Uka v Italian Aged Care Inc - [2007] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: UKA -v- ITALIAN AGED CARE INC [2007] WADC 38

CORAM: O'SULLIVAN DCJ

HEARD: 1114 DECEMBER 2006

DELIVERED : 30 MARCH 2007

FILE NO/S: CIV 3233 of 2001

BETWEEN: ZYLIE UKA
Plaintiff
AND
ITALIAN AGED CARE INC
Defendant

Catchwords:

Damages - Personal injury at work - Worker's compensation - Determinations of medical assessment panels - Effect of determinations upon assessment - Constraints on awards of common law damages

Legislation:

Workers Compensation and Injury Management Act 1981 (as amended)

Result:

Judgment for plaintiff in the sum of $319,349.00

Representation:

Counsel:

Plaintiff: Mr J R Criddle
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald

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

Ex‑parte Ansett Australia Ltd v Medical Assessment Panel [1998] 19 WAR 395
Ex-parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996
Girrawheen Tavern v Joseph [2003] WASCA 244
Hammond Worthington v Da Silva [2006] WASCA 180
Murray River North Pty Ltd v Midgley [2006] WASCA 104
Re Skirving; ex‑parte Forward; unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Rock Engineering v Pozun, unreported; CM Ct; No 76/96; 28 January 1997
United Construction Pty Ltd v Maketic [2003] WASCA 138
Wade v Allsop (1976) 10 ACR 313

O'SULLIVAN DCJ: The plaintiff was injured in an accident at work on the 28 August 2000 and brings a claim for damages against the defendant, her employer.
Negligence is not in dispute but the defendant denies liability for any psychiatric injuries the plaintiff may have suffered.
Assessment is further complicated by the fact that there have been proceedings between the parties under the Worker's Compensation and Injury Management Act 1981 (as amended)("the Act") pursuant to which a number of determinations have been made by Medical Assessment Panels ("Panel's"). The effect of these upon the plaintiff's entitlement in this case is very much in issue.

The plaintiff

The plaintiff was born in Kosovo in Albania on 14 August 1963. She is married and has two children, who are now young adults. She was educated in Albania until she was 19 years of age and received some training as a nurse. She married in 1984 and came to Australia with her husband in the same year, living in Mount Newman for five years, Melbourne for four and since 1994, in Perth. She first commenced working in Australia in 1997 as a part‑time cleaner at a primary school. In 1999 she obtained work with the defendant as a carer. After a probationary period of three months she was engaged on a permanent basis.

The accident

The plaintiff's duties included assisting aged patients to shower, dress and get into and out of bed.
In the evening of the 28 August 2000 she and a registered nurse were engaged in transferring a patient back to bed. She stood on the right hand side of the patient and the nurse stood on the left and they started slowly walking her towards her bed. As they did so the patient lost balance and fell onto the plaintiff causing her to stumble and take hold of a cabinet to prevent herself from falling.
The plaintiff immediately felt pain in the back on the left hand side and said that she could not move. After some time the nurse helped her get up and took her to her car and she then drove home. On arrival she had to be assisted out of her car by her husband. She then went to bed but was in very severe pain and could not sleep. She sought medical attention the following day.

Initial investigation and treatment

The plaintiff said that she initially felt pain in the lower back on the left hand side and that her back was very stiff. Her general practitioner Dr Cheung referred her for X-rays and prescribed pain-killing medication, but I have no report or other evidence from him. After about 3 weeks she developed pain going down her left leg to the big toe which she described as "like burning, and niggling and … like electric shock … very, very painful". She was referred by Dr Cheung to a Dr Quintner but, again, I have no evidence from him.
In the meantime the plaintiff had returned to work exactly a week after the accident and was placed on light duties for a few hours three or four days a week. This involved some clerical work and helping with the laundry, folding clothes and the like. She found this to be very difficult, saying that she "couldn't move (her) back" and could not concentrate. After some time (she thought it was about 3 months) Dr Cheung certified her completely unfit for any work.
Dr Cheung referred the plaintiff to Mr Peter Anderson, orthopaedic surgeon, who in turn referred her to Dr Phillip Finch, the pain specialist.
In a report dated the 20 February 2001 to Mr Anderson, Dr Finch noted the plaintiff's complaints of persistent lower back pain radiating into the left lower limb which had not improved. He noted that she was then currently not working and was extremely depressed on account of her symptoms.
Dr Finch wrote:
"I am unsure of the current structure that is worrying her. If she indeed has some left neural irritation to the left lower limb, then I would expect to see a posterior annular tear in one of the lower discs. This could still be present and would only show up with discography.
I can certainly look at the facet joints and would suggest that I perform medial branch blocks to the nerve supply to the L5/S1 facet joints initially. A nerve root sleeve injection, as performed in the past, would be non specific and spread to the epidural space. If the medial branch blocks proves successfully in altering her pain sufficiently, then I could try radio frequency blocks in due course"
The plaintiff said that she received injections administered by Dr Finch and they made her feel a little better, "but not for long".
Dr Finch recommended that she should see a clinical psychologist to deal with signs of depression but I have not seen any evidence that she did. However, she was seen by a psychiatrist.

Work trial

In July 2001 the plaintiff still had not returned to work and a trial was arranged after assessment of her condition and consultation between a number of people including occupational therapists and Ms Fran Maceri, the defendant's occupational Safety and Health co‑ordinator. A document entitled "Worksite Assessment Report" was prepared by Mr Bradley Bond, occupational therapist of Denis O'Keefe and Associates, Occupational Rehabilitation Services. The report stated that it had been proposed that the plaintiff "engage in a graduated return to work programme of two hours per day, three days per week",
The plaintiff said that, commencing in August 2001, she in fact attended work on Tuesdays and Fridays of each week. Her activities included having tea with residents, playing games and engaging them in conversation. She was provided with an ergonomic chair, but did not find it to be comfortable. Games such as cards and Bingo caused her difficulty because of an inability to concentrate on account of her pain. She said:
"… I could do nothing. I wish I could help them so much but just – I couldn't do anything. I was so much in pain. All the time in pain."
Ms Maceri gave evidence that when she returned to work from holidays towards the end of September 2000, the plaintiff was working on light duties a couple of hours a day for a couple of days a week. She agreed that by the end of November 2000, the plaintiff was no longer working at all, and had been certified unfit.
The following year she confirmed that she attended meetings with the plaintiff's doctor and the rehabilitation officer to discuss and design a programme for her to return to work. She said that in the light of the failure of the plaintiff's previous attempt to work on light duties, the aim was to design for her duties as an occupational therapy assistant which would be as light as possible. She recalled the plaintiff attending work on a number of occasions, but not more than 20 times. She said:
"She never sort of stayed a long time. It was like 30 minutes, sometimes less, sometimes it could have been a little bit more … ."
She said that the plaintiff never actually did work three days a week two hours a day as contemplated by the programme.
After November 2001 when the rehabilitation services provider closed its file in relation to the plaintiff, Mrs Macari said that she contacted her a couple of times to see how she was going but did not offer her a further position.

