Tonkin v Strickland - [2007] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TONKIN -v- STRICKLAND [2007] WADC 144

CORAM: SLEIGHT DCJ

HEARD: 12, 13, 15, 16, 19-23 MARCH 2007, 3 APRIL 2007

DELIVERED : 24 AUGUST 2007

FILE NO/S: CIV 2725 of 2005

BETWEEN: LANA ROSE TONKIN
Plaintiff
AND
MATTHEW DAVID STRICKLAND
Defendant

Catchwords:

Assessment of damages for personal injury - Complex Regional Pain Syndrome - Alleged malingering and deception of medical practitioners - Extensive video surveillance

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment for the plaintiff in the sum of $689,794.65

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendant: Mr B E Lawrence

Solicitors:

Plaintiff: John Rando & Co
Defendant: Lawrence & Howell

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

Bowen v Tutte [1990] Aust Tort Reports 68,079
Briginshaw v Briginshaw (1938) 60 CLR 336
De Blank v Stemberger [2000] WASCA 358
Griffith v Kerkemeyer (1971) 179 CLR 161
Hendrie v Ruski [2000] WASCA 249
Jongen v CSR (1992) Aust Torts Report 81-192
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newman v Nugent (1992) 12 WAR 119
Villasevil v Pickering (2001) 24 WAR 167

Summary

Central issues

The plaintiff's evidence
(a)The accident
(b)Injuries and treatment
(c)Present symptoms
(d)Change in lifestyle
(e)Employment
(f)Medication and ongoing treatment
Cross-examination of the plaintiff

Is the extent of movement demonstrated in the home videos consistent or inconsistent with the plaintiff's presentation to medical practitioners?
Dr Phillip Finch
Associate Professor Rob Will
Ms Karen-Goodall-Smith
Dr Louise Smyth
Mr Graham MacKay-Coghill
Dr Danny Shub
Dr Martyn Flahive
Professor S S Gubbay
Dr Alex Cohen
Video surveillance
Is the extent the plaintiff used her right arm in the shopping centre and home videos consistent or inconsistent with the allodynia she alleges she suffers?

Is the extent of wasting observed by medical practitioners consistent or inconsistent with her alleged disabilities?

Is the extent of the plaintiff's daily activities as demonstrated by the home videos consistent or inconsistent with her presentation as to the state of her physical and psychological disabilities?

Non-medical witnesses

Onus of proof

Findings

Assessment of damages
(a)Past loss of earnings
(b)Past loss of superannuation
(c)Interest on past loss of earnings and past superannuation
(d)Future loss of earnings
(e)Future loss of superannuation
(f)Past and future medical expenses
(g)Past and future gratuitous services
(h)Interest on past gratuitous services
(i)General damages
SLEIGHT DCJ: This case concerns a claim for damages for personal injuries arising from a motor vehicle accident on 1 August 2002 ("the accident").
Liability is admitted by the defendant and the issue at trial is what entitlement the plaintiff has for damages.

Central issues

The plaintiff's claim is that as a result of the accident she suffers a Complex Regional Pain Syndrome to the right shoulder, spreading down into her right arm and hand. The plaintiff claims this has led to a substantial disability to her right arm and hand. She also claims that from about April 2005 the disability spread to her right leg, causing her to limp. She claims she has suffered continual pain since the accident, principally in her right shoulder and arm, an exquisite sensation to touch (allodynia) of the right forequarter, headaches (including migraines) and depression. She has been under continuous treatment and medication since the accident. She claims that her symptoms have increased since the accident, although she has come to live with them. She says her disabilities have caused a major disruption to her daily life and she has been unable to continue work in her previous occupation as a home economics teacher and has suffered a total loss of earning capacity.
The defendant in an amended defence disputes the plaintiff's injuries, symptoms and disabilities. Further the defendant pleads that:
(a)The plaintiff has falsely claimed she suffers from symptoms and disabilities and in so doing is malingering and actively attempting to deceive the defendant's insurers for the purpose of obtaining damages which greatly exceed a fair compensation for her injuries and/or loss.
(b)Alternatively, if the plaintiff has suffered the symptoms and disabilities claimed, she has exaggerated those symptoms and disabilities for the purpose of obtaining damages greatly exceeding a fair compensation for her injuries and/or loss.
(c)Alternatively, if the plaintiff has suffered injuries claimed, then she has falsely claimed or exaggerated her symptoms and disabilities to her treating doctors so that the doctors have not treated her properly and she has not recovered as quickly from the effects from the injuries as she would have done had she received proper and adequate treatment.
Accordingly, a central issue in this trial is whether the plaintiff has been honest and genuine in her presentation of her symptoms and disabilities to various doctors and also in her evidence during the course of this trial.
The evidence presented by the defendant consisted of extensive video surveillance and a number of medical specialists to whom the defendant's insurer had referred the plaintiff for medical/legal assessment. The video surveillance can be divided into two categories. The first category consists of surveillance of the plaintiff when she was attending shopping centres and on one occasion, attending a medical specialist appointment. The second category of video surveillance consists of images of the plaintiff at the front of her home taken from a fixed camera some distance down the roadway from the plaintiff's home. Throughout this decision I will refer to the first category of surveillance as the shopping centre videos and the second category as the home videos.
In my opinion, the question of whether the plaintiff is malingering and falsifying or deliberately exaggerating her symptoms and disabilities can be crystallised into a number of evidentiary issues:
1.Is the extent of movement by the plaintiff as demonstrated in the home videos consistent or inconsistent with the plaintiff's presentation to medical practitioners and a diagnosis of Complex Regional Pain Syndrome?
2.Is the extent the plaintiff used her right arm in the shopping centre and home videos consistent or inconsistent with the allodynia she alleges she suffers?
3.Is the extent of wasting observed by medical practitioners consistent or inconsistent with her alleged disabilities?
4.Is the extent of her daily activities as demonstrated by the home videos consistent or inconsistent with her presentation as to the state of her physical and psychological disabilities?
It also seems to me that a further issue arises in this case, and that is to what extent, if any, is the plaintiff's presentation affected by a psychological overlay (as opposed to a deliberate falsification or exaggeration)?
Before addressing each of these questions, I believe I should summarise the plaintiff's evidence presented by her at the trial.

The plaintiff's evidence

(a) The accident

It is not disputed by the defendant that the plaintiff was involved in a serious accident. The plaintiff described in her evidence the accident on 1 August 2002. She described how the accident occurred at an intersection where the defendant's vehicle travelled through a red light, hitting the passenger side of the plaintiff's vehicle. The plaintiff's vehicle was a write-off as a result of the collision. At the time of the accident the plaintiff was in the driver's seat wearing a seatbelt.

