical review within next few weeks.
Dr Mellanby.
Related to MVA as passenger with forced hip flexion against dash – DOI April 2013.
The plaintiff's evidence was that prior to the operation on her left hip she could not lift her left leg. Following the operation she was able to do so, but she still experienced pain in the left groin. She had pain also in her right knee, but she was able to move her right leg. She experienced right lower back pain and occasional right groin/hip pain.
Following the operation she experienced low back pain, knee pain and hip discomfort. She received physiotherapy on a health care plan. She had also had physiotherapy treatment for which she had paid herself. She said the physiotherapy had been effective 'to a degree for a short period of time'.

Symptoms at time of trial

At the time of giving evidence the plaintiff said she had left hip pain which she described as a tingling, numb sensation travelling down her left leg from the buttock. She did not feel a burning sensation as she had before. Pain was aggravated by walking, kneeling, bending, 'just absolutely anything'.
Her right hip was similar. She had a numb pain in her low back and right leg. Movements were stiff and uncomfortable. She had noticed that her knees would lock up or be out of alignment, so that she was not able to put her weight evenly on both legs. She said (ts 54):
So having that happen, you're sort of stuck and even if it doesn't fully lock at times, I'm always having trouble with the mobility of extending my leg and even having my leg relax due to the quad muscle just being damaged from the injury also and just having this part of your body damaged I think is very immobilising because you can't walk.

She was wearing what she described as knee braces that she understood kept her knees in alignment. By way of treatment she was having hydrotherapy, physiotherapy, massage and acupuncture.
She explained her mental symptoms as follows (ts 56):
Very sensitive of watching or hearing about car accidents or things that … involve seeing any injuries or anyone injured. [I've] lost confidence, I'm scared, I've been very scared, I'm still scared. I'm mentally drained. I feel inadequate to be able to do the things that I need to do with work or to study. I don't go out with my friends, I don't do the things I'm passionate about.
The plaintiff said that she was seeing a psychologist, but not frequently enough. Her psychologist had relocated, so it took her an extra 15 to 20 minutes to get there.
She said her studies were affected as she had trouble attending class or sitting in class. She had trouble carrying her books and concentrating. She had difficulty sitting due to pain. She said she had to defer most of her assignments and some of her exams. In the previous semester she had failed four of five units in which she enrolled. She said she was required to do an eight-minute video on international business. She had done research, but was unable to sit for eight minutes to record the presentation. She said she felt like she had a nervous breakdown. She said she was not even able to open a sliding door to get fresh air.

Work and study history

At the date of the crash the plaintiff was enrolled in a Diploma of Mass Communication course at TAFE. She said she had difficulty doing the course because she was in severe pain. She also said that she discontinued her studies mid-year. Her 2012 enrolment records indicate that the plaintiff was enrolled in 12 modules in the first semester and eight modules in the second.
The plaintiff said she then enrolled in a university preparation course at Edith Cowan University. She started the course in 2013 and completed it in February 2014. The statement of academic record (exhibit 1, item 25, P261) indicates that the plaintiff completed five units of which she had to repeat one. She then enrolled in a Bachelor of Marketing, Advertising and Public Relations course. Her results show that she did four units in the first semester of 2014, resulted as two credits, a pass, and a fail. In the second semester of 2014 the plaintiff was enrolled in a Bachelor of Business course. She did four units earning one credit and three passes. She was given exemptions in respect of three units. No other evidence of her academic record was tendered.
The plaintiff gave evidence that she commenced a marketing business in 2011 called Executive Marketing that she described as 'going hand in hand with my modelling'. It involved 'organising promotional models at venues, or doing websites, graphic design, meeting clients and organising marketing strategies and business development type strategies' (ts 15). The business was still operating, but she had had only one job in the last six months.
She also said that she had set up an online clothing business in 2015 called Bas Clothing from which she had made $2,000 - $2,500 (ts 16).
In 2012 she worked for a promotional agency doing occasional jobs, as well as a modelling agency. She had also worked in numerous retail jobs including at Carmen's Jewellers in Morley. She said she ceased working there after Christmas 2014 because she was late to her shifts on multiple occasions. She also said that she had some trouble standing. She had also worked at Zamel's in 2015 and Tarocash. She worked for four to six months at Carmen's, four weeks at Zamel's and four to six weeks at Tarocash.
She also worked for Big W in 2015 for a month and a half. She said that she stopped working because she had physical difficulty in performing simple duties, being required to bend and stand. In addition, she did one day's work at Duckstein Brewery.
She had applied in 2016 for jobs in marketing, business development, telecommunications and retail. The plaintiff was shown a number of documents relating to her job applications. Those documents were not tendered. There was no suggestion in the evidence that the plaintiff was not capable of doing the jobs for which she applied. There was no evidence that she failed to succeed in any of her applications due to her alleged injuries.