Further medical investigation

Dr Shannon

Dr Peter Shannon, psychiatrist, first saw the plaintiff on 27 June 2001, and at that time he found her to be suffering from a depressive condition with features of anxiety. He went on to state in his report of that date that her level of depression warranted treatment, perhaps the administering of antidepressants as well as psychological assistance.
On 19 June 2003, Dr Shannon wrote in a report that he had reviewed the plaintiff on 25 November 2002 and 1 April 2003 with a view to seeing if further medication would assist in dealing with the plaintiff's depression because she had experienced nausea and vomiting with several antidepressant medications. He noted her complaint of ongoing severe pain, and expressed the view that she remained totally unfit for work. He stated:
"The primary diagnosis is one of Chronic Pain Syndrome. Secondary to that Mrs Uka suffers from a Major Depressive Disorder. Over the times that I have seen her, there appears to have been little change in this condition. Therefore I see it as of moderate to severe degree."

Dr Terace

The defendant called as a witness Dr Lawrence Terace, consultant psychiatrist, who saw the plaintiff for the first time in August 2001 and then again in December 2003. On the first occasion he formed the opinion that she was suffering from a mild psychological condition which he called an adjustment disorder/disturbance with depressed mood. It was his view that she presented with a set of behaviours consistent with the term "abnormal illness behaviour".
After seeing the plaintiff on the second occasion, Dr Terace said:
"I found her psychologically to have deteriorated to the point where I could no longer call her distress simply an adjustment disorder and rather used the more significant term of major depression, signifying that there had been a deterioration in her psychological symptoms in that time."
Given the finding of major depression, he thought that the plaintiff was totally unfit for work at that time.

Professor Mastaglia

The plaintiff has been seen by Professor Francis Mastaglia, Consultant Neurologist on four occasions commencing on the 7 November 2002.
He wrote in a report dated 8 November 2002:
"On examination she was obviously in pain and walked slowly with a walking stick favouring the left leg. There was a reduced range of movement of the lumbosacral spine and she was only able to reach the level of the tibial tuberosities with the fingertips when bending forward before experiencing pain in the lower back. Straight leg raising was reduced approximately 45° on the left side and 75° on the right with associated back pain. The neurological examination of the lower limbs showed that there was mild atrophy of the left calf which measured 0.5 centimetres less in circumference than the right. Muscle power was difficult to access because of antalgic inhibition related to her pain. The deep tendon reflexes were all present and symmetric in both lower limbs. Sensory testing showed blunting of pinprick sensation over the outer aspect of the left lower leg and foot in the L5 dermatome."
It was the Professor's view based on the history he obtained and his examination findings (which he found to be "very consistent") and the radiological investigations that the plaintiff had suffered a strain injury to the spine which had resulted in an injury to the L3-4 disc. The Professor said:
"… on the initial MRI scan it was shown that there was a small anterior annulus fissure on the annulus of the disc with some associated oedema of the bone marrow adjacent to that on the vertebral body. Incidentally, that oedema had gone by the time of the second MRI scan on the 22 November 2001, indicating that the initial finding of oedema indicated an acute injury rather than a long standing injury to the disc."
The professor said that in addition to a disc injury the lumbosacral strain may have aggravated a previously non‑symptomatic arthropathy of the facet joints in the lumbar regions of the spine. He said:
"… while the disc injury itself, one might imagine could produce local back pain, the facet joint disease one might imagine, and it often does, result in pain referred to the sacroiliac region and even into the lower limb and, in addition, I felt that there had probably also been a stretch or compressive injury of one of the lower lumbar nerve roots in association with those changes in the facet joint."
These conclusions, the Professor said were supported by his neurological findings and he also considered that there was some muscle atrophy of the left calf consistent with some partial injury to the L5 or S1 spinal nerve roots. He noted that the electromyography and nerve conduction studies done on the left lower limb had not demonstrated any radiculopathy but he considered these not sensitive enough to exclude a mild or partial injury to the spinal nerve roots.
Having seen the plaintiff again on 28 October 2003, 10 November 2005 and 26 October 2006 Professor Mastaglia wrote in a report dated 13 November 2006:
"This lady clearly sustained a significant injury to the lower lumbar spine in August which has failed to resolve. The initial MRI scan of the lumbar spine performed on 14 December 2000 demonstrated two abnormalities the first being an injury to the L3-4 intervertebral disc as shown by the presence of an anterior fissure in the L3-4 intervertebral disc with associated bone marrow oedema in the L4 vertebra. The second abnormal finding was a facet joint arthropathy bilaterally at the L5/S1 level which was reported as being of moderate severity for her age.
In addition the distribution of pain and other sensory symptoms in the left lower limb indicate that there has been some degree of involvement in the L5 spinal nerve root as a result of the original injury to the lumbar spine."
It was the Professor's opinion that taking into account the combined effects of the plaintiff's physical and psychological injuries she remained totally unfit for work either as an occupational therapy assistant or carer under a full‑time unrestricted or part‑time casual restricted basis. He thought it highly unlikely that she would be able to return to any form of gainful employment. He also considered that the prognosis for any further spontaneous improvement was extremely poor.

Mr John Bell

Mr Bell, orthopaedic surgeon, has seen the plaintiff three times for the purposes of assessment and has written five reports which are before me.
After seeing her for the first time on 14 November 2000 he wrote that her general muscle tone was poor and that she shuffled rather than walked, holding her left buttock indicating "great discomfort with every move of all limbs". He continued:
"She indicates inability to squat and hardly moves her low back on voluntary request. I note that with involuntary movements her range of movement of her low back is somewhat more full. She indicated tenderness diffusely throughout the left buttock and left thigh. There were no positive neurological signs in the lower limbs. She indicated just as much discomfort with flexion as extension. Abdominal muscle tone is poor. Posture is poor."
In Mr Bell's opinion the results of imaging investigations were within normal limits and it was "difficult to find physical signs to support the severity of her symptoms". He considered that she displayed "a significant degree of disease conviction". However, he wrote that while that he did "see some doubt about the situation, it is customary to give the patient the benefit of the doubt". Accordingly he considered it "reasonable" to assess her ongoing low back discomfort as significantly related to the injury at work.
After seeing the plaintiff a second time on 25 September 2001 Mr Bell wrote another report making similar comments. Again he found her general muscle tone to be poor, her involuntary range of movements in her lower back to be "reasonably full" and nothing of significance in the imaging results or the patient's neurological signs. On this occasion however, he found her "somewhat more de‑conditioned and overweight," and described her clinical presentation as "bizarre and that of intense abnormal illness behaviour". Further he wrote that:
"Taking into consideration her symptoms, her physical signs and her imaging investigations, it does not appear that there is any degree of residual disability which can be related to the August 2000 injury at work."
Mr Bell's final report was written after seeing the plaintiff on 6 December 2006, some five years after he had last examined her. On this occasion he found her general muscle tone to me "slightly on the poor side of average" but "reasonable and not too bad at all". This, he thought, suggested that she had been keeping reasonably active. He again noted that the plaintiff's involuntary movements were "somewhat more full" and that there were no neurological signs and no wasting of either lower limb. He concluded:
"The diagnosis is not really consistent with the history given. It is the custom to accept that the history is largely and significantly correct and to give the patient the benefit of any such doubt and presumably she does have some degree of ongoing low back pain problems. It is very much overshadowed by her intense degree of abnormal illness behaviour."
Given her muscle tone and from the physical examination Mr Bell thought it "reasonable to deduce that there had been a significant degree of partial recovery."

