Suzana Gusavac v Quang Phuc Ngo

[2018] NSWDC 2

District Court

New South Wales

Medium Neutral Citation:

Suzana Gusavac v Quang Phuc Ngo [2018] NSWDC 2

Hearing dates:

26 and 27 September 2017

Date of orders:

18 January 2018

Decision date:

18 January 2018

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

I make the following orders:

(a)   judgment for the plaintiff in the sum of $5,457.02, of which the defendant’s insurer is to have credit in the amount of                      $1,572.47;
(b)   the question of the costs is reserved;
(c)   the parties have liberty to apply on 28 days’ notice in respect of the question of costs;
(d)   any party making an application in respect of costs must file and serve:
(i) a Notice of Motion setting out the costs orders sought and any legal provisions under the Motor Accidents Compensation Act 1999 or the Uniform Civil Procedure Rules relied upon; and
      (ii) an Affidavit in support of the Notice of Motion;
(e)   any such Motion(s) and Affidavit(s) be filed and served within 28 days;
(f)   the filing of those documents can be effected by lodging in the Registry and also emailing a copy of same to my Associate;
(g)  the Exhibits in the proceedings be returned.

Catchwords:

TORT – Motor Accident – Personal Injury – Assessment of Damages – re-hearing from Claims Assessment Resolution Service

Legislation Cited:

Civil Liability Act 2002
Motor Accidents Compensation Act 1999

Cases Cited:

Hutchison Constructions Services Pty Limited v Fogg [2016] NSWCA 135
Miller v Galderisi [2009] NSWCA 353

Texts Cited:

None

Category:

Principal judgment

Parties:

Suzana Gusavac (Plaintiff)
Quang Phuc Ngo (Defendant)

Representation:

Counsel:    Mr J Trainor (Plaintiff)
       Mr D O’Dowd (Defendant)

  Solicitors:   Than and Associates (Plaintiff)
       Hall & Wilcox (Defendant)

File Number(s):

2017/105136

Publication restriction:

None

Introduction - paragraph 1

The issues - paragraph 4

The accident and its sequalae - paragraph 6

Evidence of the plaintiff - paragraph 18

Evidence of Nada Gusavac (the plaintiff’s mother) - paragraph 64

The plaintiff’s medical evidence - paragraph 72

The defendant’s medical evidence - paragraph 94

Assessment of damages - paragraph 102

Past Treatment Expenses - paragraph 104

Future Treatment Expenses - paragraph 105

Past Economic Loss - paragraph 111

Future Economic Loss - paragraph 112

Future Domestic Assistance - paragraph 119

Summary of assessment - paragraph 125

Orders - paragraph 126

Judgment

INtroduction

1. These proceedings came before the Court for re-hearing following the plaintiff’s non-acceptance of an award at CARS. Pursuant to s108 of the Motor Accidents Compensation Act 1999 (MACA), one of the pre-conditions to the commencement of proceedings in Court is that a Claims Assessor has issued a Certificate in respect to the claim under s94 (Assessment of Claims). Although the matter has been determined by a Claims Assessor, this Court has no knowledge as to that assessment outcome and proceeds in the matter by way of hearing de novo.

2. The plaintiff’s action arises out of a motor vehicle accident which occurred on 12 September 2013. At that time, the plaintiff was 23 years of age. She is now 27 years old, having been born in April 1990.

3. The evidence in the hearing comprised oral evidence from the plaintiff and her mother, Mrs Gusavac, together with tender bundles from both parties.

the issues

4. The scope of the dispute between the parties is limited by the heads of damage by which the plaintiff claims. There was agreement as to some matters. Past treatment expenses were agreed between the parties in the sum of $3,052.87. Past economic loss was agreed in the sum of $1,654.20 representing a closed period during which the plaintiff was off work post-accident.

5. The remaining areas in dispute comprised the following:

1. future treatment expenses - the plaintiff’s Schedule of Damages claimed $15,000.00;

2. future economic loss - the plaintiff claimed a buffer of $75,000.00;

3. domestic assistance - no claim was made for the past as the plaintiff conceded that any such claim would fall below the threshold provided by s141B(3) of MACA. In respect of the future, the plaintiff claimed two hours per week to age 70, at the commercial rate of $44.00 per hour. The defendant’s position is that the evidentiary basis for future commercial assistance has not been made out and that if any need exists it will be satisfied by provision of gratuitous care by family members. As in the past, a future claim on a gratuitous basis would fall below the requisite threshold provided under MACA.