Credibility

When the plaintiff was cross-examined she was asked whether she could remember what she told her doctors of her symptoms from time to time. She said she could not, but that she would have told them how she was feeling on the day (ts 68). She was satisfied that all records of her medical attendances had been produced.
She accepted that when she saw Dr Manek Vithal on 21 March 2012 she made no complaint of injury from the crash. She also accepted that when saw Dr Joshua Timms at Duncraig Chiropractic on 30 April she did not indicate in her proforma that she had hip pain or leg pain. She accepted that the chiropractor's note of 'right hip pain one month ago' recorded what she told him. She agreed that the notes correctly recorded that she had right hip pain while walking which lasted five minutes, tension in the low back and neck and headaches. She accepted that the motor vehicle accident referred to in the notes was the crash in March. She agreed that she told the chiropractor that her right knee hit the glovebox.
She agreed that when she saw Dr Greg Dawson on 10 May 2012 she provided the history recorded in his notes. There was no reference to the crash. She agreed that there was no mention of the crash recorded by Dr Daniel Sacoor on 25 March 2013, the notes indicating a history of anxiety and stress since starting at ECU.
Nevertheless, the plaintiff maintained that a lot of her issues at that time were related to the crash and that she had visited the doctor to talk about some of the side effects from it. She maintained that the matters recorded in the notes were indirectly related to the motor vehicle accident. When it was put to her that she made no mention of the motor vehicle crash at that time she said she was not sure. There were no symptoms recorded that corresponded to the symptoms of post-traumatic stress disorder (PTSD) later observed by Dr Proud.
She agreed that when she complained of groin pain to Dr Perera on 6 June 2013 she did not make any mention of a motor vehicle crash.
As I have previously observed, there is no record of any report of symptoms in her left hip until 9 October 2013 and no attribution of them to the crash until the plaintiff was seen at Sir Charles Gairdner Hospital in February 2014.
I also find that during the three years from the crash to Dr Proud's examination on 10 June 2015, there is not reference to the crash in any of the records of psychiatric and psychological symptoms made by the general practitioners.
Significantly, a GP mental health care plan was made by Dr Bruce on 15 October 2013 in the context of depressed mood relating to financial, work and relationship stress, another by Dr Livingstone on 11 December 2014 which indicated post-traumatic stress disorder as a diagnosis of symptoms resulting from prolonged emotional and physical abuse by an ex‑partner against whom the plaintiff had obtained a restraining order (exhibit 1, item 10, page 136). Neither practitioner recorded any notes relating the plaintiff's psychiatric symptoms to the crash. These records are notably inconsistent with the plaintiff's evidence and the history given to Dr Proud and Dr Edwards-Smith.
The plaintiff was also cross‑examined in relation to the information she gave to Dr Proud. She admitted that she was not a 'straight A' student as he reported, but she said that she did not mean to mislead Dr Proud in any way. She said it was irrelevant.
She also admitted that she told Dr Proud that apart from having ADHD as a child, she had no other psychiatric problems or trauma in the past. She agreed that statement was not true and that she had, in fact, two mental health care plans prepared by general practitioners prior to seeing Dr Proud. She agreed she had in fact been diagnosed with depression and anxiety. The plaintiff accepted that her brother had suffered from depression. Dr Proud's report indicates no family history of psychiatric illness.
She was also challenged with respect to her history of being socially withdrawn in June 2015 when she saw Dr Proud. She maintained that she was, and that she could barely walk. She was then questioned with respect to her Facebook page (exhibit 2). She agreed that on 28 October 2014 she had models doing Melbourne Cup day parades at several venues in Perth. The plaintiff said that she was unable to do modelling, but enjoyed organising such events. She was otherwise cross‑examined as to pictures and conversations on her Facebook page which counsel suggested were inconsistent with social withdrawal. For example, on 21 September 2015 she posted the following entry:
I am blessed with the best family and friends in the world. My operation went better than expected. I will be back on my feet in no time. The doctors and nurses at Charles Gairdner were so kind and took immense care of me. Excited to be back at work and have big plans coming up …
On 20 September 2015 she posted a profile picture of herself wearing high heels. She was cross-examined as to why she represented herself on Facebook to be 5 feet 7 inches, when she was in fact 5 feet 2 inches (158 cm) tall. She said she gave her height in high heels. It is a small point, but it is consistent with other evidence of untruthfulness.