Mr R J Beaver

Although he did not give evidence in person I should also note that the reports of Mr R J Beaver, Orthopaedic Surgeon were tendered.
Mr Beaver saw the plaintiff on 1 May 2001 and again on 13 December 2001. On the first occasion he found little upon which to base a physical diagnosis and suggested that an opinion from a consultant psychiatrist should be obtained. This was done and after seeing her and reading reports of Dr Shannon and Dr Terace and Dr Srna, another consultant psychiatrist, Mr Beaver wrote on the 14 December 2001:
"There is no suggestion that Ms Uka has recovered from whatever her injury was. However, the reason for lack of recovery cannot be ascribed to a physical disorder. It is to my mind related to a psychological aberrant reaction to an ill defined injury to the lower lumbar region. I have no proof that Ms Uka is feigning illness or malingering. She may indeed have general pain presentation. However any physical signs have been flooded by the abnormal illness behaviour and bizarre physical features thereof. This really has prevented any adequate diagnosis of the source of her pain. It is possible that there is some facet or disc derived pain from the lower lumbar spine but I feel at this stage in her illness it will be almost impossible to identify a single source for her pain. There is no indication from my observation that she has made any form of recovery and I do not see any light at the end of the tunnel for the future."
Mr Beaver concluded his report by stating that he was not prepared to say that the plaintiff suffered a permanent disability as a result of the work injury in terms of a physical disorder. He wrote:
"So as stated above although this lady is highly disabled it seems as a result of a psychological reaction to injury and not to a physical injury as such."

Dr Srna

Another medical practitioner who did not testify in person was Dr Srna, consultant psychiatric. He wrote a report dated 19 September 2001. However, its tender under s 79C of the Evidence Act was opposed notwithstanding that Dr Srna was absent overseas at the date of trial. I reserved my decision on the issue and now hold that it should be admitted. In my view there is no reason why it should not be in evidence.
The plaintiff was seen by Dr Srna on a single occasion on 7 August 2001. He wrote in his report:
"From the available information and my assessment this woman presents with a history suggestive of some degree of back injury that according to the opinion of an orthopaedic surgeon appears to be a muscle or soft tissue injury sustained in a process of lifting a client in the line of her duty. Since I am not qualified to assess the physical aspects of her injury and I do not have access to any opinions to the contrary it would appear that Ms Uka was expected to recover with physiotherapy and an appropriate pain relief within some months. She gave a strong impression to be exaggerating her symptoms and to be clearly involved in a significant embellishment of her difficulties and/or residual symptoms (if any). Clinically she comes across as mildly depressed but not exhibiting a significant major depressive phenomenology."
Dr Srna went on to state:
"The differential diagnosis here is between malingering for financial reward, pain disorder and factitious disorder with an unidentified primary goal and with mainly physical symptomatology and embellishment driven by secondary reward. Each scenario would require different approaches and unfortunately without more specific collateral information I am unable to provide you with a more accurate diagnosis."
Dr Srna also observed that in his view the plaintiff was demonstrating abnormal illness behaviour.

Determinations made under the Act

At this point it is appropriate to note the determinations made under the Act before turning to further evidence in the matter.
Three Panels' have made determinations concerning the plaintiff.
It appears from exhibit 5 ("Plaintiff's Book of Medical Assessment Panel Documents"), that the case was first referred to a Panel on 12 February 2002.
The notice of referral sets out the names of 12 medical practitioners who had seen the plaintiff and then states in part:
"A conflict of medical opinion exists and the matter is referred for determination pursuant to s 145A of the Act."
It then sets out the following questions for determination by the medical assessment Panel:
"1.What is the nature of the worker's physical disability?
2.What is the nature of any psychiatric disability the worker may have?
3.What is the extent of the worker's physical disability?
4.What is the extent of any psychiatric disability, the worker may have?
5.What is the capacity of the worker to undertake her pre‑accident duties as a Carer, having regard to her physical disability and/or psychiatric condition she may have?
6.What is the capacity of the worker to undertake duties of an Occupational Therapist, having regard to her physical and psychiatric disability – see attached job description produced by D O'Keefe & Associates Rehabilitation Providers."
The Panel which was comprised of Mr Anastas, orthopaedic surgeon, Dr Ann Bell and Dr Robert Gillett duly examined the plaintiff and answered the above questions by a document dated 17 April 2002, which reads, relevantly, as follows:
"The medical assessment Panel determines as follows:
1.The initial history is consistent with a minor soft tissue injury of her lower back.
2. She has depression.
3.She has a mild physical disability.
4.She has a mild to moderate psychiatric disability.
5.As a result of her physical disability and psychiatric condition, she does not have a capacity to undertake her pre‑accident duties as a carer.
6.She has a capacity to undertake the duties of an Occupational Therapy Assistant as outlined in the job description produced by D O'Keefe & Associates, Rehabilitation Providers.
REASONS
The reasons for this determination are as follows:
1.Correspondence from Conciliation and Review Directorate carefully read, history taken, examination performed, imaging viewed, discussion with Panel members, unanimous agreement by Panel.
2.The Panel concurs with the physical findings of Mr R J Beaver (report 1 May 2001).
3.The Panel was unable to identify evidence of an ongoing lumbar disc or facet joint injury in this case.
4.She demonstrates inconsistencies on examination.
5.The Panel concurs with the diagnosis of depression in Dr P Shannon's report of 27 June 2001.
She currently presents with persistent low mood, suicidal ideation, loss of interest, social withdrawal and cognitive impairment, all classical symptoms of depression."
By letter dated the 23 May 2002 Mr Anastas wrote to the Worker's Compensation Conciliation and Review Directorate stating:
"I have your letter of the 23 May 2002 requesting clarification of point .5 on page 1 of the determination dated the 17 April 2002.
I wish to advise that the Panel did discuss the two occupations and were satisfied that the worker's physical condition and psychiatric condition would not preclude her from performing the duties of an occupational therapy assistant as outlined in the job description provided."
A referral to a second Panel was made on 20 April 2005. This time it was comprised of Mr Anastas, Dr Gillett and Dr Marshall and answered the questions asked of it by a document dated 8 June 2005 which reads in part as follows:
"Questions for determination by medical assessment Panel"
1.What is the nature of the worker's physical disability?
Answer
The initial history is consistent with a minor soft tissue injury to her lower back.
2.What is the nature of any psychiatric disability, the worker may have?
Answer
There is persistent evidence of abnormal illness behaviour.
3.What is the extent of the worker's physical disability?
Answer
She has a minimal physical disability.
4.What is the extent of any psychiatric disability, the work may have?
Answer
She has a severe abnormal illness behaviour.
5.What is the capacity of the worker to undertake her pre‑accident duties as a Carer having regard to her physical disability and/or psychiatric condition she may have?
Answer
She is not fit for the duties of a carer because of the increased risk of re‑injury/re‑aggravation due to manual handling/repetitive nature of the duties.
6.What is the capacity of the worker to undertake duties of an Occupational Therapy Assistant having regard to her physical and psychiatric disability?
Answer
She is fit for the full‑time duty of an Occupational Therapy Assistant.
REASONS
The reasons for this determination are as follows:
1.Correspondence supplied by Conciliation and Review Directorate carefully read.
2.Clinical and psychiatric history taken in the presence of her husband.
3.Examination performed.
4.All imaging supplied was viewed, the most recent dated November 2001.
5.Job description of Occupational Therapy Assistant Tasks by Mr. Bradley Bond of Denis O'Keefe and Associates carefully read.
6.The examination could not identify a cause to support the stated physical symptomatology, and in particular no motor neurological deficit was identified.
Her straight leg raise is 70º bilaterally which is an improvement on what Dr. P.C. Anderson (October and November 2002) and Professor F.L. Mastaglia (November 2002) found.
7.At this examination there was still evidence of abnormal illness Behaviour as found by Dr. L. Terace and Dr. S. Srna on previous psychiatric assessments. The spectrum of abnormal illness behaviour is consistent with Dr. P. Shannon's diagnosis of Chronic Pain Syndrome (June 2003).
The history and mental state examination did not support the diagnosis of Major Depressive Disorder as defined in DSM‑IV. The affective component during the assessment was consistent with anger and frustration at her situation.
8.There was full discussion with Panel members and unanimous agreement."
The plaintiff's case was also referred to a third Panel, later in 2005. The notice of referral is not in evidence. However, on this occasion the written answer of the Panel was in the following terms:
"1. What is the worker's degree of disability assessed pursuant to s 93D of the Worker's Compensation and Injury Management Act 1981?
Answer
The worker has a disability of no greater than twenty per cent (20%) pursuant to s 93D of the Worker's Compensation and Injury Management Act 1981."
The Panel then set out reasons for its determination.