the accident and its SEQUALAE

6. As mentioned, the accident occurred on 12 September 2013 at approximately 9.30pm at or near the intersection of Railway Parade and Canley Vale Road at Canley Vale. According to the Police Report, the speed limit was 60 kph and that three vehicles were involved in the collision. The Crash Summary Details contained in the Police Report state:

About 9.30am on Thursday 12th September 2013 a Blue Honda Civic was travelling north along Railway Parade, Canley Vale. As the Blue Honda Civic approached the intersection of Canley Vale Road, Canley Vale and Railway Parade, the driver of the Blue Honda Civic was looking outside window of his car and did not pay attention to the front. Due to the driver of the Blue Honda Civic not paying attention to the road, it had resulted in the Blue Honda Civic to collide into the rear side of a White Honda CRV that was travelling in front. As a result of the Civic [sic] between the Blue Honda Civic and the White Honda CRV, it had caused the White Honda CRV to collided [sic] into the rear side of another vehicle being a Silver Ford Focus.

7. The defendant was the driver of the Blue Honda Civic which caused the accident. The plaintiff was the driver of the Ford Focus which was the first vehicle in line.

8. According to the Police Report, the plaintiff’s vehicle was not towed although there was a note of damage to the rear of the vehicle.

9. Quite properly, breach of duty of care was admitted and there was no allegation of contributory negligence.

10. Ambulance officers attended to the plaintiff at the scene of the accident. The plaintiff told the ambulance officers that she had pain in the left side of her neck and her left shoulder. Curiously, the Ambulance Report stated:

Nil damage done to car.

11. On examination, there was no central neck pain and the plaintiff was complaining of pain to the left side of the neck and pain in the left scapula. She declined the offer of analgesia. The plaintiff was taken to Liverpool Hospital.

12. The Liverpool Hospital Emergency Department Discharge Referral recorded, inter alia:

She was the driver of a vehicle struck from behind at low speed. She was wearing a seatbelt and sustained a flexion-extension movement of her neck resulting in acute left sided neck pain. She exited the vehicle and was mobilising at the scene before paramedics arrived and assessed her. She described some tingling sensation right hand but no other neurological symptoms.

(Emphasis added).

13. The Hospital Discharge Record noted that the plaintiff was otherwise well. She underwent an x-ray at the Hospital which was normal.

14. The transport collar which had been applied by the ambulance officers was removed at Hospital and the plaintiff was able to actively move her neck with some limitation on left rotation. A provisional diagnosis of muscular strain left neck was made and the treatment plan was simple analgesia.

15. The plaintiff was discharged with a Medical Certificate certifying her unfit to work from 12 September 2013 to 13 September 2013, inclusive (just two days).

16. The defendant tendered a number of photographs of the plaintiff’s vehicle post-accident. They indicated a crack in the rear bumper bar beneath the plastic façade. An indentation to the metal sub-structure of the vehicle was identifiable.

17. The accident appears to have been one of moderate severity in respect of which the plaintiff suffered relatively minor soft tissue injuries to her neck on the left side.

evidence of the plaintiff

18. At the time of giving evidence, the plaintiff was on maternity leave following the birth of her second daughter. She otherwise was employed as a permanent full time Child Protection Case Worker at the Department of Family and Community Service.

19. The plaintiff’s evidence-in-chief was generally consistent with the chronology included in Exhibit A, the plaintiff’s tender bundle. The details of the chronology will not be repeated in these reasons but careful consideration has been given to the contents of same.

20. Relevantly, the plaintiff gave evidence about her duties as a Child Protection Worker. There are two fundamental aspects to the job. The first is administrative duties which the plaintiff agreed were largely clerical and sedentary in nature [T9.47]. The second, more challenging aspect of the job was attending home visits which would, on occasions, involve the removal of children from their domestic environment. The plaintiff described how the removal of children in those circumstances was quite stressful and traumatic (see generally [T10]).

21. Two Case Workers would attend on home visits, one being the primary case worker responsible for the children’s welfare and the other a secondary case worker who would essentially attend as a witness. On occasions, police would also be present.

22. In her evidence-in-chief, the plaintiff described the physical aspects of the job so far as it related to the removal of children. It was plain from her evidence [T11-13] that aspect of her job involved some lifting and carrying of items such as baby capsules, booster seats, children’s belongings and the like. It was also necessary, on occasions, to lift and carry young children.

23. The plaintiff’s long term plan was to remain employed in the Department but progress to the position of Manager and later, Director, both of which are less hands-on than the job of a Case Worker.

24. The plaintiff gave extensive evidence concerning her domestic situation and the duties which she performed around the house prior to the accident.