On 11 November 2015 she posted:
People say 'you're so lucky, you can do whatever you want', not realising I work 7 days a week every week whilst studying a double major full‑time. You can't expect to create the life you want and achieve results sitting on your bum.
The plaintiff was also cross-examined on various references in the medical records of her attending a gym. She agreed that she had had a number of gym memberships (ts 85).
On 13 January 2014 Dr Jasmine Mrsa had recorded:
2.Bilat lower back discomfort on waking, self-resolves within 30 minutes
Exercises daily, weight five times per week
Nil pain on exercise or movement
When these notes were put to her, the plaintiff denied that she was exercising daily and doing weights five times per week and denied telling Dr Mrsa that she did. When pressed, however, she said she was doing very light upper body weight training and daily yoga exercises. She did not recall telling Dr Mrsa that the only low back pain she had was on waking and that she had no pain with exercise or movement.
On 14 February 2014 Dr Kate Jameson recorded: 'Goes to the gym x 5 a week, weights and cycling'. The plaintiff was asked whether she gave that history. Her answer was evasive. She said (ts 85):
I was exercising. I was doing yoga exercises, yes, every day, not just five times a week, I was doing it every day.
She suggested that the doctor was mistaken and said that she was doing most of her exercises at home. She agreed, however, that she was a member of a gym at that time. She would not concede that she was attending five times a week and doing weights.
When it was put to her that there were two references in the GP notes within a couple of months of each other to her doing weights, she said (ts 86):
That's fine, I was doing upper body, very light weights at times, yes, and I was doing stretches and exercises at gym as a way of socialising …
I found the plaintiff's answers unsatisfactory. Obviously it was not in her interests to admit to doing regular gym work, including weight training and cycling, in the months prior to the diagnosis of her left‑sided labral tear, or afterwards.
The medical notes do not indicate that the plaintiff was otherwise symptomatic such that she was not able to do more than light upper body weights and yoga exercises. The notes are consistent. Dr Perera (27 June 2013, 'lots of weights'), Dr Mrsa (13 January 2014, 'exercises daily, weights five times per week'), Dr Jameson (14 February 2014, 'gym 5x a week, weights and cycling') and Ms Kate Allen (19 February 2014, 'healthy lady, does a lot of exercise, cardio, weight training, stretching') all made a point of noting in some detail the extent of the plaintiff's level of activity. These notes are likely to be accurate records of the plaintiff's statements to them. The plaintiff had no reason to mislead her doctors with regard to her physical activities. If she was restricted in her gym activities she would have said so. The plaintiff's evidence in relation to her gym activity was disingenuous. It further diminished her general credibility.
Whilst the Facebook posts cited above, and others, suggest a mental attitude and level of activity inconsistent with her presentation and complaints to various doctors at around the same time, I am loathe to give much weight to self-representations by social media posts. As the plaintiff was trying to promote herself and her business for personal advantage her posts are not reliable. Whilst the Facebook posts do not necessarily disprove her reports to her doctors, or her evidence of her disabilities, they do, nevertheless, reflect on her credibility generally.
Her evidence was also unreliable in other respects. She was unable to remember whether she a saw a police officer in the aftermath of the crash and whether she told that officer she had been injured (ts 66 - 67). She could not say whether she had been seen by Dr McCarthy. Her evidence of her business activities and her post-secondary studies was vague. No business records were provided. Some academic records were tendered (exhibit 1), but these were incomplete.
From my observations of the plaintiff giving evidence and the evidence generally, I find her to be a person who by her nature is inclined to project herself in different ways in different situations according to the desired outcome.
The plaintiff impressed me as a worldly, enterprising and ambitious young woman. She is also self-absorbed and immature. Her reliability in the course of evidence suggested discomfiture as opposed to distress. That impression was confirmed by the Facebook evidence and the evidence of her presentations to the medico-legal consultants who examined her.
I was unimpressed by the plaintiff's evidence. I am unable to rely upon her history of symptoms from time to time as given in evidence and to the medico-legal consultants. On the other hand, I find that her reports to her treating doctors are likely to be reliable, as she had no reason to misrepresent her health to them. To the extent that the plaintiff's case as to the causation of her orthopaedic injuries and psychiatric disorder depends upon the symptomatic history, I prefer the objective evidence of the medical records to her testimony.