Issues concerning the effect of the determinations upon these proceedings

The third Panel's determination was made for the purpose of resolving an issue between the parties concerning the right of the plaintiff to bring a claim at common law (see sections 93D, 93E(3)(b) and 93E(4) of the Act). It resulted in a decision of the review officer that the worker had a degree of disability of not less than 16 per cent.
As I understand them, both counsel agree that while some determinations of the other Panels are binding upon this Court they are not conclusive of all matters relevant to an assessment of the plaintiff's claim.
However, there are issues between the parties as to which determinations are binding and their effect.
Moreover, counsel for the plaintiff contended that the determinations related only to the dates upon which each of them were made so that this Court is free to take a different view of the plaintiff's present condition if the evidence justifies it. Counsel for the defendant argued the contrary and submitted in the alternative that the determinations were at least cogent and persuasive evidence of the facts.
Finally, questions arise as to inconsistencies between the determinations themselves and as to how any such inconsistencies are to be resolved.

The statutory framework in which the determinations of the first two panels were made

Questions were referred to the first two panels in the context of disputes between the plaintiff and her employer concerning her entitlement to weekly payments. S 62 of the Act provides a mechanism whereby such entitlements can be reviewed.
At the time when the first Panel was deliberating s 84R of the Act provided in part:
1.If permitted by s 145A to do so, a conciliation officer may refer a question as to –
a)the nature or extent of a disability;
b)whether a disability is temporary; or
c)a worker's capacity for work,
for determination by a medical assessment Panel."
Section 84R was repealed by the Workers Compensation Reform Act No 42 of 2004, s 67, but by the time of the second Panel s 210(1) of the Act had come into existence. Subparagraph (1) of that provision is in terms similar to s 84R(1), but the word "injury" is used instead of "disability".
A Panel is required to make a determination in writing and to give reasons for it (s 145E(3)). The effect of a determination is set out in s 145E(6):
"Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and the worker’s employer and on any court or tribunal hearing a matter in which any such determination is relevant."
Section 145F provides in part:
"(1)If at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the Panel and would be likely to affect the determination of the question if it were to be reconsidered by the Panel the Director may again refer the question to the Panel."
(2)The Panel may refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance.
(3)The Panel may vary its previous determination or rescind it and make a new determination.
…"