25. The plaintiff lived in a single storey house comprising five bedrooms, three bathrooms, a living room, lounge room, pergola, garage and shed. She lived in the house with her grandfather (aged 79 and not working), her father (who ceased work due to a work injury post the subject accident), her mother (who worked full time as a sales representative) and her older brother who worked full time in the information technology industry.

26. Prior to the accident, the plaintiff was very busy at home. Despite working full time, she would attend to the following:

1. cooking – a job which she shared with her mother, occupying about two hours per day;

2. laundry – again shared with her mother, occupying more than two hours per week;

3. general cleaning – again shared with her mother, which was mostly done at weekends and occupied about four hours;

4. grocery shopping - with her mother;

5. ironing, which the plaintiff mostly did, taking about one and a half hours per week;

6. gardening - the plaintiff spent about one to one and a half hours per fortnight attending the garden;

7. washing cars - the plaintiff said that she alone was responsible for washing all four cars in the family which she did about once a month taking about an hour and a half each time.

27. On a rough calculation, it would appear that the plaintiff would spend approximately 14 hours per week attending to the domestic tasks referred to above. Plainly, the majority of that assistance was provided by the plaintiff to other members of the household.

28. The plaintiff then gave evidence about the accident which was generally consistent with the observations made above. In addition, the plaintiff stated that on the day following the accident, she consulted a GP in Merrylands complaining of pain in her neck, left shoulder and low back. Amongst the documents forming Exhibit A is a Medical Certificate signed by Dr Luong of Merrylands. He stated that he examined the plaintiff on 13 September 2013, the day after the subject accident and made the following diagnoses:

1. whiplash injury to the neck;

2. soft tissue injury to the chest wall;

3. lumbar strain.

29. Dr Luong referred the plaintiff for physiotherapy and acupuncture. He certified her unfit to work from 13 September 2013 to 30 September 2013, being fit to resume normal duties on 1 October 2013.

30. In a report to the plaintiff’s solicitors dated 30 January 2014 (Exhibit A), Dr Luong noted that the plaintiff was aware of pain and discomfort radiating from the neck to shoulders and low back pain when getting out of the car. The latter part of the entry is at odds with the notes of the attending ambulance officers and the Liverpool Hospital Emergency Department.

31. As for the referrals for treatment by Dr Luong, it would appear that the plaintiff sought physiotherapy treatment on eight occasions between 30 January 2014 and 14 March 2014 (see Exhibit A). It does not appear from any payment schedule that the plaintiff sought any treatment from an acupuncturist. In relation to the treatment from Dr Luong, the plaintiff consulted him on about 10 occasions but not in the last two years prior to hearing.

32. Two days after the accident on 14 September 2013, the plaintiff underwent a CT scan of her cervical and lumbar spines. No abnormalities were detected.

33. The plaintiff’s evidence is that when she returned to work, about three weeks after the accident, she returned to performing the same duties in the same role which she had before the accident [T25.34]. There were, however, modifications made to her work duties. She explained that if she was required to carry capsules or booster seats, she would have the “secondary” help her carry those to the car and install them [T25.45].

34. The plaintiff continued working performing those duties up until November 2014 when she went off work on maternity leave more than 12 months after the accident. Her first child was born a few weeks later. The plaintiff remained on maternity leave up until early 2016 before returning to work, initially on a part time basis.

35. In June 2016, there was a change in the structure at the plaintiff’s office. For about two months, her job was to prepare the files which were being re-allocated to different officers. After that period and in about September or October 2016 the plaintiff returned to working as a Case Worker on a part time basis working five days per fortnight. She told the Court that she worked on a part time basis because she was required to care for her young child [T27.47]

36. In about mid October 2016, the plaintiff ceased work due to complications with her second pregnancy leading to the birth of her second daughter in December 2016. As mentioned, the plaintiff remained on maternity leave at the time of hearing although expressed a desire to return to part time work (five days per fortnight) in early 2018.

37. The plaintiff was asked to describe her pain. She said that “it comes and goes”. She continues to experience pain on that basis in her neck and low back. She thought that she saw Dr Luong, GP, last in April 2016, however, the records indicate that it was in fact in 2015. As for the treatment she currently receives, the plaintiff stated that she alternates fortnightly doing acupuncture and cupping at a cost of between $40.00 to $70.00 per treatment. There is no other evidence that the plaintiff has received such treatment or paid those expenses. In addition, the plaintiff continues to take Panadol. In the week prior to giving evidence, she estimated that she had done so on four occasions.