Evidence of Zorica Stojceska

Mrs Stojceska is the plaintiff's mother. She was asked what activities she recalled her daughter being involved in when she was younger. She mentioned school friends, cinema, beach and modelling. After the crash she noticed that her daughter was not walking properly, was crying and depressed. She said that two weeks after the crash she noticed her taking tablets for pain. She would ask her to give her massages. She was depressed. She did not like to go anywhere. This had continued. Mrs Stojceska said that before the crash the plaintiff would help her with cleaning, cooking and washing, but that since that time the plaintiff had not helped her at all.
Mrs Stojceska's evidence is implausible and can be given little weight. It is largely inconsistent with the objective medical history. My clear impression of the evidence as a whole was that the plaintiff did not have a close relationship with her mother. She described her parents as strict. She did not go home after the crash, but rather to the defendant's place. By her own admission she did not tell her parents of the crash for two weeks. She gave little evidence of her home life. The plaintiff's evidence was to the effect that prior to the diagnosis of her left hip injury she had a busy life, combining study, business and social activities. Her evidence also disclosed a number of personal relationships.

Expert evidence

Mr Anthony Robinson

Mr Robinson, an orthopaedic surgeon, saw the plaintiff at the request of her lawyers on 21 March 2016, some four years after the crash.
The plaintiff told him that she noticed pain in her hips and lower back within 24 hours of the crash and that (contrary to the documented medical history) she went to see a doctor and a physiotherapist. The plaintiff said that her left hip pain persisted such that she underwent an ultrasound on 14 June 2013 revealing a moderate indirect inguinal hernia. After she was found to have a labral tear of the left hip she underwent surgery. Immediately after the surgery her pain was minimal, but over time it had returned to some extent. She described her pain as being 10% better than it was before the operation.
The plaintiff described constant pain in the left groin, occasionally very sharp and throbbing in nature. Her pain was exacerbated by sitting for about 60 minutes, walking for periods between 10 and 60 minutes, at night after an active day, going up and down steps especially with loads, flexion and extension of the left hip and spontaneously. The left hip pain radiated down the left thigh. There were occasional pins and needles in the left leg. The pain in the right hip was similar, but less intense. The plaintiff complained of constant pain on both sides of her low back, worse on the left, and exacerbated by extension and heavy lifting, and associated with radiation to the mid-back region and intermittent pins and needles in the legs. The plaintiff also complained of intermittent pain in the front regions of both knees, equal on both sides, which occurred with squatting, going up and down steps and lying on her side at night. There was no swelling or pseudo-locking.
The plaintiff said she had none of these problems prior to the crash. On examination Mr Robinson noted that the plaintiff walked with a limp and had difficulty walking on her heels and on her toes due to pain. There was wasting of the right quadriceps. There was no effusion of the knee. There was squinting of the patella. There was tenderness in the region of the medial patella facet, pain with the patella grind test and grade 2 – 3 patella maltracking. The knee, however, felt stable. There was a normal range of movement.
On the left there was also wasting of the quadriceps, squinting of the patella, tenderness of the lateral patellar facet and lateral joint line, pain with the patella grind test and grade 2 – 3 patella maltracking. As on the right, the knee was stable and there was a full range of movement.