(b) Injuries and treatment

The plaintiff said she immediately experienced pain in her right arm and shock. The seatbelt caused extensive bruising to the right arm.
After the collision she got out of her vehicle and later her husband attended the scene and took her home. She attended the emergency section at St John of God's Hospital in Murdoch but left because of the long queue.
The next day the plaintiff consulted a Dr Harris of the Point Walter Medical Centre and a week later his colleague, Dr Barrett of the same surgery. She was prescribed pain-killers and referred to a physiotherapist. The plaintiff says that at the time she was experiencing pain in the right arm, tingling in her right hand and bruising and neck pain. She changed doctors a week or so later and consulted Dr Smyth at the North Lake Medical Centre. This was because she had previously used this surgery. Dr Smyth referred the plaintiff to physiotherapy and to Mr Desmond Williams, orthopaedic surgeon. The plaintiff attended Mr Williams who prescribed anti-inflammatories and pain-killers.
Mr Williams also referred the plaintiff to Mr John Annear, physiotherapist. Mr Annear treated the plaintiff by what was described by the plaintiff as lazer treatment. However, she claimed that 5 to 10 minutes after each appointment at Mr Annear's rooms, she would experience "horrendous pain". Mr Annear in turn referred the plaintiff to a colleague, Mr Graham MacKay‑Coghill. Mr MacKay-Coghill treated the plaintiff by strapping the right shoulder, but the plaintiff stated in her evidence that this caused "excruciating pain".
The plaintiff says that at about this time she commenced to experience swelling in the right arm and hand and also her right hand became cold. The plaintiff was referred to Professor Will (rheumatologist) who recommended aqua therapy, but the plaintiff found this caused delayed but unbearable pain. Professor Will diagnosed the plaintiff as having "Complex Regional Pain Syndrome". Professor Will prescribed medication but unfortunately the medication had opiates in it to which the plaintiff was found to be allergic and the medication made her ill.
The plaintiff was referred to Dr Phillip Finch, pain specialist, and he referred her to Mr Peter Drummond for sensitivity testing of the right arm and hand. Dr Finch prescribed a Ketamine pain block, firstly in the form of a Ketamine lozenger which made the plaintiff drowsy, and then later a Ketamine cream which she rubbed into her arm and leg.
The plaintiff also described in her evidence daily headaches which often developed into severe migraines.
The plaintiff also says that she became depressed and was sent to Karen Goodall-Smith, psychologist, who instructed her on relaxation techniques and gave her someone to talk to.
The plaintiff was also referred to various specialists by the Insurance Commission of Western Australia, for medical/legal assessment.

(c) Present symptoms

The plaintiff described her present symptoms as being:
(1)Swelling in the right arm with sweating and a change in temperature to the right hand;
(2)Sharp pain on movement or touching of the right arm;
(3)Pain into the area of her right chest;
(4)Sensitivity to touch of the right arm;
(5)Stiffness in her neck and headaches (including sometimes migraines);
(6)Depression;
(7)Pain in the right leg causing a limp.

(d) Changes in lifestyle

Before the accident, the plaintiff described herself as an active person, working part-time four days a week and walking with a friend three times per week. She also attended Tai‑Bo (similar to kick-boxing) once a week. After the accident, she has been unable to continue with her walking exercise and Tai‑Bo.
The plaintiff complains that her symptoms effectively curtail all of her daily activities. The plaintiff has two teenage children who were born in 1991 and 1992 respectively. She says that before the accident she was actively involved in the organisations conducting the sporting activities of the children and also helped at her daughter's netball training. She says that since the accident she has been reduced to simply transporting the children to and from sporting activities. She says that she stays and watches their sporting activities on the weekends.
She says that her domestic activities have been substantially reduced. Most domestic activities in the house are now performed by her husband and her children. Her husband does the cooking, vacuuming, making of the bed, washing and gardening. The children also contribute.
She says that she rarely goes out with friends on social activities and her social life is pretty much confined to going out with her children to restaurants. She says she no longer goes on picnics on a regular basis which she previously did with family and friends. The plaintiff says she has become irritable and depressed and this has affected her relationship with her children. Further, the physical side of her marriage has deteriorated due to the pain in her right side. She says that she cannot hug or be hugged. She says that when she sleeps at night she has to position herself on the bed as far away from her husband as possible so as to avoid contact.
The plaintiff says that from about April 2005, she started to experience pain in her right leg causing her to limp. These symptoms vary. She says that she does not limp all the time. She says some days she wakes up with a sore leg and other days it is caused by walking. She says she tries to walk as normally as possible because the limp causes her embarrassment.
The plaintiff says that she still drives a motor vehicle but must use her left hand only on the steering wheel. She mainly drives an automatic Jeep Cherokee vehicle which has power steering. She says she uses her left foot to operate both the accelerator and the brakes. The indicator on the Cherokee is on the left‑hand side of the steering wheel, and most of the other controls are on the steering wheel. She has now had fixed to the steering wheel, a steering knob to assist her. She also drives her husband's Subaru vehicle. This is also an automatic vehicle with power steering. She says the indicator is on the right‑hand side of the steering wheel, but she has been able to adapt.

(e) Employment

The plaintiff completed High School in 1985, graduating with TAE. She says she was accepted to university but decided instead to commence employment with Westpac Bank. She married in 1989 to her present husband. She continued working until just before her son was born in 1991.
In 1994 she decided she would commence studying to be a home economics teacher and enrolled at the Edith Cowan University. In 1997 she graduated with a Bachelor of Arts in Teaching with honours. In early 1997 she won a scholarship of $10,000 to assist her with her final year of her course.
After graduating she obtained employment at the Lumen Christi College. She was on trial for the first year and then obtained permanency. She started working 2 to 2 ½ days per week. The hours depended on the class scheduling and when she was available. The hours gradually increased and at the time of the accident, she was working about four days per week. With experience, her classification would have increased and she would have been entitled to pay increases.
She intended to work full-time after her two children commenced High School when she would no longer need to drop them off and collect them from school (the High School was a short distance from their home). Ultimately, she hoped to obtain a position as a Learning Area Co‑ordinator within the school, but primarily wished to remain involved in active teaching.
After the accident she had two to three weeks off work. When she returned to work she found that she could not cope and she was in constant pain. She was often reduced to tears in the staff room. She tried to complete the year but eventually she was unable to do so and stopped work. She has not worked since.

(f) Medication and ongoing treatment

She is currently taking a variety of medication –
(i)A nasal spray Imigran which is taken for headaches.
(ii)Serapax which is a sleeping tablet.
(iii)Gabapentin (also known as Neurontin) for pain‑killing.
(iv)Efexor which is an antidepressant.
(v)Advil which is an anti-inflammatory and is taken by the plaintiff for pain and headaches.
(vi)Ketamine cream which reduces the plaintiff's sensitivity to touch and enables her to wear long sleeve clothing in colder weather.
She continues to see Dr Finch, Professor Will, Dr Smyth and Karen Goodall‑Smith on a regular basis.