The law

In Ex‑parte Ansett Australia Ltd v Medical Assessment Panel [1998] 19 WAR 395 the court stated (at 400):
"The Panel is a creature of statute and has (and is confined to) the jurisdiction conferred on it by the statute. We acknowledge the principle that statutes conferring jurisdiction should be construed liberally and in favour of jurisdiction. However in this instance the jurisdiction is that conferred by s 84R. The Panel cannot go beyond the issues specified in that section and examine issues that the statute has invested in other bodies that it has created."
The authorities make it clear that the jurisdiction of a Panel to make a determination is dependant upon the question referred to it (see United Construction Pty Ltd v Maketic[2003] WASCA 138 at 38; Ex-Parte Ansett Australia Ltd v Medical Assessment Panel (supra) at 400; Hammond Worthington v Da Silva [2006] WASCA 180 at 67 per Buss JA). It follows that to the extent that a Panel has purported to deal with matters not referred a determination will be of no legal effect (United Construction Pty Ltd v Marketic at 38).
In Ex-parte Juras, unreported; FCt SCt of WA; Library No 960637; 7 November 1996, Murray J (with whom Franklyn and Owen JJ agreed) said (at 6) about s 145E(5):
"It is, I think, clear that by the terms of that privitive provision the finality of a determination is only secured in a Court or Tribunal hearing a matter in which the subject matter of the determination is substantively relevant. That view is, to my mind, confirmed by the provision that the determination provides conclusive evidence of the facts determined, so that one could certainly not go behind its terms in relation to any proceeding under the Act in which the terms of the determination were relevant."
The question of the effect of a determination in the future was raised but not answered in United Construction Pty Ltd v Maketic ((supra) par 50 to par 54). At par 51 the court said:
"It may be accepted that each of the questions which may be referred to a Panel by a review officer under s 84ZH (similarly by a conciliation officer under s 84R and by a Compensation Magistrate's Court under s 84ZR) is necessarily to be answered as at the date of the determination: CF re Bannon; Ex‑parte Suleski [2001] WASCA 289 at (6) and (15). In the present case the only question referred to the Panel concerned Mr Maketic's 'capacity for work'. That particular subject matter does not suggest that any prognosis or prospective evaluation is involved, save as may be involved as a limited matter of practicality in a determination that a worker has the capacity to undertake work. Different considerations may arise in another case where for example a question 'whether a disability is permanent or temporary' is referred pursuant to s 145A(1)(b)."
The court went on to refer to some of the arguments for and against the view that the determination spoke only as at the date it was made and also referred to the reasons for decision in Rock Engineering v Pozun, unreported; CM Ct; No 76/96; 28 January 1997.
In Hammond Worthington (supra) the worker had suffered injuries to her neck and right shoulder as well as to her right hand, wrist and lower arm. An issue arose as to the legal effect of a determination concerning "the nature and extent" of her disability. Buss JA (with whom McLure and Pullin JJA agreed) pointed out (at 64) that the scope of the question referred to a Panel and the scope of its determination should be resolved in the context of the dispute between the parties at the time and the statutory framework relating to it. In the particular circumstances of that case his Honour held that the question referred to the Panel related only to the nature and extent of the worker's disability in her neck and shoulder. Moreover it was not a question as to whether it was a permanent or temporary disability and to the extent that the Panel had determined that the plaintiff had suffered a permanent loss of use in her right arm, it had acted beyond power with the result that "that part of its determination (was) not 'conclusive evidence as to the matters determined within s 145E(5)'".
In my view it is clear from the cases that while the determination of a Panel may be binding upon this Court when it is engaged in assessing a plaintiff's entitlement to common law damages, the precise terms of the determination must be carefully examined in the light of the question referred and the circumstances and the statutory context in which the referral was made. To the extent that the Panel may have addressed a question not referred to it, it will have acted beyond power and its determination will be of no legal effect.
The questions referred to the first two Panels included questions as to the plaintiff's physical and psychiatric disabilities. I have already noted that whereas the word "disability" appeared in s 84R of the Act it has been replaced by the word "injury" in s 210. The word "disability" has in fact been left undefined in the Act since the Workers Compensation Reform Act No. 42 of 2004, although it still appears in a number of provisions and the expression "degree of disability" is defined for the purposes of s 93E . The Reform Act also inserted a definition of "injury" in terms similar to the earlier definition of "disability".
It has been held that the word "disability" may have a different meaning in different parts of the Act depending upon its context (see Re Skirving; ex‑parte Forward; unreported; FCt SCt of WA; Library No 980737; 18 December 1998; Girrawheen Tavern v Joseph [2003] WASCA 244 per Wheeler J at 47). In Girrawheen ((supra) at 55 per Wheeler J) it was held that in s 93D and s 93 E of the Act the term bore its ordinary meaning in the sense of "physical incapacity" and was not confined to its defined meaning. However, in the context of s 84R it seems to me that it has a more restricted meaning. If the wider definition was intended there would have been no need to provide for the referral of a question as to a worker's capacity for work. Certainly in relation to s 210 the word "injury" cannot, so it seems to me, bear the meaning of incapacity.

Physical injuries

The first question asked of each of the first two Panels was: "What is the nature of the worker's physical disability"? In each case the answer given was unresponsive. In any event the answer which was given ("The initial history is consistent with a minor soft tissue injury of her lower back") is in no way comprehensively determinative of what I must take into account in assessing the plaintiff's physical injuries for purposes of this case. I am required to take into account the whole of the plaintiff's history as well as her present condition and the prospects of any recovery.
The third question asked of each of the first two Panels was as to the extent of the worker's physical disability. The first Panel answered the question by stating: "she has a mild physical disability". The second Panel stated: "she has a minimal physical disability".
I do not consider that for the purposes for these proceedings much turns upon the difference. It seems to me that whether a Panel has described the extent of a disability as "mild" or "minimal" can make little difference of itself to a person's entitlement at common law which much be assessed having regard to all relevant considerations including, in particular, the effect of any injury upon the individual plaintiff.
This approach reflects, I think, the views expressed in Ansett (supra) where their Honours said about the case before them (at p 399):
"It seems to us that questions such as causation and fitness to work are equivalent to the ultimate question in a jury trial. It is the province of the tribunal of fact (in this case the conciliation officer, the review officer and the Compensation Magistrate) to determine these questions. It is not for the Panel to do so. The Panel is to decide questions that are referred to it and it does so to assist the tribunal of fact in coming to its ultimate conclusion. The task of the Panel is essentially diagnostic in character."