In the hips there was no flexion deformity detected. The range of movement was unremarkable.
In the lumbar spine there was normal lumbar lordosis and no evidence of a scoliosis. There was tenderness in the region of the sacroiliac joint and pain on stressing the joint on the left.
Mr Robinson diagnosed labral damage of the left hip and possible ongoing indirect inguinal hernia, tendinopathy of the right hip, retro‑patella chondral damage of both knees and soft tissue inflammation of the lumbar spine.
He recommended a number of investigations, including a technetium bone scan, a patella skyline CT scan, a three-month supervised exercise programme and a repeat ultrasound of the left groin.
In his opinion the injuries were caused by the motor vehicle accident, the plaintiff having no prior problems in any of the symptomatic areas.
He thought that the plaintiff had a reasonable prognosis and would be able to complete her studies and go on to do her Masters degree. He anticipated that she would have trouble working in retail, even part‑time, but he thought she would improve over the following six months with recommended treatment. She had not been able to return to her social activities such as dancing, modelling and cycling. She did not have to carry out domestic duties. He considered that the plaintiff may benefit from facet joint blocks in her back, subject to the results of a scan.

I have no doubt that if she complained of eidetic symptoms (or re‑experiencing phenomena, in Dr Edwards-Smith's words), or any anxiety in relation to motor vehicles, to any doctor before being seen for medico-legal examination by Dr Proud in June 2015, over three years post-crash, such symptoms would have been noted.
I do not accept the plaintiff's evidence of such symptoms and find that the factual basis for the psychiatric opinion on which her claim rests is not established. Dr Proud was misled by the history given to him and, in particular, the plaintiff's denial of any prior mental health problems, her denial of past treatment and her denial of any family history of psychiatric problems. The significance of those omissions of relevant history was acknowledged by Dr Proud in cross-examination and explained by Dr Edwards-Smith. Furthermore, Dr Proud expressly conceded that physical violence, of which he was not told, could cause PTSD.
I reject the opinion of Dr Proud that, on the second occasion he saw her in September 2016, she had symptoms of major depressive disorder. I am unable to be satisfied that such symptoms, if they were genuine, could be causally attributed to a crash four years earlier. The plaintiff's presentation was inconsistent with prior presentations to Dr Edwards‑Smith in February 2016, (no symptoms of depression) and Dr Proud's first examination in June 2015.
Dr Proud's diagnosis was partly based, at least, on the distressed state of the plaintiff. She was tearful and tended to break down. Dr Proud agreed that her emotional behaviour in the examination was not necessarily a sign of illness and was similar to the observed behaviour of the plaintiff in evidence, as I described it to him, and upon which I have remarked. Dr Proud acknowledged that such behaviour could be a sign of personality 'woven with illness' (ts 157). The similar behaviour I observed during the plaintiff's evidence was affected in order to draw attention to her purported plight.
The plaintiff gave evidence of the symptoms on which Dr Proud otherwise based his diagnosis (ts 56). It was unconvincing. I do not accept that evidence and find that the symptoms on which Dr Proud's later diagnosis was based (exhibit 1, item 4, pages 17 - 18) have not been proved.
While the plaintiff may have had mental health problems, as the medical records show, these have related to stressors which bear no relationship to the crash. The plaintiff's claim with respect to psychiatric injury must fail.