Cross‑examination of the plaintiff

The plaintiff was subject to a long and searching cross-examination over a three day period.
Whilst in the witness box, the plaintiff held her arm in a cradled position against the right side of her body. At one point at the request of the defendant's counsel, she showed me her left and right hands. She claimed that her right hand was of a different colour to her left hand but not pronounced at that particular time. I observed the hands and although there was a minimal colour difference, I did not believe that it was any different to a normal presentation. I also noted that in her left hand she had been gripping a tissue and this might have accounted for any difference in the colouration of the two hands.
The plaintiff was cross-examined at length about her instructions to various medical experts, in particular, the three medical specialists relied upon by the defendant, being Dr Alex Cohen, Professor S S Gubbay and Dr Flahive.
Although overall I conclude that the plaintiff is an honest witness, I felt that some of her answers were somewhat contrived during the cross‑examination. Perhaps this is understandable considering the length of the cross‑examination and the fact that her credibility was under attack.
She oddly did not concede that the videos in the shopping centre were consistent with her presentation in the doctor's surgery, taking the somewhat argumentative point that she did move her right arm in the doctor's surgery more than in the shopping centre videos because she was directed by doctors to do so to test the extent of her movements. She explained that she was not prevented from moving her right arm but it caused pain and hence she normally carried her right arm in the cradled position as shown in the surveillance films.
She was defensive of her presentation in the shopping centre videos on the basis that she must have been having bad days. In response to questioning about films which showed freer arm movement, she stated that she has never said she was paralysed in the right arm and that she has good days and bad days. Further, she said that after the movement she would experience pain later.
It was suggested to her that because of her husband's occupation she was conscious of the fact that it was likely she would be under video surveillance and that she modified her behaviour to make her disabilities look worse. In particular, that in the shopping centre videos she walks slowly and after April 2005, with a deliberate limp. Further, she held her arm in a cradled position and made sure she only used her left arm. In relation to the home videos, it was suggested that when she stepped away from the front door and came out into the front yard, she modified her behaviour by placing her arm in a cradled position and used her left arm only. The plaintiff denied these suggestions and became visibly upset in the witness box.
The plaintiff also gave evidence that she only drove when she had to, but conceded that she often drove several times a day, and often in the company of her mother who drives as a passenger. She also drove on occasions when her husband was a passenger, but she claimed that this only occurred when he was unable to drive such as when he had consumed too much alcohol.
The plaintiff was cross-examined at some length about her instructions to the various specialists, and she disputed some of the things that the doctors recorded in their notes. She stated that in her opinion such examinations ought to be independently recorded. In my opinion the plaintiff makes a valid point that in such medical/legal examinations, the instructions of the person being examined should be somehow recorded. In fact, where an examination is taking place for medical/legal purposes, I see no reason why such an examination should not be video‑recorded so as to remove the dispute that often arises as to what the claimant's instructions were to the doctor, and what movements he or she observed.

I will now return to the earlier critical evidentiary issues identified by me earlier in this decision.

Is the extent of movements demonstrated in the home videos consistent or inconsistent with the plaintiff's presentation to medical practitioners?

To answer this question it is necessary to examine the evidence of how the plaintiff presented to the medical practitioners, in particular to the medical practitioners who were treating her.

Dr Phillip Finch

The plaintiff was referred to Dr Phillip Finch in November 2003. Dr Finch practices as a pain specialist and specialises in dealing with patients suffering from Complex Regional Pain Syndrome. He diagnosed the plaintiff as suffering from Complex Regional Pain Syndrome and this diagnosis was not seriously challenged by the defendant in cross‑examination.
In a report dated 25 November 2003 Dr Finch stated as follows:
"She had exquisite allodynia to mechanical stimulus throughout the whole of the right forequarter and, interestingly, over the right forehead as well. Her cervical range of movement was reduced, especially left lateral flexion of which she could only achieve about 50% of range. She had exquisitely sensitised and tender nerve roots in the right cervical region. She was tender over the cervical facet joints on the right, especially C4/5 but other adjacent levels to a lesser extent. There was wasting around the right shoulder girdle, especially over the supra and infraspinatus. She was exquisitely tender over the anterior capsule of the right glenohumeral joint. She could only abduct the glenohumeral joint about 45° from the vertical.
…"
In a subsequent report dated 29 November 2006 (following an examination on 15 November 2006), Dr Finch described the plaintiff's movements as follows:
"I examined your client finding that she is a depressed lady favouring the right lower limb in her gait and holding the right upper limb somewhat adducted to her trunk. In the cervical spine there was a reduced range of movement and she was tender over a number of right cervical facet joints. I noted that the right shoulder was depressed in posture and she could abduct the glenohumeral joint to 45 degrees. Internally she could rotate to the L5/S1 segment posteriorly in comparison to the left which she could internally rotate to the T5 thoracic segment. She was tender over the anterior capsule of the joint.
She was unable to fully flex her right elbow and was unable to fully extend the fingers of her right hand. The right hand was approximately three degrees cooler than the left when measured with an infrared device. There was a mild reddish dyschromia but no observable swelling. The right hand was distinctly sweaty compared to the left. I noted allodynia (sensitivity to mechanical stimulus) over the whole of the right forequarter which includes the right arm and the chest. Of great interest to me is that there is allodynia over the right forehead, hyperaesthesia to sensory stimuli over the whole of the right forequarter and hypoaesthesia over the right forehead. There was weakness of flexion of the fingers of the right hand, a mild tremor and possibly mild wasting in the right forearm."
Dr Finch was shown by the plaintiff's solicitors, surveillance film of the plaintiff disclosed by the defendant's solicitors which included a portion of the shopping centre videos and a small portion of the home videos. The portion of the home videos was meant to be representative of the extent of movement shown by the plaintiff in the home videos.
He concluded in a report dated 1 March 2007 as follows:
"I have now had the opportunity to view a second lot of surveillance footage. This surveillance has time and date inscribed on it and is said to have been taken on 21 December 2004. Mrs Tonkin can be see (sic) in a shopping centre and in almost all of the sequences her right arm is held in a most abnormal position. In fact the footage at 10.05.18 very nicely shows the problem with her right upper limb which is held elevated and adducted to the chest.
I have also had a further look at the previous surveillance footage which does not have time and date inscribed. Most sequences are repeated twice with enlargement on the second of the sequences. I looked at segments 1, 2, 10 and 18. Mrs Tonkin can be seen clearly limping in segment 10 and pulls a roller door down with her left upper limb. In segment 18 the sequences are doubled and these show Mrs Tonkin to be holding her right upper limb in a most abnormal fashion abducted to the trunk across her chest or holding her right shoulder. She is also seen to limp in one sequence.
I consider both the surveillance DVDs clearly show that your client has a significant problem with both the right upper and right lower limbs."
In his evidence, Dr Finch stated that the plaintiff's right upper limb was not paralysed. He believed that she could hold keys and she might be able to push a car door shut.
Dr Finch further stated that the condition of Complex Regional Pain Syndrome can spread from the shoulder down to the lower limb and he had observed this with the plaintiff.
Under cross-examination, Dr Finch stated:
(a)He agreed that the diagnosis of Complex Pain Syndrome was difficult to make and that it is difficult to predict the prognosis of the condition.
(b)He felt the movements shown in the videos were compatible with her condition in his rooms.
(c)He accepted that a comparison of the shopping centre videos and the home videos created some doubt as to the extent of the Complex Regional Pain Syndrome suffered by the plaintiff but not whether she had the condition.
He stated that it is possible for the plaintiff's condition to vary from day to day, and the fact that she used her arm in the manner shown in the home videos does not necessarily negate the extent of her disability. He conceded that if she is shown, over a long period of time, to have freely moved her right arm then it is possible that she is more capable than she had indicated to him. If there were freer movements than indicated to him, then possibly this meant the prognosis was better than originally thought.
He conceded that the plaintiff might possibly be overstating her condition but that was a credibility issue for the Court to determine on all the evidence. However, he stated that in his opinion, 99 per cent of the home videos seen by him were consistent with her presentation to him. Occasionally she did the odd inconsistent thing.
He stated that persons suffering from Complex Regional Pain Syndrome held their limb in a protective position to protect it from pain due to movement and being bumped but they could still use their limb.
In re-examination, he stated the condition can vary notoriously from day to day and week to week.