38. Initially after the accident, the plaintiff’s living arrangements remained the same. In around June 2014, however, she bought a house with her then partner in which she lived from about November 2014 to February 2015, just three months. She ceased living in the house upon separation from her partner. The former partner is, however, the father of the plaintiff’s two children born in November 2014 and December 2016 (after separation). She explained this situation by a desire to have two full siblings. That is, that she always wanted to have two children to the same partner and that he was of the same belief [T31.20]. He was not called to give evidence.

39. After breaking up with her partner, the plaintiff returned to her family home. The plaintiff then described the changed domestic arrangements.

40. Since returning home, the plaintiff’s mother does most of the cooking because the plaintiff gets uncomfortable in certain positions and by standing for prolonged periods.

41. The plaintiff has continued to assist in laundry duties but now mostly does the folding and her mother will put the clothes on the line. She is limited by lifting and stiffness in her neck and back.

42. In relation to the cleaning, the plaintiff has continued to assist in that regard although her mother would have to “jump in” and assist on occasions.

43. In relation to the grocery shopping, the plaintiff has continued to assist.

44. In relation to the ironing, the plaintiff does it occasionally if she has to but it aggravates her neck and lower back. There was no evidence as to who, if anyone, does the ironing which the plaintiff did pre-accident;

45. The plaintiff stated that she has not returned to doing any gardening because it requires a lot of bending. Again, no evidence was adduced as to who now attends to this.

46. She has not returned to doing the car washing, because of the strain it places on her back and neck. It is not known who, if anyone, now does this.

47. Overall, with the exception of the car washing and gardening, the plaintiff has continued to contribute to all domestic activities but to a lesser degree.

48. In cross-examination, the plaintiff agreed that she consulted her regular GP on 9 September 2013, just three days before the accident complaining of “lethargy, malaise and giddiness” [T35.41].

49. The plaintiff returned to her regular GP’s surgery on 12 September 2013, the day of the accident. The purpose of that visit was to discuss the blood test results which were normal. The plaintiff, nevertheless, complained of continuing dizziness and the like.

50. The plaintiff attended her regular GP’s surgery after being discharged from hospital. It was suggested to the plaintiff that she did not make any mention of the motor vehicle accident or any injury suffered in it. She denied that proposition.

51. It was put to the plaintiff that she attended that medical centre on 3 April 2014, 8 April 2014, 5 May 2014, 12 July 2014, 4 December 2014 and 13 December 2014 and did not on any of those occasions make any reference to neck or back pain. The plaintiff’s answer was confusing and unsatisfactory. She stated:

Yes, so on the day of the accident I went and spoke to a doctor that was a duty doctor at the medical centre. After the accident I went and saw a different doctor that I used to speak to about the accident and I only used to go to that medical centre for any other reason if I was sick.

[T39.20].

52. It became clear in questions from the Court that the plaintiff consulted Dr Luong the day after the accident at the suggestion of her solicitor. She would consult the other medical surgery, Advanced Liverpool Medical Centre, for conditions unrelated to the motor vehicle accident. This would explain why there are no recorded complaints of the accident or its effects, including during the consultation which occurred immediately after leaving the Hospital.

53. The plaintiff’s explanation for why she consulted a new doctor the day after the accident in respect of the conditions caused by it was unsatisfactory. She seemed to suggest that, despite the fact that she consulted the regular medical centre in respect of every other condition, including the pregnancies, she did not have faith in or a good rapport with the doctors at that centre. Instead, having consulted a solicitor the day after the accident, the plaintiff attended upon a new doctor. Whilst this is curious and possibly suspicious behaviour, it seems that nothing much turns upon it. Perhaps the most relevant factor was the absence of any complaint to her regular GP after discharge, suggesting perhaps that the accident was of little moment to the plaintiff.

52. The plaintiff was then asked about the accident and damage to her vehicle. Contrary to what appears in the Police Report, the plaintiff stated that her car was towed away when she was taken to Hospital.

53. In her further evidence in cross-examination, the plaintiff explained that she was provided with her solicitor’s contact details by a tow truck driver. She consulted the solicitor the next day and he referred her to Dr Luong as she apparently stated that she did not have a GP. This was plainly not correct.

54. Despite the absence of any reference in the notes of her regular medical centre concerning the accidents or its effects, the plaintiff maintained she told the doctor whom she saw on 12 September 2013 about the accident.

55. The plaintiff was challenged about the timing of the onset of low back pain. Apparently, she told Dr Keller that the pain did not come on until six months after the accident and was exacerbated by her pregnancy. The plaintiff denied those assertions.