Conclusions

The plaintiff was a passenger in a utility driven by the defendant which collided heavily with the rear of a stationary vehicle. The impact was heavy as evidenced by the photograph of the defendant's damaged vehicle. Notwithstanding the fact that the plaintiff was wearing a seatbelt and that her airbag inflated, she struck her knees on the dashboard and probably suffered a low back strain.
The injuries she suffered were minor such that they required no immediate treatment. On her evidence, the plaintiff required no assistance getting out of the vehicle or at the scene. It is not surprising, in those circumstances, that the attending police officer reported no injury.
The injuries suffered were minor and is also evidenced by the fact that when the plaintiff saw her general practitioner eight days later she did not mention the crash or report any physical or other symptoms. I find, contrary to her evidence that she did not experience 'a great deal of pain' in her knees. Rather, I find on the evidence that there was no significant injury to the knees or lower back, and no injury caused to either hip.
I find on the evidence of Mr Robinson and Mr Hill that the plaintiff would have suffered significant pain, likely to have been reported soon afterwards to a doctor, in her knees and hips, if, as she contends, she suffered bilateral knee and hip injuries causing chondral damage to the knees, labral tear in the left hip and tendinopathy in the right hip.
I find, based on the plaintiff's questionnaire and the chiropractor's notes that the plaintiff sought chiropractic treatment for headaches, knee and lower back tension, shoulder pain and jaw ache, injuries unrelated to the crash. She also reported the fact of the crash and the striking of her right knee on the dashboard. Her complaints of hip pain related to an incident one month before when she had sudden pain while walking, lasting five minutes. These complaints are wholly consistent with the plaintiff suffering minor injuries in the crash, and inconsistent with the expert orthopaedic evidence.
That the injuries to the knees and lower back were minor and resolved within a short period of time is supported by the fact that the plaintiff did not, whilst engaging in regular physical activity in the form of weight training, gym exercise, cycling and yoga, report any symptoms of the alleged physical injuries until October 2013 when she reported anterior pain in her left hip and did not attribute any symptom of injury to the crash until February 2014.
The history given to Ms Kate Allen of bilateral knee and hip pain from the time of the crash is so inconsistent with the documented medical history that it cannot be accepted as reliable. Similarly, the similar history given to Mr Robinson and Mr Hill is unreliable. The plaintiff has misattributed her lower limb symptoms to the crash.
I find that any injuries to her knees or lower back that she may have suffered were mild and resolved within a short period of time such that they did not require any treatment, apart from the two chiropractic attendances. Based on my assessment of the plaintiff, had those injuries been chronic, the plaintiff would have obtained medical advice, as in fact she did in October 2013 for her hip symptoms at that time.
I have found as a matter of fact that the plaintiff does not suffer PTSD or a major depressive disorder as a result of the crash. These diagnoses have been disproved by the documented medical history. I am not satisfied that the plaintiff has suffered the symptoms on which those diagnoses are based.
On the weight of these findings, I find that non‑economic loss should be assessed on the basis of having suffered mild injuries to her knee and lower back which resolved over a relatively short period of time with negligible treatment. The proportional severity of those injuries would not exceed 5% of a most extreme case for the purpose of s 3C of the Motor Vehicle Third Party Insurance Act. As Amount A, the maximum amount that may be awarded is $406,000, on my assessment the plaintiff would not be entitled to more than $20,300. This amount falls below the statutory threshold (Amount B: $20,500). Accordingly, no damages for non-pecuniary loss are awarded.
On the basis of my findings I am unable to discern any past or future loss of earning capacity, any need for gratuitous services, or any need for future medical treatment.
The plaintiff has handed up a schedule of special damages, on the basis that the assessment of such damages will depend on the findings of injury.
Prior to 9 October 2013, when she first complained of her left hip symptoms, the only treatment costs claimed are three Sterling Radiology X-ray fees, totalling $197.70, and a Duncraig Chiropractic fee of $75.00.
I consider that these fees should be allowed as special damages.
The X-rays fees were fully covered by Medicare and the chiropractic fee in part by Medibank. On the basis that Medicare is entitled to recover its benefits by statute, and that Medibank is probably entitled to a recovery from the plaintiff as a matter of contract, I would allow special damages of $272.70 and give judgment for that amount.