Associate Professor Rob Will

Associate Professor Rob Will (Dr Will) is a rheumatologist, to whom the plaintiff was referred to by her general practitioner.
In a report dated 17 December 2002, he described her symptoms as follows:
"Her pain has rapidly increased since the accident and particularly involves the right face, neck, shoulder and upper limb. All activities aggravate this. Hanging the right upper limb provokes her symptoms. Attempting to elevate the arm she finds impossible and has had to give up any work writing on blackboards or whiteboards. She is unable to vacuum for more than a few minutes. She has a better tolerance with cooking."
He reported on his examinations as follows:
"She was tender on palpation over the right side of her neck both anteriorly and posteriorly extending into the right trapezial muscle and diffusely into the right upper limb. Any stretching movements of the right upper limb aggravated her symptoms. Neck movements particularly left lateral rotation and left lateral flexion were painful. Neurological assessment of the upper limbs demonstrated normal power and deep tendon reflexes. Sensory testing to pin prick demonstrated a dull sensation extending from the right shoulder down the right upper limb. A cold sensation was felt as warmer over the right upper limb compared to the left and a vibration stimulus was not picked up quite as well as the right hand compared to the left. The right upper arm and proximal forearm was cooler than the left on palpation."
He concluded that:
"She presents with a rather classical neuropathic pain syndrome involving the right neck, shoulder and upper limb with clinically some temperature changes. The exact site of the pathology is unclear."
In a report dated 6 October 2003, he reported the plaintiff's disabilities as follows:
"The Insured has much difficulty with dressing herself and some difficulty with lifting a full cup to her mouth and opening a new carton of milk. She has much difficulty with washing and drying herself and she is unable to reach and get down a 5lb object from just above her head and has much difficulty with bending down and picking up clothing from the floor. She has some difficulty with opening car doors, opening jars which have previously been opened, and turning taps on and off. She is unable to undertake vacuuming, housework or light gardening."
In a report dated 8 March 2007, after viewing samples of the home videos and the shopping centre videos, he concluded as follows:
"My general impression of review of these recordings of Mrs Tonkin were as follows:
1.The images of the recordings of the subject at times were poor and it was my assumption that this was the subject in question. The recordings in particular of her standing in her front garden and driveway were of poor quality. There was a consistent pattern with all of the recordings that she demonstrated relatively little use of her right upper limb. There was certainly some movement at the elbow but relatively limited movement at the right shoulder. At no time would she have flexed the abductor of the right shoulder more than 90 degrees. She generally tried to protect her right upper limb. She frequently avoided using her right upper limb, and would use in preference her left upper limb. This included carrying a shopping bag, lifting shopping bags and closing car doors.
2.I particularly reviewed the recording titled 18. It was difficult to determine the separation between the different titles however this period of recording lasted for about 11 minutes 25 seconds. It was clear that this duration of recording was in fact duplicated during this period with the same recording copied and zoomed. This patient demonstrated some movement of the right upper limb during this recording whilst she appeared to be holding a mobile phone in her left hand. She at times was bringing her right hand to her face and moving her right arm whilst speaking into the mobile phone ? in the left hand. She did not however, demonstrate much movement, as I have indicated above, of the right shoulder."
In his evidence, Dr Will stated that Complex Regional Pain Syndrome was a specific sub‑category of neuropathic pain. Typically, persons who suffer from Complex Regional Pain Syndrome, experience a change in temperature in the affected area. These changes of temperatures were experienced by the plaintiff, Ms Tonkin.
He further stated that the condition of someone suffering from Complex Regional Pain Syndrome can vary from day to day. Often, activity on a particular day will cause pain the next day. Having watched the sample of home videos given to him, he thought that the range of movement was consistent with what he thought she could do.
Under cross-examination, he conceded that over a period of time he had been treating her, he did not repeat examinations as to the extent of movement, and normally just tested her grip strength.
When questioned about the level of pain experienced by the plaintiff, Dr Will stated that the plaintiff told him that pain was particularly provoked by extreme movements of the arm. He conceded that over the years he had been treating her, he had accepted her word that she had not improved. He stated that generally she presented as someone with substantial pain, so that while there were variations, she still had substantial pain. On being shown a home video dated 24 September 2006, he rejected the proposition put to him that the right hand being used to close a car door was inconsistent with her presentation to him. He stated that patients with this condition are still able to use the limb on occasions, and it varies from day to day.
He did not believe that you could make a medical assessment of the plaintiff's disabilities by watching the surveillance videos. He stated that what is required to assess the level of function is a more detailed assessment, including an assessment of the person's ability to exert pressure and their strength.

Ms Karen Goodall-Smith

The plaintiff was referred to Ms Karen Goodall-Smith, a clinical psychologist, who first saw the plaintiff on 11 April 2003, and has continued to review the plaintiff on a regular basis, seeing the plaintiff on average about once every three to four weeks.
In an initial report dated 20 June 2003, Ms Goodall-Smith described the plaintiff as suffering –
(a)mild symptoms of Post Traumatic Stress Disorder;
(b)an adjustment disorder with associated anxiety and depression due to her pain and significant changes to her lifestyle;
Various reports of Ms Goodall-Smith were tendered into evidence. In none of these reports is there a detailed description of what the plaintiff can and cannot do physically. This is understandable as the reports focussed on the plaintiff's mental condition. The reports do state that the plaintiff's physical symptoms fluctuate, she is incapacitated due to migraine headaches and that the situation has deteriorated over time.
In a report dated 28 November 2006, Ms Goodall-Smith stated as follows:
"She frequently gets severe headaches and she finds it more and more difficult to do any normal activities because of the restrictions caused by her arm."
There is nothing in the reports stating the plaintiff is unable to do any of the movements shown in the home videos and relied upon by the defendant.
In her evidence, Ms Goodall-Smith stated her impression was that the plaintiff "hasn't used her arm much at all. She has tended to use her left hand more. Occasionally she will do a gesture or whatever with her right arm but usually not a big gesture" (T 135).
Ms Goodall-Smith stated in cross-examination that she had seen a recording of the plaintiff using a telephone in her right hand (which I assume was extracted from the home video taken on 14 October 2006) but did not think this was anything that she had not seen before in terms of movement of the plaintiff's right arm. She admitted that she had never seen the plaintiff use her right arm in what could be described as a free fluid movement or lift her right shoulder up.
She stated that although the plaintiff had complained that she could not use her arm for various functions, she did not claim it was absolutely useless. Ms Goodall‑Smith also emphasised that a person in a medical examination or treatment environment is unlikely to move about to the same extent when they are at home or going out. In the medical room a patient tends to sit still.