56. Regarding work, the plaintiff was cross-examined to the effect that there was no reason why the second case worker could not perform the lifting duties involved in removing children from domestic premises. Initially in answer to a hypothetical question she agreed such assistance could be provided [T53.5] but later appeared to express some difficultly about the availability of the second person and the demarcation of responsibilities between the workers. The plaintiff denied that she could undertake the heavier aspects of her duties which she performed pre-accident. Departing from her evidence-in-chief, the plaintiff also agreed that she was off work for just two weeks and two days, not three weeks as previously suggested [T53.50].

57. In relation to domestic assistance, the plaintiff stated in cross-examination that “men in our family don’t do anything” [T57.48]. She agreed with the proposition that the men in the family simply go home and put their feet up [T58.6] and that they were perfectly capable of doing things for themselves but they do not [T58.15].

58. The plaintiff agreed with the proposition that despite having to care for her two children and herself, she has continued to provide assistance to other members of the family [T58.45].

59. In terms of working in the future, the plaintiff said that she will try and get the promotions referred to in her evidence-in-chief when she returned to work full time. That employment would be more administrative and supervisory. The plaintiff stated that she would love to do that work. She said that she is going to continue to work hard to achieve that goal and that no further study was required to do so.

60. The plaintiff stated that her youngest daughter will start kindergarten in 2020 freeing the plaintiff up to return to full time work.

61. Finally, in further cross-examination, the plaintiff agreed with the proposition that the accident was a low speed collision.

Evidence of Nada Gusavac (the plaintiff’s mother)

64. Mrs Gusavac was 47 years of age when she gave evidence. She identified the members of her household as at the time of the accident as comprising herself, the plaintiff, her father-in-law (aged 79), her husband (aged 52) and her son (aged 29).

65. Mrs Gusavac described the house in similar terms to the plaintiff.

66. Mrs Gusavac also described the household duties in a way which was generally consistent with that of the plaintiff, save for gardening and car washing which were not mentioned.

67. Post-accident, the plaintiff continued to assist in cooking and cleaning but would on occasions complain of pain.

68. It was ultimately necessary for the witness to provide evidence with the assistance of an interpreter. When asked what had changed since the accident, Mrs Gusavac said “I do perform a lot more than I used to. There is extra work”. She estimated that she spends between six to seven hours extra per week attending to domestic duties.

69. The plaintiff’s mother described the burden carried by the plaintiff in respect of child care as a single parent. Ultimately, the witness agreed that her daughter had a full time job looking after her children and that her available time to do things for other members of the household was limited as a result.

70. Mrs Gusavac agreed that, prior to the accident, the plaintiff was living with her fiancé in a separate house to the family which is inconsistent with her earlier evidence that she moved out after the accident.

71. Overall, the evidence of Mrs Gusavac demonstrated that most of the plaintiff’s time was now taken with caring for her two young children which included placing them in the car, putting them into car seats and capsules and lifting the children into the back seat of cars, similar to the duties which the plaintiff performed as the Primary Case Worker prior to the accident.

the plaintiff’s medical evidence

72. The starting point in considering the medical evidence in the plaintiff’s case are the ambulance notes and Hospital Discharge Summary, referred to in detail above. Of significance is that the accident is described in those documents as being low speed and that the only complaints made by the plaintiff concerned the left side of her neck and shoulder.

73. Radiological investigations undertaken at the Hospital did not reveal any abnormality.

74. At odds with the ambulance and hospital records is the medical certificate issued by Dr Luong on 1 October 2013 which include two additional injuries, namely, soft tissue injury to the chest wall and a lumbar strain.

75. By the time the plaintiff commenced receiving physiotherapy treatment almost three months after the accident, the neck pain complaints persisted as did the low back pain.

76. The report produced by the physiotherapist refers to difficulties in early 2014 experienced by the plaintiff at work in early 2014. Despite the fact that the insurer had admitted liability for the accident and was, therefore, responsible for payment of the plaintiff’s reasonable and necessary expenses, the plaintiff only consulted the physiotherapist on eight occasions. The last occasion being 14 March 2014, more than three years prior to the hearing.

77. The plaintiff only consulted Dr Luong, GP, in relation to the accident on just 10 occasions, half of those in 2013, the year of the accident. Prior to the hearing, the last time the plaintiff had consulted her GP in respect of the accident was 21 August 2015, more than two years earlier.

78. Dr Luong, GP, prepared a report dated 30 January 2014 which was of limited use as it pre-dated the hearing by more than three and a half years. Objections were taken to the report to the extent that the GP referred to diagnosis of a psychiatric nature, plainly outside his area of expertise. Those parts of the report were redacted. Similarly, objection was taken to the opinion of Dr Luong concerning the quantification of domestic assistance. That part of his report was not pressed.