The Court went on to note that the role of the Panel was fundamentally different from that of a conciliation officer, review officer or Compensation Magistrate
Of course, I hasten to add that this does not mean that I can ignore the Panels' determinations. Whether the extent of the plaintiff's disability is described as "mild" or "minimal", I accept that an assessment is to be made in the light of such a finding and any evidence inconsistent with that view must be put to one side.
At first blush this conclusion may seem to affect, principally, the approach I should take to the evidence of Professor Mastaglia. Of all the medical practitioners whose views are in evidence it is only the Professor who has expressed the opinion that the plaintiff sustained a "significant injury". However, as he explained in his evidence (at p 91):
"I use the term significant there in the sense that I felt it involved more than one structure in her spine and secondly it had caused symptoms ongoing over a period of years … I didn't use it so much in relation to the injury to the nerve root which … one would conclude as a mild partial injury."
The professor also said that he disagreed with the view that the plaintiff had a "minimal disability, in the overall sense if one uses the term 'physical disability' to described the total effect on the individual that an injury has had".
In my opinion the determinations of the Panels that the extent of the plaintiff's disability was "mild" or "minimal" are not inconsistent with these views.
In my opinion while the Panels have determined that the extent of the plaintiff's physical disability was "mild" or "minimal", they have said nothing about the effect of it upon her. Nor were they asked to do so. In any event such a question was not authorised by s 84R or s 210 of the Act.
The professor is clearly of the opinion that there are physical reasons for the plaintiff's pain. He considers that she has suffered an injury to the intervertebral disc at the L3/4 level as well as an aggravation of a previously non‑symptomatic arthropathy of the facet joints in the lumbar spine and a stretch or compressive injury to one of the lower lumbar nerve roots.
In the professor's view the evidence for the injury to the disc includes the MRI findings which showed, on 14 December 2000, a small annulus fissure with associated oedema in the bone marrow and, on 22 November 2001, an absence of any oedema. This, he thought, demonstrated an acute rather than a long‑standing injury to the disc.
Professor Mastaglia said that the reasons for his conclusion that the plaintiff had sustained an injury to one of the lower lumbar nerve roots were firstly, that the plaintiff had a sciatic distribution of pain in her left leg and secondly on each of the four neurological examinations he had conducted he had found some subjective change in the perception of sensation over the lower part of the calf which is the area supplied by the L5 spinal nerve root and some muscle atrophy or shrinkage in the left calf.
These views stand, of course, in stark contrast to those expressed by Mr Bell the only other doctor who gave evidence in person before me concerning the plaintiff's physical injuries.
He said that he found nothing of clinical significance in the radiological findings and that an annulus fissure with associated marrow oedema was too common in people of the plaintiff's age to be indicative of some injury to the back.
However Mr Bell did concede that others might "legitimately" hold a contrary view. Moreover, as the professor pointed out, studies which show that a significant proportion of the adult population have irregularities in their spine do not assist very much in determining whether a particular individual has an irregularity causing pain.
As to the finding of muscle wasting in the left calf, Mr Bell said in examination‑in‑chief that he had had great difficulty in measuring the calf muscles so as to be able to compare their bulk because the plaintiff would hold the right lower limb very "toned" and the left very slack. He said a difference of half or even one centimetre between the calves could not be significant in any event because such a measurement could not be accurate. He said:
"If you can measure a piece of inanimate object, you can measure it to a fraction of a millimetre, but in the body there is such a change with circulation, with times of day, depending on how much you have been standing and sitting, that the measurement from one year to another isn't of significance and half a centimetre, really is doesn't bear any great significance at all to me, and even one centimetre. If it were two centimetres or more, then I would be answering that it see it as significant. Notwithstanding this view Mr Bell said that he found the plaintiff's calves to be of equal size."
Professor Mastaglia said that he found it "incredible" that Mr Bell should have found no material difference. He said:
"… I measured this lady's calves myself. I didn't get somebody else to do it. I used the standard technique with my own tape measure and I found a difference of one centimetre … it was a half centimetre in 2002 and one centimetre in 2006."
It was the progression of the asymmetry over a period of four years which Professor Mastaglia considered significant. He also claimed that the detection of neurological signs or symptoms including pain distribution and sensory impairment and matters such as muscle shrinkage is very much the speciality of the neurologist.
Although Mr Bell was impressed by a number of features in the plaintiff's presentation which he regarded as very unusual it does not seem to me that they demonstrate that the plaintiff must be free of pain. He was closely cross‑examined and clearly indicated his view that she demonstrated a high degree of "disease conviction", a conclusion he thought was fortified by the facts that the plaintiff took opiate medication, complained of neck pain upon having physiotherapy not long after the accident, walked with a stick, "shuffled rather than walked" and became more deconditioned and overweight as time went on.
However, the pain a person feels is, of course, subjective and while Mr Bell was unable to explain it in this case, neither, it seems to me, was he able to deny the possibility that it existed. Perhaps that is why, in the end, he observed in his final report that "presumably she does have some degree of ongoing low back problems".
On the other hand it seems to me that Professor Mastaglia has provided a logical and persuasive case to explain how it is that the plaintiff might be in pain. Of course whether she is and the extent of it are matters dependant in the end upon her credibility but I am satisfied on all the evidence that as a result of the accident the plaintiff did suffer an injury to the spine at the L3/4 level and the aggravation of a previously non‑symptomatic condition of the facet joints in the lumbar spine resulting in injury to the nerve roots.

Psychiatric injury

The first Panel answered the question: "What is the nature of any psychiatric disability the worker may have?" by stating: "She has depression". In answer to the question "What is the extent of any psychiatric disability the worker may have?" it answered: "She has a mild to moderate psychiatric disability." It stated under the heading "Reasons":
"5.The Panel concurs with the diagnosis of depression in Dr P Shannon's report of 27 June 2001.
'She currently presents with persistent low mood, suicidal ideation, loss of interest, social withdrawal and cognitive impairment, all classical symptoms of depression.' "
The second Panel answered the first of these questions, stating "There is persistent evidence of abnormal illness behaviour". It answered the second question by stating: "She has a severe abnormal illness behaviour." On this occasion it said in its reasons:
"7.At this examination there was still evidence of abnormal illness behaviour as found by Dr L Terace and Dr S Srna on previous psychiatric assessments. The spectrum of abnormal illness behaviour is consistent with Dr P Shannon's diagnosis of Chronic Pain Syndrome (June 2003).
The history and mental state examination did not support the diagnosis of Major Depressive Disorder as defined in DSM‑IV. The affective component during the assessment was consistent with anger and frustration at her situation."
Neither party suggested that I am not bound by the second Panel's finding that the plaintiff has a severe abnormal illness behaviour.
However any agreement on the use of that term masks the real issue which emerges at this point.
For, as I understand it, the expression is wide enough to cover both genuine and false complaints of pain and the defendant argues that I should not accept the plaintiff as a witness of truth. Putting it another way the defendant submitted that the plaintiff's abnormal illness behaviour was not caused by its negligence. I will turn to discuss this issue shortly.
In the meantime I note that a question which remains is whether, in assessing the plaintiff's claim, I am free (subject to a finding that it was caused by the defendant's negligence) to take into account the depression from which she has suffered. In my opinion I am.
The first Panel certainly determined that the plaintiff had depression. The second Panel it would seem, determined that she did not (given that it was asked as to the extent of any psychiatric disability and did not mention depression in its answer). And it certainly stated in its reasons that "the history and mental state examination of the plaintiff did not support the diagnosis of Major Depressive Disorder".
However, the second Panel did not determine that the plaintiff had never suffered from depression and it was not asked to do so. Nor, as I read s 210 of the Act could it have been. In any event depression is clearly a condition which can vary from time to time. Thus Dr Shannon, it seemed to me, was careful to say in his evidence that he considered that the plaintiff was depressed at the times when he saw her and Dr Terace stated "most depressions do improve and/or remit with time".