Dr Louise Smyth

Dr Smyth, who was the plaintiff's treating general practitioner was also called to give evidence.
Her evidence was that in her opinion, what she saw in both the shopping centre videos and the home videos, was consistent with the plaintiff's condition and her presentation in her treatment rooms.
She described the plaintiff as generally holding her right arm in a protective position close to her body, but this did not mean that she was prevented from using the arm. At times she would use her right arm reflexively. She also said that the limp experienced by the plaintiff varied from day to day. She stated the plaintiff has good days and bad days. She emphasised that the plaintiff was not a moaner, and she believed the plaintiff was doing her best to cope with her disabilities.
Under cross-examination she stated that the plaintiff holds her right arm consistent with someone having adopted this position to avoid pain rather than because she could not use it. Accordingly, if she moved her right arm to brush her hair etc, this could not be considered to be that abnormal. She stressed that the more you forced movement of a person with this type of disability the worse it could become.

Mr Graham MacKay-Coghill

In December 2002 the plaintiff was examined by Mr Graham MacKay‑Coghill, a physiotherapist who specialises in shoulder injuries.
In a report addressed to his physiotherapy colleague Mr John Annear and dated 2 December 2002, Mr MacKay‑Coghill stated as follows:
"On physical examination the shoulder girdle is certainly protracted with significantly anteriorly translated humeral head. There is significant atrophy over the shoulder girdle region, particularly the upper trapezius as well as infraspinatus and posterior deltoid. Shoulder active range of motion is grossly limited in all planes of movement by a generalised shoulder pain. External rotation is limited to approximately 25°, however if left side flexion is applied she can only externally rotate to approximately 10°. Hand behind back is permissible to L5/S1 vertebral segment and shoulder flexion to approximately 70°."
Perhaps of some significance, Mr Graham MacKay‑Coghill further stated in his report as follows:
"John, unfortunately I don't think we are going to improve things in the short term. I have explained to Lana that this is a condition that is 'nerve causing' and I have strongly recommended that she performs no activities into pain whatsoever. It may be worthwhile that Lana visits Rob Will who specialises in these types of conditions as I think she may be better off on a cocktail of Gabapentin and Vioxx." (my emphasis)

Dr Danny Shub

The plaintiff was referred by the defendant's insurers to Dr Danny Shub, a psychiatrist, who first saw the plaintiff on 25 February 2004. He concluded that the plaintiff suffered from a Major Depressive Disorder and Post Traumatic Stress Disorder.
In a report dated 9 August 2004, he recorded the plaintiff's restrictions as reported by her as follows:
"She is only able to involve herself with light household duties which involve her left arm.
Mrs Tonkin stated that she attempts to undertake as many household duties as she is able to within the constraints of her physical symptoms – and has been essentially limited to relatively light duties.
She is able to organise some shopping – but again has difficulty lifting, and is therefore restricted to limitations in this activity as well.
Essentially, she remains significantly restrained with respect to her occupational, recreational, and social functioning.
She has felt particularly frustrated regarding these limitations – and cited an example involving cooking (one of her particular interests) in which she has difficulty preparing food, and experiences pain and discomfort whenever she attempts to cut items of food, or involve herself in any other types of preparation – for example, lifting objects, and any type of skills involving coordinating both hands."
In his report dated 12 July 2006, Dr Shub described the plaintiff as being globally restricted with her social, recreational, domestic and occupational functioning. He further stated that in his opinion she was not fabricating her symptoms. In his evidence in court, he further endorsed this conclusion.
Under cross-examination, he was shown extracts from both the home videos and the shopping centre videos. He stated that the plaintiff's presentation in the shopping centre videos was consistent with her presentation in his rooms. On seeing an extract from the home videos, he believed that the extent of the plaintiff's movements appeared to be inconsistent with the extent of her movements during the shopping centre videos and more than he probably would have expected from the instructions given to him by the plaintiff. However, he did not believe that the home videos directly contradicted her account which was that she had difficulty moving her right arm. He agreed that her movement in the home videos was different to his initial impression because he had the impression that she possibly was more restricted, but she never suggested to him that she could not move it at all.

He accepted that because of the extent of the movement in the home videos, it raised doubts about his overall diagnosis and prognosis. He stated that ultimately it was a matter for the court to determine the plaintiff's credibility.