79. Dr Luong was not required for cross-examination. There are a number of aspects of his opinion and the report generally which are illogical and at odds with other facts. For example, Dr Luong noted the immediate onset of left-sided neck pain following the accident and also stated that “when she got out of the car she noted low back pain”. That seems unlikely as had that occurred it would most probably have been reported to and recorded by the attending ambulance officers and the nursing staff at Hospital.

80. Dr Luong also refers to a number of neurological signs in the form of paraesthesia and tingling. There is no radiological finding of neural involvement or any other evidence which would support such a finding.

81. In respect of her activities of daily living, Dr Luong stated that the plaintiff has difficulties but that she “has to do it and does it with pain. Her domestic activities take her much longer than before and she needs to take frequent rest breaks …”

82. Dr Luong’s opinion in January 2014 was that the plaintiff suffered soft tissue injuries to the neck, left shoulder and low back. He thought that the plaintiff’s condition would be long term and that she would be dependent upon medical treatments “for a long time to come”. That prognosis has been shown, by the passage of time, to be false.

83. Overall, I consider the opinion expressed by Dr Luong in his report dated 30 January 2014 to be unpersuasive and I place very little weight upon it.

84. The plaintiff also relied upon a report by Dr Patrick, General and Vascular Surgeon, dated 17 July 2015. At that stage, the plaintiff was on maternity leave, caring for her three month old daughter and living with her partner, Bosko.

85. Dr Patrick took a history of pain and restrictions in relation to the neck, left shoulder and low back. On physical examination, despite finding that there was no embellishment, he stated “guarding is very evident”.

86. After reviewing the radiology, particularly the CT scans of 14 September 2013, Dr Patrick stated “she has also, I believe, sustained some lumbar spinal injury with possibly a small posterior disc protrusion at L5/S1 level”. This assertion is not explained. The CT scan report indicated that the plaintiff’s lumbar vertebrae appeared normal in height and alignment with the disc spaces being preserved. The radiologist noted that there was no significant posterior disc bulges or spinal canal stenosis demonstrated by the scan.

87. At odds with his tentative finding of a disc protrusion, Dr Patrick then went on to state that “there is no evidence for any radiculopathy arising at any spinal region”.

88. Despite finding that the plaintiff had some restrictions in her work capacity, Dr Patrick stated that he was hopeful that the plaintiff would be able to continue with the majority of her activities as a Child Protection Case Worker.

89. He then went on to make a number of recommendations in relation to medical treatment which, in my view, are both excessive and unreasonable.

90. In relation to domestic assistance, Dr Patrick stated that “her partner provides considerable assistance now”. Despite that history which presumably was given by the plaintiff, there was no evidence from her at all about assistance being provided by her former partner.

91. Objection was taken to Dr Patrick’s expression of opinion as to the quantification of the need for domestic assistance. That objection was upheld and the report redacted to that extent.

92. Dr Patrick generated a second report of the same date in which he performed the whole person impairment assessment according to the MAA Guidelines. He found a 5% whole person impairment of the cervical spine and a 5% impairment of the lumbo-sacral spine.

93. Given Dr Patrick’s unjustified suspicion of a disc protrusion and his unrealistic programme for future treatment, I am unable to accept his opinion.

the defendant’s medical evidence

94. The defendant relied upon a report by Dr Andrew Keller, Occupational Physician, dated 27 July 2015, again some two years prior to the hearing. The plaintiff told Dr Keller that she was employed as a Child Protection Case Worker, a job she commenced in 2011. She stated that she works full time, eight hours a day, five days a week (obviously before the birth of her first child). She described her duties as being 60% desk-based administration and 40% on-site work which may involve removing children and the like.

95. The plaintiff told Dr Keller that sometime after returning to work in October 2013, she commenced physiotherapy which she did for about five months. She said that currently she has acupuncture once or twice a month and has cupping every two months. No evidence has been adduced by the plaintiff as to the fact that the plaintiff has such treatment or as to the need, reasonableness, frequency and cost of same.

96. Under the heading “Presenting Complaint” the plaintiff reported “constant, dull cervical spine” which she rated at 6/10. Dr Keller then recorded “she also reports the onset of lower back pain six months following the motor vehicle accident”. That pain was described as intermittent, occurring daily with lifting, such as lifting her baby. Dr Keller said that “Ms Gusavac is independent in self-care tasks. She can cook and clean at home with some help from her mother. She does no yard work”.