The cause of the plaintiff's abnormal illness behaviour

According to the plaintiff she has continued to suffer severe pain and stiffness in her lower back and pain down her left leg and the effect upon her has been devastating. Her mobility is severely reduced. She has to use a walking stick. She can not drive a car, carry out housework, go shopping, do the garden or even engage in moderate physical activity. As a result, she said: "I have no life".
The plaintiff's day starts at 6 am when she takes pain killing medication and her husband has to help her get out of bed and dress. He makes breakfast while she sits at the table. After breakfast she lies down for a while and watches television. Her husband does all the housework while she sits in the lounge or lies down. He prepares lunch and the evening meal. She goes to bed about 10 pm after taking Panadeine Forte. This helps her to sleep for a while but she wakes with pain in the back and leg after about four hours so she then gets up and moves around the house a little. She sits in a chair to shower and her husband has to help her get in and out of it.
When the plaintiff saw Professor Mastaglia on 26 October 2006 he reported that she told him that there had been no improvement in her condition and that she continued to suffer "consistent low back pain, aching and burning throughout the day and worse at night reaching levels of 10/10 in severity."
That of course is the plaintiffs own description of her pain but I note what Professor Mastaglia said about a question of this kind:
"… no two individuals or patients respond to pain in the same way and I believe, and I think it's well accepted and to a large extent commonsense, that an individual's response to pain in terms of how to express pain, in terms of their body language and behaviour is dependant on many different factors, their background, their degree of stoicism, pain threshold, previous trauma and many other things … ."
It was stressed by counsel for the defendant that in addition to the views of those medical practitioners who found the plaintiffs pain behaviour to be unusual or bizarre, I should take into account her behaviour before me and, as depicted in the evidence, on a number of occasions since the incident. And of course I must do so.
Counsel submitted that when giving her evidence the plaintiff displayed little or no discomfort and did not move her body position much. I accept the latter observation and indeed noted it for myself, but I do not accept that she displayed no discomfort. Indeed it was my impression that she held herself quite rigidly not unlike a person in pain might do. However that is only a passing thought and I am not a medical practitioner. The point is that there was nothing about her demeanour that suggested to me that she was not in genuine pain.
The plaintiff was also closely cross‑examined about her evidence that her husband assisted her in the shower when washing her hair and about visiting a building site and it was submitted that her answers afforded grounds for doubting her evidence. In my view they do not. English is not her first language and she may have been confused by some of the questions addressed to her but I do not think that she was being evasive in her answers. In the end she made it clear that she washes her hair without help and that she did visit and walk over the site where her son was building a house.
Although I consider that the plaintiff has exaggerated her response to the injuries she has suffered, I am nevertheless satisfied that she has continued to experience pain in her back and leg. It is impossible to know precisely how much pain she has suffered but I am satisfied that it has been and continues to be significant and debilitating.
Counsel for the defendant submitted that even if I came to this view I should still decline to hold that the plaintiff's psychiatric condition was caused by the defendant's negligence. This should be so, it was said, because the evidence disclosed an unhappy home life, difficulties in the plaintiff's marriage and troubles with her daughter.
In my view this submission should be rejected. Dr Shannon wrote in his report of 19 June 2003:
"It is my clear understanding that Mrs Uka's problems started with her injury at work. That has unfortunately led to her Chronic Pain Syndrome and, subsequently, the Major Depressive Disorder. I have been unable to find any other reason for her symptoms that have led to that diagnosis."
The major depressive disorder has of course largely resolved but the chronic pain syndrome remains.
Dr Terace was even more explicit. He wrote in his report of 11 December 2003 that the plaintiff's marital problems and difficulties with her teenage daughter may partially explain the clinical deterioration of her current symptoms. However, he wrote:
"… despite the multiplicity of experiences giving rise to the present condition, there is still contribution from Mrs Uka's perceived pain, disability and handicap such that despite the other environmental factors, material and significant contribution from the date of the accident, 28 August 2000 may still be argued reasonably …"
In my opinion the plaintiff's injuries and the pain she has experienced as a result of them have played a critical role in causing her present condition and her claim should be assessed accordingly.

The plaintiff's capacity for work

The sixth question addressed to the first Panel was as to the capacity of the plaintiff to undertake the duties of an Occupational Therapist. The Panel's answer was that she had "a capacity to undertake the duties of an Occupational Therapy Assistant". Perhaps it might be said that there is little difference but I do not think that I can assume that that is so.
On the occasion of the second referral the Panel again did not specifically address the question asked of it. It was asked:
"6What is the capacity of the worker to undertake duties of an Occupational Therapy Assistant, having regard to her physical and psychiatric disability – see attached job description produced by D O'Keefe & Associates Rehabilitation Providers".
The Panel's answer to this question was:
"She is fit for the full time duty of an Occupational Therapy Assistant."
The "attached job description" referred to in the question was the Work Site Assessment Report dated the 11 July 2001 prepared at the time when efforts were being made to arrange a work trial for the plaintiff. Under the heading "Duties", the report states in part:
"Occupational Therapy Assistants help clients with rehabilitative activities and exercises outlined in a treatment plan developed in collaboration with the Occupational therapist. The assistant monitors the individual to ensure that the activities are performed correctly and to provide encouragement. They also record their observations of the client's progress for use by the Occupational Therapist. …"
The report then goes on to note that it had been proposed that the plaintiff "could engage in a graduated return to programme (sic) beginning on two hours per day three days per week of Occupational Therapy Assistant type tasks". Under the heading "Occupational Therapy Assistant Tasks" a number of activities are then listed. I will not set them out in these reasons. They are clearly activities involving very limited physical exertion over quite short periods of time.
The report then states under the heading "Critical Physical Demands":
"1Lift/Carry            Occasional        Coffee cups and sauces weighing approximately 1 to 2 kilograms.
2.Standing/Sitting    Constant            It has been recommended that Ms Uka alternate between sitting (in ergonomic chair) and standing when undertaking tasks within the occupational therapy group
3.Walking              Occasional         When Ms Uka is asked to go to comfort or check on the residents who are unwell in their beds.
4.Forward Reaching Occasional       When undertaking some aspects such as craft activities and table games."
Finally, under the heading "Summary and Recommendations" the reports states:
"In order to minimise the risk to Ms Uka's injuries the following rehabilitation recommendations are therefore made.
•Ms Uka is not to undertake any lifting over 2 kilograms.
•Ms Uka is to avoid repetitive trunk/neck flexion and trunk rotation.
•Ms Uka is to avoid prolonged sitting/standing and to alternate regularly between these postures whilst undertaking assisting with activities within the occupational therapy sessions.
•Assistance is to be available for Ms Uka at all times and Ms Uka is to request assistance for all lifting greater than 2 kilograms and to avoid sustained or repetitive trunk flexion.
•Ms Uka is to squat for all below waist level tasks and is to turn and move her feet rather than rotate her spine.
•Ms Uka is take a postural break for approximately 5 minutes every half an hour and engage in prescribed physiotherapy stretches.
•Ms Uka is to be prescribed with an ergonomic office chair by Denis O'Keefe and Associates to utilise when sitting for her group activity tasks. "
In my opinion, in answering the sixth question asked of it in the way it did the second Panel has exceeded its jurisdiction.
It is of course clear that the Panel was of the view that the plaintiff had a capacity to undertake the duties of an Occupational Therapy Assistant as described in the document produced by D O'Keefe & Associates. To the extent that the Panel has gone further than that, its views are not binding upon this Court.
Mr Bell is of the view that while the plaintiff is unfit to return to her pre‑accident employment, even on a part‑time basis, she is fit to undertake the duties of a full‑time occupational therapy assistant. He described her prognosis as "guarded" and wrote in his final report:
"I believe her low back pain problems would be much more likely to recover at an earlier stage if she were to develop a more optimistic outlook on her situation and take up a programme of improving muscle tone, posture, flexibility and circulation with a weight control programme and quitting smoking."