Dr Martyn Flahive

The plaintiff, Mrs Tonkin, was referred by the defendant's insurers and its solicitors to Dr Martyn Flahive for a medical/legal assessment. Dr Flahive is a specialist occupational physician and his area of speciality relates to the management of injuries with a view to returning people to work. He is used by employers, general practitioners, lawyers, insurers, workers' compensation insurers, the Insurance Commission of Western Australia and Risk Cover.
Dr Flahive saw the plaintiff on three occasions – 19 May 2003, 17 July 2006 and 15 December 2006.
In a report dated the 22 May 2003 Dr Flahive reported as follows:
"On examination of the right shoulder she was only able to actively abduct to 20°, flex to 20°, extend to 20°, external rotation was 60° and internal rotation was 90°. She was able to place her hand behind her back with her thumb reaching the buttock area.
I was unable to test the full range of passive movement as Ms Tonkin appeared to be hypersensitive to touch anywhere around the right arm and shoulder. She also had loss of range of elbow movements and was only able to move from 60° to 110° and her wrist movement was also limited with her being able to flex the wrist to 20° and extend to 30°. She was unable to fully straighten her fingers but was able to fully flex the fingers."
In a report dated 24 July 2006 Dr Flahive reported on his examination as follows:
"On examination of the right shoulder she was only able to actively flex to 20°, extend to 20°, abduction was 10° to 20° and she was only able to externally rotate with her arm at her side to 20 to 30°. She was only able to internally rotate with her thumb reaching the mid thigh with her unable to touch her buttock.
Passive movements were fifty to seventy percent less than her active range of movement and I was unable to assess glenohumeral movement with her reporting hypersensitivity to touch around the right arm. She also had marked restriction of movement in her elbow with her being unable to full extend and having what appeared to be a fixed flexion deformity of 60° (normal 0°). She was able to actively flex to 120° (normal 150 to 160°). Her passive movements were more restricted with her only able to extend her arm to 70° and flex to 100°.
She also had marked limitation in her right wrist movements with flexion to 30° and extension to 30°. Her finger movements were also limited, although this was more inconsistent on closer examination. She was only able to make a fist with her fingertips reaching 1cm from the palm and 10 to 20° loss of extension of her metacarpal, distal and proximal interphalangeal joints."
In a report dated 8 January 2007 Dr Flahive reported the extent of the limitations of the plaintiff's right arm as follows:
"She again had quite limited right shoulder movements with only able to active flex to 30° abduct to 55°, extent to 25°. She was only able to rotate with her thumb reaching to mid to posterior thigh and external rotation was to 50°.
She had limited elbow movements and was only able to flex and extend to 50° to 135°. Wrist and ankle movement is also quite limited with only able to flex and extend to 50° and abduction and adduction is limited but not able to be fully assessed. She had reduced finger flexion and extension which was not measured but I have appended photographs with her demonstrating her reported range of finger movement."
It is clear from these reports that Dr Flahive noted a greater limitation of movement of the right shoulder in his examinations on 19 May 2003 and 17 July 2006 then assessed by Dr Finch and Mr MacKay‑Coghill. However in the last assessment on 15 December 2006 the degree of limitation was closer to that noted on examination by the plaintiff's doctors (for example, he found abduction was to 55 degrees).
Following the first examination on 19 May 2003, Dr Flahive did not observe any inconsistencies in Mrs Tonkin's presentation and agreed with the conclusion that she suffered from Complex Regional Pain Syndrome.
However, Dr Flahive in his subsequent report dated 24 July 2006 noted what he considered to be a number of inconsistencies in the plaintiff's presentation:
(a)She looked down at the scale when being weighed and turned her head when she said goodbye which suggested greater movement of the cervical spine than she demonstrated on formal examination (the plaintiff disputed these movements);
(b)He was unable to elicit any temperature differences between the left and right arm except for a slight coolness over the fingertips of the right hand;
(c)He was unable to observe any muscle wasting in the right shoulder or right arm;
(d)There was an inconsistency in the right hip and right knee movements between what was ascertained on formal examination and informal examination.
In his report he concluded:
"Certainly I have some difficulty in accepting her reported level of disability on the basis of her objective findings and the inconsistencies between formal and informal examination do suggest that there may be other factors that are modifying her current presentation (my emphasis).
It remains possible that Ms Tonkin did sustain a soft tissue injury to her right shoulder and cervical spine as a result of the motor vehicle crash and this may have resulted in a degree of adhesive capsulitis and possibly Complex Regional Pain Syndrome. However, I am of the opinion that these diagnoses do not support the extent of her current presentation or explain the inconsistencies between the objective and subjective disability."
After reviewing the plaintiff on the third occasion, Dr Flahive in a report dated 8 January 2007 concluded as follows:
"I remain in the opinion that there are inconsistencies between the objective findings on examination and her reported subjective disability. In particular, she has a low tolerance to touch over the whole of her arm yet is able to both touch her arm herself and lean against her arm and can pick up a pen with a little difficulty to sign her name.
Additionally, there are distinct discrepancies between her reported and actual range of movement on examination with only being able to flex her right knee to maximum 80° and her hip to 40° she had a little difficulty with her hip at 90° and her knee at the 90‑100° when sitting.
Given that there remains some lack of clarity with her diagnosis, it would be appropriate for her treating practitioners to consider other possible explanations for her presentation including functional overlay or possibly a somatisation or conversion disorder."
Dr Flahive was later sent by the defendant's solicitors extracts from the shopping centre videos and the home videos.
In a report dated 12 January 2007, he stated as follows:
"The home images did show some consistencies with her presentation in respect of her preference to predominantly use her left arm. However in respect of the 'home images' what appears to be at unguarded moments her right arm movements that are observed to be normal.
The home images in particular demonstrated that she has a significantly greater range of right shoulder movement and a normal range of right elbow movement and an ability to use and move the right arm for a number of tasks. Therefore the 'home images' are essentially not consistent with her presentation or the shopping centre video.
…
Following reviewing the 'home images', I am of the opinion that her presentation at my review has not been an honest presentation of her right arm movements, inability to weight bear on her right leg, or her level of disability.
In my view, Ms Tonkin has exaggerated her level of disability and is able to move and use her arm more freely than she claims or presented to me.
This ability would reconcile the discrepancies between the objective findings and her subjective disability and the marked lack of signs that would be expected with such a severe level of disability.
As I have indicated one would expect a fairly consistent level of disability with complex regional pain syndrome in addition to the presence of some objective signs which I have been unable to find on examination. Additionally there appears to be significant discrepancies in her observed capabilities."
In his evidence, Dr Flahive stated that in his opinion the presentation of the plaintiff in the shopping centre video was fairly consistent with her presentation in his rooms. He said there were minor inconsistencies which were similar to the inconsistencies he noted when she was in his rooms.
In relation to the home videos, he stated that in his opinion there is a significant difference between the reported level of disability and that demonstrated. He stated the plaintiff has a significant range of movement of the right arm and no evidence of limping. He stated that the "home videos really couldn't show any evidence of any sort of loss of function and I believe, from what I could see, there was no limp there and she seemed to be able to – at times – use her right hand in a fairly normal manner on a few occasions" (T 484).
In cross‑examination Dr Flahive did concede that the plaintiff had gained weight between the two consultations of 9 May 2003 and 15 December 2006, which was consistent with inactivity from ongoing symptoms as claimed by the plaintiff.