97. The physical examination undertaken by Dr Keller failed to reveal any significant abnormality. He noted that “she sat comfortably throughout the 30 minutes of the consultation and moved her neck quickly and freely without signs of distress”.

98. Dr Keller found a full range of motion in the cervical lumbar spine without asymmetry or muscular spasm.

99. Dr Keller accepted the plaintiff may have suffered a cervical spine strain in the accident from which she had recovered without the need for ongoing treatment. In relation to the low back, he thought that it was unlikely to be related given the delay in its onset, according to the account provided by the plaintiff herself. He thought that there was no need for any medical treatment.

100. In relation to domestic assistance, Dr Keller expressed the opinion that the plaintiff had no requirement for assistance with domestic duties that was unlikely to change in the future.

101. Like all other doctors, Dr Keller was not cross-examined on his report or as to his opinion. Notwithstanding that his opinion was based upon the history provided by the plaintiff herself, I find it quite persuasive. The only reservation is the timing of the onset of the low back complaint. The fact that the plaintiff was referred for a CT scan of the lumbar spine shortly after the accident and that Dr Luong has a history of same, it seems unlikely, despite what was said by the plaintiff to Dr Keller that its onset was delayed by six or seven months. In any event, whatever condition existed in the lumbar spine appeared to have resolved satisfactorily by the time of Dr Keller’s examination in mid-2015.

assessment of damages

102. As noted at the outset, the plaintiff’s claim is quite limited:

1. past treatment expenses;

2. future treatment expenses;

3. past economic loss;

4. future economic loss; and

5. future domestic assistance.

103. In respect of each of those heads of damages, I make the following findings based upon the evidence:

Past Treatment Expenses

104. These have been agreed between the parties in the sum of $3,052.82 of which $1,572.47 had been paid by the insurer pursuant to its obligation under s83 of MACA. The amount agreed between the parties is allowed.

Future Treatment Expenses

105. Whilst Dr Luong and Dr Patrick set out an extensive regime of treatment for the plaintiff going forward, in my opinion, what has been recommended is neither reasonable nor necessary. For example, Dr Patrick’s recommendation that the plaintiff see a specialist of unstated specialisation once every two years at a cost of $195.00 per consultation continuing is unsubstantiated and appears to be utterly unreasonable. It is also inconsistent with the fact that the plaintiff, in the acute period of her injury, did not have the need for specialist attention at that time. It is highly unlikely that any such need will arise in the future.

106. The other recommendations by Dr Patrick seem to be random and unsubstantiated. I reject his opinion regarding future treatment.

107. As for Dr Luong, his prognosis in January 2014 that the plaintiff would require monthly reviews by her general practitioner together with prescription medication, physiotherapy and hydrotherapy is at odds with the known fact that since mid-2015, the plaintiff has not consulted a GP in relation to the motor vehicle accident, suggesting strongly that no such need exists.

108. I have no hesitation in accepting the opinion of Dr Keller that the plaintiff does not have any need for any medical treatment and that she manages her condition with non-prescription Paracetamol.

109. As part of Exhibit 1, the defendant tendered a print-out of a document generated by Coles indicating the cost of Paracetamol tablets (20 pack) is 70 cents. The plaintiff’s evidence-in-chief was that in the week prior to the hearing, she had taken Panadol for either her neck or back on just four occasions, two tablets at a time. On that basis, it seems likely that a pack of 20 tablets would meet the plaintiff’s need for about two and a half weeks.

110. Based upon my acceptance of the evidence of Dr Keller and having regard to the evidence of the plaintiff as to her treatment pattern, I allow the sum of $750.00 for future treatment expenses.

Past Economic Loss

111. It was agreed between the parties that an allowance for a closed period of $1,654.20 was reasonable. Accordingly, I find that the plaintiff’s past economic loss is in that amount.

Future Economic Loss

112. The plaintiff’s Schedule of Damages (part of Exhibit A) sought a buffer for future economic loss in the sum of $75,000.00.

113. The defendant submitted that no allowance should be made for future economic loss. It relies upon the fact that the plaintiff returned to full time work shortly after the accident and continued in that employment until going on maternity leave.

114. I am mindful of the evidence of the plaintiff that she intended to continue to meet her career expectations of moving from a hands-on position to a managerial type role. Such a transition would plainly overcome any difficulties which the plaintiff had in relation to the lifting and carrying of children. To qualify for promotion to the next level, the plaintiff said that it was not necessary for her to undertake any additional course or study but rather just perform her job successfully. She appeared quite motivated to do so.