Professor Mastaglia said that the combined effects of the plaintiff's physical and psychological injuries were such as to render her total unfit for work. In his view it was highly unlikely that she would return to any form of work within the foreseeable future.
I have already noted Dr Shannon's view that from a psychiatric stand point the prognosis was "gloomy". He said:
"People, are after some months away from the workforce with this sort of condition usually find it increasingly difficult to return to the workforce and now that has gone on for … something like six years … I would feel that the likelihood of Mrs Uka returning to the workforce is very minimal."
Dr Terace was of the opinion that on the two occasions when he saw the plaintiff she was totally unfit for work. On the second occasion which was in 2003 she was suffering from a major depression and that on its own made her unfit. He said that a person exhibiting abnormal illness behaviour did not necessarily lack the capacity for work but the motivation may be absent. In the end he preferred to leave the question of the plaintiff's capacity to be answered by the experts in physical medicine.
The plaintiff, I find, has continued to experience pain as a result of her injuries and while it persists so, it seems likely, will her psychiatric condition. In my view she has been unable to work since the accident and her prospects of re‑entering the workforce are low. It is true that the second panel has determined (as I find) that she is fit to carry out the duties of an occupational therapy assistant as described in the work site assessment report but that, in my view, will not increase those prospects in any significant respect. She remains unable to do anything but the lightest work for only a few hours per day. Finding a job in those circumstances will be very difficult, if not impossible. As Stephen J said in Wade v Allsop (1976) 10 ACR 313 at 361:
"… the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful."
However, I do consider that these proceedings are themselves having a significant adverse affect upon the plaintiff and once they are over there may be some improvement in her chances of working again. As Dr Shannon said in his report of 19 June 2003:
"I would emphasise that Mrs Uka feels that she would be able to make some choices for herself if this claim was settled. I realise that is probably not a simple matter. However, the degree to which she feels 'trapped', and unable to decide anything for herself certainly adds to her level of frustration … from a psychological perspective it would make her feel that she has taken one important step."
I should not leave this aspect of the matter without referring to the question of whether the plaintiff has failed to make reasonable efforts to get back into the workforce.
It was the defendant's submission that she has not.
Counsel argued that the return to work programme which was devised in about July 2001 was carefully designed with the plaintiff's specific needs in mind. The proposed duties were very light and the plaintiff's hours of work were very few. Moreover the first two panels thought her capable of performing them. A graduated return to work was contemplated and had the plaintiff successfully negotiated the initial requirements of the programme, additional duties and hours would have been provided so that eventually she would have been working full‑time for the defendant as an occupational therapy assistant.
It was counsel's submission that failure of the plaintiff to take advantage of the return to work programme was a failure on her part to mitigate her damages.
I do not accept that argument. It overlooks the clear evidence that at the time of the work trial the plaintiff was regarded by these medical practitioners who saw her as totally unfit for work. Her physical and psychiatric condition was such that even the work trial was doomed to failure and that of course is what occurred.

Assessment

In my view it is appropriate to carry out an assessment of the plaintiff's claim in the conventional way before determining her entitlement in the light of the statutory provisions relevant to the case.

General damages

I am satisfied that as a result of the accident the plaintiff has suffered physical and psychiatric injuries which have had a significant detrimental effect upon the quality of her life. While the reasons for her pain have been the subject of controversy I am satisfied that it exists and has been persistent and debilitating, resulting in depression which has varied in intensity and abnormal illness behaviour. Efforts to deal with her condition have not been successful and her prognosis is not optimistic.
In all the circumstances I consider that an appropriate award of damages for pain, suffering and loss of amenities would be in the sum of $60,000.

Past loss of earnings

In my view it is clear that the plaintiff has been unable to work since the accident. At the time of it she was working 36 hours per week and I find that but for her injuries she would have continued to do so. In these circumstances the amount she would have been able to earn is $133,110. The amount of worker's compensation received must be deducted from this sum and interest (at 3 per cent) and the Fox v Wood component added. The result is the amount of $105,662.

Loss of earning capacity

Although counsel for the defendant argued that it would be appropriate to assess the plaintiff's future loss of earning capacity upon the basis that an allowance should be made for the plaintiff to train herself to take up a position in the workforce within, say, a couple of years I do not consider this approach to be appropriate. The plaintiff's capacity to resume her pre‑accident employment has been destroyed as a result of the negligence of the defendant. In my opinion the value of that capacity should be assessed and a discount applied to allow for any retained ability to work.
The plaintiff is presently 43 years of age. Her current net wage working for the defendant would be $434.75 per week. The multiple to age 65 is 647 giving a sum of $281,283.25.
In my view it would be appropriate to apply a discount of 30 per cent to account for normal contingencies and the prospects of the plaintiff re‑entering the workforce. This gives a figure of $198,898.

Past and future gratuitous services

I would allow for gratuitous services at the rate of one hour per day giving the sum of $35,805 for past services, plus interest on that sum at the rate of 3 per cent per annum, amounting to $6,767.15. For the future the amount should be $59,035.20 after applying a discount of 30 per cent to allow for contingencies.

Past and future loss of superannuation

The amount of the plaintiff's claim for past loss of superannuation should be $10,070 together with interest thereon in the sum of $1,963.64.
For the future the amount should be $14,829.86 after allowing for contingencies by applying a 30 per cent discount.

Future medical expenses

I would allow the sum of $16,064.

Past medical and related expenses

The plaintiff claimed a total amount of special damages under this heading of $22,893.62. I would allow that sum which included expenses relating to Mr Anderson, orthopaedic surgeon. It is clear on the evidence that the plaintiff was seen by him and the quantum of his fees are not in dispute. I find that it was reasonable that the plaintiff should have consulted him.

Statutory cap on damages

Section 93F of the Act provides:
"1.Unless an agreement or determination that the degree of disability of the worker is not less than 30 per cent is recorded for the purposes of s 93E –
a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury, of the maximum amount that may be awarded; and
b) the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
For present purposes "Amount A" is $319,349.00.
In this case, assessing damages in the traditional way I have arrived at a figure of $521,918.47 made up as follows:
General damages  $60,000
Past loss of earnings  $105,662
Loss of earning capacity                $198,898
Past gratuitous services                 $35,805
Interest on past gratuitous services $6,767.15
Future gratuitous services              $59,035.20
Past loss of superannuation           $1,963.64
Future loss of superannuation        $14,829.86
Future medical expenses               $16,064
Past medical and related expenses $22,893.62
TOTAL$521,918.47
In Murray River North Pty Ltd v Midgley [2006] WASCA 104 the Court held that s 93F(1) of the Act did not operate to provide that the damages to be awarded should be those that would have been assessed at common law, subject to the maximum provided for by Amount A. Instead, as Steytler P pointed out:
"… the legislature has deliberately chosen a different formula, being one which requires that damages be awarded in accordance with the severity of the disability subject to the maximum provided for in a most extreme case of a disability of less than 30% in degree."
In this case the effect on the plaintiff of her physical and psychiatric injuries has been severe. The level of her pain has been such as to adversely affect her ability to engage in even moderately heavy physical activity and she has been unable to work for over six years. Her prognosis is poor and her prospects of returning to work are slim. She has suffered a significant financial loss. Taking all these matters into account I am satisfied that the severity of the disability suffered by the plaintiff is such as to justify the description, "a most extreme case of a disability of less than 30 per cent".

Conclusion

The plaintiff should therefore have judgment in the sum of $319,349.