Professor S S Gubbay

The plaintiff was referred also to Professor S S Gubbay, a well known neurologist, by the defendant's solicitors.
Professor Gubbay examined the plaintiff on 15 August 2006 and in a report dated 15 August 2006 stated as follows:
"There was limitation of abduction of the right shoulder to forty degrees with relatively poor internal rotation and almost a full range of right external rotation."
Later in the report Dr Gubbay concluded as follows:
"… I do not deny that Mrs Tonkin does have Complex Regional Pain Syndrome Type 1 as diagnosed by a number of people, including my neurological colleague Professor Burns, as well as Dr Finch and Dr Will. However, the disparity between the severity of her symptomatology and her overall presentation as opposed to her reported ability to carry out certain activities well, strongly suggests that the degree of disability is not commensurate with her own subjective description of the extreme pain syndrome from which she suffers."
The plaintiff was further assessed by Professor Gubbay on 30 November 2006.
In a report dated 30 November 2006 Dr Gubbay reported his impressions as follows:
"Once again, I found it difficult to reconcile the degree of her reported disability of hypersensitivity of the right side of her body, especially arm and leg, with her reported ability to carry out many of her activities of daily living. I watched her taking off her upper garment and put it back on again and saw that she did need to use the right hand to take hold of the left side of the coat to bring it up her arm and she seemed to do this with reasonable facility. Apparently she does drive her car on average of one hour per day and seems to be able to do so according to her own statement with reasonable facility. She does not think that her ability to drive her car is significantly compromised from the point of view of safety, which once again is difficult to reconcile to the type of disturbance which she has explained is troubling her on the right side of her body, especially the arm and leg.
There are certain inconsistencies that I have explained, including the right lateral rotation of her neck when she was demonstrating the dimple in her right posterior deltoid, and the great variability in the depression of her right shoulder at certain times of the consultation compared to my physical examination of her shoulder during the time in the examination room.
It was difficult for me to understand how a person with Complex Regional Pain Syndrome starting in the right upper limb should end up with the symptomatology affecting the whole of the right side of the body including face, head, neck, arm trunk and leg, especially when there was very little to find in the way of objective abnormalities. Actually she did have some slight pallor of the skin of her right hand at one stage and she did have increased sweating of the right palm and sole, but there was no discoloration of the right foot or lower limb. The right hand was a little cooler than the left and the right foot was definitely cooler than the left. There were no trophic changes in the skin of her right side, particularly the hand and foot. These minimal changes were extremely difficult to reconcile with the gross subjective symptoms, which in any case could well be the result of disturbance of autonomic tone in the right upper limb through disuse. From what I can gather, there has been a gross lack of use of the right upper limb, whether or not it is the result of painful limitation of movement. She is obviously not prepared to try to mobilize the right upper limb or right lower limb any more than she now does because it causes too much pain.
These conflicting findings do leave significant doubt in my mind as to how much of the problem is of organic origin and how much is due to overlay."
Professor Gubbay was presented with extracts from the shopping centre videos and the home videos. In a report dated 15 January 2007, he stated as follows:
"The 'shopping centre video' was not particularly helpful in sorting out the problem further because there was a fairly consistent lack of use of the right upper limb. However one could also see for certain that the facility with which she did occasionally use the right arm, the episodes of relatively normal walking, and the fact that her shoulders were usually level, did provide a significant contrast to my two clinical examinations. In my examinations of her clinically the degree of disability was significantly worse, but there was also a significant element of doubt even after looking at the video, that there could have been a degree of disability in her right upper limb even though there was likely to have been an element of exaggeration of the degree of subjective disability during the time of my examinations.
The appearances that were demonstrated in the 'home images' were quite a different story. Although she often kept the right arm in a semi-flexed posture reminiscent of the postures that were seen at the time of my consultation and also in the 'shopping centre video' she was often able to use the right upper limb in an unrestricted fashion. The gross disparity between many of the scenes when she was using her right upper limb in an unrestricted fashion, which had been described earlier, are quite at variance with the less obvious ability to freely move her right upper limb in the 'shopping centre video' and certainly in my consulting room examinations of August and November 2006.
This gross disparity between the 'home images' and particularly my physical examination, to me, are a clear indication that there is a significant degree of functional overlay to the point where one is obliged to doubt the veracity of Mrs Tonkin's complaints. It was not possible for me to reconcile the degree of disability which she describes subjectively and the degree of disability which she exhibited at the time of my examination to the relative lack of disability in many of the segments of the film that were demonstrated to me on the 'home images'."
Professor Gubbay stated in his evidence that movements which he thought were inconsistent with the plaintiff's presentation in his rooms were shutting a car door, picking up clothing off the ground or putting something on the ground with her right hand, adjusting her hair with her right hand, gesticulating with her right hand when on the phone, adjusting clothing whilst talking on the phone, opening and closing the front security door with her right hand, removing items from rear of vehicle with her right arm and walking with a good gait.
Professor Gubbay further stated that the movements observed in the videos did not mean that Mrs Tonkin was not experiencing at least mild or a moderate degree of pain, but he believed that the movement eliminated that she suffered excruciating pain.
He stated in cross‑examination that he found that the plaintiff's instructions that she used her left arm and left leg for driving surprising. He felt she must be using her right hand to help her steady the steering wheel. He agreed his diagnosis was influenced by the fact that he believed that she must be using her right hand for driving.
He stated that she may well have Complex Regional Pain Syndrome but if she does, it is not as severe as she has described.
He agreed that a person with Complex Regional Pain Syndrome experiences symptoms which vary from day to day.
He stated that both the nature of the movements and the frequency of the movements in the home videos were relevant factors, but even movement on one occasion was important in forming an opinion as to the extent of the plaintiff's disabilities.

Dr Alex Cohen

The plaintiff was also referred by the defendant's solicitors to Dr Alex Cohen, a clinical professor of medicine. He is a general physician with a particular expertise in diabetes and a foremost endocrinologist.
Dr Cohen examined the plaintiff on 10 July 2006 and 20 November 2006.
The letter of referral by the defendant's solicitors to Dr Cohen is of some concern. It contained material which was not supported by any evidence before me, and which by its nature, appeared to seek to influence the conclusions reached by Dr Cohen in his assessment of the plaintiff. Fortunately, Dr Cohen did not appear to be influenced by these unsubstantiated prejudicial comments.
In his report dated 13 July 2006, he reported the plaintiff's symptoms as follows:
"The whole of the right upper quarter of her body is affected by constant pain varying in severity. The major pain is in the right shoulder region radiating down the arm and into the hand. There is also pain radiating up into the neck and into the right side of the face. There may be pain behind the right eye causing photophobia and some 'puffiness' but not lachrymation. Sometimes this pain may radiate down the right lateral thorax to beneath the breast. When present behind the eye, in the forehead and right side of face she has been considered to have migraine and a specific medication Imigran is helpful.
All movements of the arm intensify her discomfort extending into the act of walking because of her inability to naturally swing the arm in motion. The pain is somewhat ameliorated during sleep because of the medications that she takes but she sleeps poorly and is always tired, partly as a consequence of the persisting effects of those medications. She is unable to lie on the right side and wakens with pain.
The right hand is subject to intermittent swelling, sweating and colour change but is constantly painful. Use of the hand is limited in day to day domestic activities and in such functions as writing and any fine manipulation. She has received treatment from the hand specialist Judith Wilton but has been quite unable to wear the splint made for relief because anything exerting pressure on the hand intensifies the pain. She is similarly unable to wear any tight or constrictive clothing in conjunction with the right shoulder or arm.
Most of the domestic activities in which she engages are carried out with the left arm and hand.
Her general health has somewhat deteriorated in that she is more prone to intercurrent infections. Her appetite is affected by the intensity of the pain and the weight fluctuates by some 5 kg according to this. There are no disturbances of natural bodily function and the menses continue regularly under the influence of Triphasil.
Her mood is somewhat improved in comparison with the darkest days of 2003 but she is still depressed, frustrated and irritable. Suicidal ideation has ceased. There is a constant sense of regret at the major change that has taken place in her life. Her marriage to a 39 year old insurance assessor is secure but her libido is much reduced, intercourse is infrequent and gratification is impaired.
Over the last year she has begun to experience sharp pains in the right lower limb that are increasing in frequency and intensity and are sufficiently severe as to cause her to limp. Dr Will has considered them to be an accompaniment of the complex regional pain syndrome (30 May 2005). She has observed colour changes in the right foot. The pain does not follow a particular neurologic or dermatomal pattern and there are no sensory changes."