115. The fact that the plaintiff has given birth to and cared (mostly alone) for two young children since the accident occurred also raises questions about the veracity of her evidence regarding her ability to perform her pre-accident employment. Caring for two young children would involve constant lifting and carrying as well as many other duties performed by parents with children of that age. The fact that she was able to attend to the care of her own children without relying upon any regular medical treatment or any medical treatment at all suggests that the plaintiff’s capacity for that type of work is greater than stated by her and, most, probably, not affected.

116. In submitting that the plaintiff ought to be awarded a buffer of $75,000.00, the plaintiff has failed to identify the assumptions about future earning capacity or other events on which the award is to be based let alone to link those matters to the plaintiff’s most likely future circumstances, as is required under s126 of MACA.

117. In my opinion, the plaintiff’s relatively speedy return to full time work after the accident, together with the fact that she has, almost single-handedly raised two young children, suggests that any incapacity which she has is minimal. I also favour the opinion of Dr Keller that the plaintiff was fully fit for her pre-accident duties. Accordingly, I find that the plaintiff’s capacity to work is unchanged. If there is any incapacity, I find that it is unlikely to be productive of loss.

118. For those reasons, I decline to make any award of future economic loss.

Future Domestic Assistance

119. The first issue which arises in respect of this head of damage is whether there is a need for assistance of this type created by the subject accident. I note that “attendant care services” is defined in s3 of MACA as meaning “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.

120. In her evidence-in-chief, the plaintiff described the extensive amount of domestic assistance which she provided to the household prior to the accident. It included cooking, household cleaning, laundry, ironing, shopping, garden maintenance and washing all four of the family cars. Whilst she was assisted to some degree by her mother in some of those activities, it is plain that the plaintiff bore the brunt of the domestic chores.

119. In cross-examination, the plaintiff stated “men in our family don’t do anything” and agreed with the proposition that the men in the family go home and put their feet up [T57-58]. In my opinion, most of the activities which were performed before the accident were for the benefit of others including her elderly grandfather, her disabled father, her mother and older brother.

120. The plaintiff’s inability to perform those tasks for the benefit of others (should there be any) does not enliven a claim for domestic assistance in respect of needs which the plaintiff has as a result of the accident. Instead, to the extent that the plaintiff’s mother now performs more in the way of domestic activities suggests, on the evidence, that it represents an increase in the mother’s contribution to the household, for the benefit of others.

121. Whilst a claim in respect of that assistance may have been advanced under s15B of the Civil Liability Act 2002, no such claim was made. In my opinion, the claim for domestic assistance in respect of any needs which the plaintiff herself may have fails. That is, that the plaintiff has failed to demonstrate that there is any need created by the accident which is to be met by attendant services, gratuitous or otherwise.

122. The second issue concerning a claim for future domestic assistance related to whether or not it ought to be assessed on a commercial or gratuitous basis. The need to answer this issue is now unnecessary by reason of the previous finding, I do note, however, that there was no evidence in the plaintiff’s case that any assistance would be sought on a commercial basis and in that regard I am mindful of the comments of the New South Wales Court of Appeal in Miller v Galderisi [2009] NSWCA 353 (10 November 2009) and Hutchison Constructions Services Pty Limited v Fogg [2016] NSWCA 135 (21 June 2016). In my opinion, even if there was a demonstrated need for domestic assistance, I find it unlikely that it would be provided on a commercial basis. It is more probable that it would fall well short of the thresholds for gratuitous domestic assistance provided by s141B of MACA.

SUMMARY OF ASSESSMENT

125. Accordingly, I assess damages as follows:

(a)	Past out of pocket expenses (agreed)	$3,052.82
(b)	Future out of pocket expenses	$750.00
(c)	Past economic loss (agreed)	$1,654.20
(d)	Future economic loss	$Nil
(e)	Future domestic assistance	$Nil
Total	$5,457.02

ORDERS

126. Accordingly, I make the following orders:

1. judgment for the plaintiff in the sum of $5,457.02, of which the defendant’s insurer is to have credit in the amount of $1,572.47;

2. the question of the costs of the proceedings is reserved;

3. the parties have liberty to apply on 28 days’ notice in respect of the question of costs;

4. any party making an application in respect of costs must file and serve:

1. a Notice of Motion setting out the costs orders sought and any legal provisions under MACA or the UCPR relied upon; and

2. an Affidavit in support of the Notice of Motion;

5. any such Motion(s) and Affidavit(s) be filed and served within 28 days;

6. the filing of those documents can be effected by lodging in the Registry and also emailing a copy of same to my Associate;

7. the Exhibits in the proceedings be returned.

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Decision last updated: 19 January 2018