Of the medication on the scheme there were 90 prescriptions in the last 12 month period, of which Imigran was the most frequent script at $26.95 per script. Based on this price per prescription there are approximately 37 prescriptions which would account for the first $1,000 allowed under the Pharmaceutical Benefits Scheme. This means there would be approximately 53 scripts at $5 remaining being a total of $265.
I therefore assess the current annual need for medication as follows:
1.Prescriptions up to the threshold allowance under the Pharmaceutical Benefit Scheme - $1,000.00
2.Balance of prescriptions under the Pharmaceutical Benefit Scheme - $265.00
3.Other prescriptions not covered by the Pharmaceutical Benefit Scheme ($5,989.50 reduced by 20 per cent) - $4,791.60
Total annual expenditure for medication - $6,056.60
This is equivalent to approximately $117 per week. Again using a multiplier of 834.1 for the plaintiff's life expectancy a total figure comes to $97,589.70. I conclude that this should be reduced by 40 per cent to allow for the degree of probability discussed in relation to my assessment of future medical expenses. This reduces the entitlement to $58,553.82. This, I believe, should be rounded off to $58,500.

(h) Past and Future Gratuitous Services

The plaintiff is entitled to recover damages for gratuitous services provided such services are required as a result of the plaintiff's injuries. The measure of damages is the reasonable costs of meeting those needs at commercial rates (see Griffith v Kerkemeyer (1971) 179 CLR 161).
The Motor Vehicle (Third Party Insurance) Act provides limits to awards for gratuitous services provided by persons who are of the same household or family of the plaintiff. In summary these provisions provide as follows:
(a)Section 3D(2) provides that no damages are to be awarded for the value of the services if the services would have been or would be provided to the person if the plaintiff had not been injured.
(b)Section3D(4) sets out a ceiling on the amount that can be awarded so that if the hours are not less than 40 hours per week then the maximum amount that can be awarded is an amount equivalent to the average weekly earnings in Western Australia as published by the Australian Statistician.
(c)If the gratuitous services are less than 40 hours per week, the calculation shall not exceed an hourly rate equal to one‑fortieth of the average weekly earnings in Western Australia.
(d)If the amount is equivalent to a prescribed amount (Amount "D") or less, then no award for damages for gratuitous services are made. Amount "D" is $5,000.
The evidence of Mr Darren Tonkin is that as a result of the plaintiff's disabilities the following gratuitous services have been provided:
(i)In relation to cooking he assists the plaintiff by lifting heavy items (for example, the baking dish) and assists with tasks such as rolling pastry, chopping up vegetables and carving the meat. Also as a result of the plaintiff's disabilities the family now has barbeques cooked by him more often, about three to four times per week all year round. He estimated that sometimes he spent 30 minutes per day to assist with meals and on other occasions 5 minutes. He also gave evidence that before the accident in summer they had barbeques but now they have them more often all year round. I believe that a reasonable allowance for meal preparation is two hours per week.
(ii)Mr Tonkin also gave evidence that he assisted with housework which included such tasks as vacuuming, hanging out the laundry, mopping and ironing. He estimated that the ironing took him 2 to 2 ½ hours per week. Some of the cleaning tasks were performed by the children. I believe that an appropriate allowance for all these items is five hours per week.
Based upon the above I am prepared to allow seven hours per week for past gratuitous services.
Evidence was given by a Mr Dunn of My Place as to commercial rates for providing domestic services. A letter from My Place suggested the commercial rates of between $30 to $37 per hour. However, Mr Dunn in his evidence stated that the type of services provided by My Place was a comprehensive domestic service for people who were more disabled than the plaintiff. Under cross‑examination he indicated that his organisation hired people at the rate of $15.50 to $25 per hour. Back in 2002 the rate had been somewhere between $12 to $15.
Based upon such evidence I believe an amount of $14 per week should be allowed for past gratuitous services. Based upon this rate I calculate an annual allowance for past gratuitous services as follows:
7 hours per week x 52 weeks x $14 per hour = $5,096.
The accident occurred on 1 August 2002 and I allow this annual loss of $5,096 for a period of 5 years (up to 1 August 2007). This leads to a total allowance for past gratuitous services of $25,480.
The plaintiff is entitled to claim interest for all past gratuitous services (see Bowen v Tutte [1990] Aust Tort Reports 68,079 at 68,093, Rowland J with whom Malcolm CJ and Wallace agreed, also see Newman v Nugent (1992) 12 WAR 119, Franklin J 125 – 126; Ipp J at p 131).
I calculate the interest as follows:
$25,480 x 3 per cent x 5 years = $3,822.
I am also satisfied that the plaintiff has a need for future gratuitous services. I believe that the starting point in a calculation of an allowance for future gratuitous services is an allowance of $98 per week (7 hours x $14 per hour). Using a multiplier of 834.1 for the plaintiff's life expectancy, this leads to a total amount of $81,741.80.
However, I believe this needs to be reduced substantially taking into account the factors I have mentioned in relation to the calculation of the future loss of medical and pharmaceutical expenses. Further, I conclude that I should also take into account that the need for gratuitous services is likely to reduce in the future as the children leave home and domestic tasks such as cleaning, meal preparation and ironing are reduced. Accordingly I believe a reduction of 60 per cent should be made to the calculation reducing the amount to $32,696.72. This I round off to $32,700.

General Damages

General damages are awarded for non‑pecuniary loss such as pain and suffering, loss of amenities, loss of enjoyment of life, the curtailment of expectation of life in bodily or mental harm (see De Blank v Stemberger [2000] WASCA 358).
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides limits to the amounts that can be awarded for general damages.
A trial Judge is required to undertake an assessment based upon the right proportion between a most extreme case and the case being assessed (see Hendrie v Ruski [2000] WASCA 249, De Blank v Stemberger (supra), Villasevil v Pickering).
A most extreme case might be a paraplegic particularly of a young person (see Hendrie v Ruski (supra)). However, in Villasevil v Pickering Grove AJ stressed that the ceiling figure is a range of situations which could be described as "a most extreme case" and is not to be considered against "the most extreme case".
In making the assessment the Court is not only required to take into account the disability from the time of the accident to the time of trial but the various future hypothetical events impacting upon the assessment of the disability (see Malec v JC Hutton Pty Ltd). Accordingly in assessing general damages I should take into account the degree of probability of the plaintiff being able to make a recovery as I have outlined earlier in this judgment.
Taking these principles into account I assess the plaintiff's entitlement to general damages to 30 per cent of the maximum being the sum of $97,650.

In summary I award the following amounts:
(a)Past loss of earnings   $125,024.00
(b)Past superannuation                $17,127.00
(c)Interest on past loss of earnings and superannuation    $21,322.65
(d)Future loss of earnings      $275,486.00
(e)Future loss of superannuation                                  $22,433.00
(f)Past and future medical expenses                              $20,300.00
(g)Future medication allowance                                     $58,500.00
(h)Past gratuitous services                 $25,480.00
(i)Interest on past gratuitous services                              $3,822.00
(j)Future gratuitous services                $32,700.00
(k)General damages   $87,600.00
Total$689,794.65