Vasa v Ubiparipovic

[2017] NSWDC 269

District Court

New South Wales

Medium Neutral Citation:

Vasa v Ubiparipovic & Anor [2017] NSWDC 269

Hearing dates:

31 August, 1 and 29 September 2017

Date of orders:

04 October 2017

Decision date:

04 October 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the amount of $125,008.25;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

 

3. The exhibits may be returned;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – motor vehicle accident – liability admitted; DAMAGES – assessment of plaintiff’s damages for economic loss

Legislation Cited:

Civil Liability Act 2002
Evidence Act 1995, s 60
Motor Accident Compensation Act 1999, s 126(1), s 141B
Uniform Civil Procedure Regulations, r 31.27(1)(c); Sch 7 cl 5(1)(c)

Cases Cited:

Anthanasopoulos v Moseley [2001] NSWCA 266
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Coote v Kelly [2013] NSWCA 357
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Kars v Kars [1996] HCA 37; (1996) 187 CLR 354
Larson v Commissioner of Police [2004] NSWCA 126
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Majkic v Bonnano [2008] NSWCA 253
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miller v Galderisi [2009] NSWCA 353
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73

Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
Waterways Authority v Fitzgibbon [2005] HCA 57
Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446

Category:

Principal judgment

Parties:

Hazel Vasa (Plaintiff)
Jadranka Ubiparipovic (First defendant)
DJ Construction & Rendering Pty Ltd (Second defendant)

Representation:

Counsel:
Ms M Fraser (Plaintiff)
Mr D Hanna (Defendants)

  Solicitors:
Palazzolo & Associates (Plaintiff)
Mallos Davis Lawyers (Defendants)

File Number(s):

2017/40513

Publication restriction:

None

Judgment

Table of Contents

Nature of case and factual background	[1] – [3]
Issues	[4] – [7]
Evidence overview	[8]
Credit and reliability of testimony	[9] – [19]
Plaintiff	[10] – [12]
Plaintiff’s father	[13]
Plaintiff’s mother	[14] – [16]
Mrs French	[17] – [18]
Facts	[20] – [178]
Plaintiff’s background circumstances	[21] – [23]
Pre-accident schooling	[24] – [29]
Pre-accident health of the plaintiff	[30] – [33]
Accident circumstances	[34] – [37]
Injuries	[38] – [39]
Ambulance and hospital assessments of injuries	[40] – [43]
Initial general practitioner follow-up	[44] – [45]
Subsequent reviews, assessments and treatment	[46] – [47]
Mitigation	[48] – [53]
Findings on conflicting medical opinions	[54] – [118]
Disabilities that remain	[119] – [135]
Domestic effects	[136] – [139]
Consideration of school records & evidence of Mrs French	[140] – [177]
Assessment of damages	[179] – [248]
Actuarial factors	[180]
Future economic loss and related loss of superannuation	[181] – [206]
Future treatment expenses	[207] – [229]
Future domestic assistance	[230] – [246]
Past out-of-pocket expenses	[247]
Summary of damages assessment	[248]
Disposition	[249]
Costs	[250]
Orders	[251]

Nature of case and factual background

1. The plaintiff, Hazel Vasa, was injured in a motor vehicle accident at Bonnyrigg, NSW, on the afternoon of Saturday 7 February 2015. At the time she was 16 years old and in Year 10 at high school.

2. The plaintiff was a front seat passenger in a vehicle that had become stationary behind other traffic, when a vehicle driven by the first defendant, Jadranka Ubiparipovic, which was owned by the second defendant, DJ Construction & Rendering Pty Ltd, collided with the rear of the vehicle in which the plaintiff was seated. That vehicle was then forced into a further collision with the rear of the stationary vehicle in front.

3. In these two collisions the plaintiff suffered a number of musculo-ligamentous strains leaving her with consequential physical and psychological problems. The defendant has admitted liability in respect of the accident but disputes the quantum of damages. The proceedings are governed by the provisions of both the Motor Accident Compensation Act 1999 [“MAC Act”] and the Civil Liability Act 2002 [“CL Act”].

Issues

4. Following the defendant’s admission of liability, the remaining issues to be determined relate to the assessment of the plaintiff’s entitlement to damages.

5. Foremost amongst those issues is the identification of actual injuries sustained by the plaintiff, and the ongoing effects of those injuries, including the disruptive effect the accident has had upon the plaintiff’s education, where she was ultimately expelled from school in Year 12, and what if any impact those matters should have on the assessment of the claim for future economic loss.

6. Underlying those matters is the need to analyse and to reconcile a number of conflicting medical opinions to determine which opinions should be accepted, and whether a proper basis has been established for those opinions: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).

7. Following analysis along those lines, and for the reasons that will be identified, I have found that the physical injuries sustained by the plaintiff in the subject accident comprised musculo-ligamentous strains to her neck, both of her shoulders, and to her lower back. These problems have led to the plaintiff having reduced levels of activity. Consequently, the plaintiff developed depression, she has experienced a significant increase in her weight, and she now has morbid obesity.

Evidence overview

8. In the plaintiff’s case, oral evidence was given by the plaintiff, her father Mr Mose Vasa, and her mother Mrs Fiona Vasa. The plaintiff’s parents gave their evidence with the assistance of a Samoan interpreter. The plaintiff also called oral evidence from Mrs Susan French, a former principal of the last high school attended by the plaintiff. Mrs French was no longer the principal at that school at the time the plaintiff was expelled. The defendant called no witnesses. The parties tendered bundles comprising several hundred pages of copies of medical reports including duplicates, and bundles comprising copies of voluminous school records and reports.

Credit and reliability of testimony

9. In the paragraphs that follow, I record my impressions and conclusions concerning the credibility and the reliability of the testimony of the respective witnesses.

Plaintiff

10. The plaintiff was an intelligent and thoughtful witness who responded appropriately in an open, forthright and unguarded manner to questions. She provided composed, matter-of-fact, and dignified answers to questions asked of her in cross-examination where those questions sought to emphasise her unfortunate historical absences from school.

11. The plaintiff was born in Australia to Samoan parents. The language used at home was Samoan, and for some time during her early primary school years, she was taught English as her second language: T26.27. The plaintiff’s evidence gave no indication of an assumed learning difficulty which had apparently been identified at an early stage of her schooling, but which, it appears, was not the subject of later re-testing or confirmation for any ongoing effects.

12. Given the plaintiff’s age and notwithstanding the descriptions within her school records, I was impressed by the candour, the relative fluency, the confidence and expressive content of the plaintiff’s evidence. I considered her evidence to be truthful, reliable and understated.

The plaintiff’s father

13. The plaintiff’s father gave evidence with the occasional assistance of a Samoan interpreter. His factual evidence was not challenged or contradicted. I considered his evidence to be truthful and reliable.

The plaintiff’s mother

14. The evidence of the plaintiff’s mother, Mrs Fiona Vasa, was interrupted by her extreme reaction of emotional upset to being questioned. At one point, she broke down and could not continue with her evidence. This was in circumstances where she too had been injured in the subject accident, and the emotional consequences of the accident were well evident, as was reflected in her evidence.

15. The defendant sought to enlarge upon what I considered to be a relatively minor variation between the evidence of the plaintiff and of her mother on what appeared to be an explicable and reconcilable issue relating to a particularised claim by the plaintiff for past domestic assistance.

16. Since counsel for the plaintiff abandoned the plaintiff’s claim for the value of past domestic assistance as it did not meet the minimum quantification threshold of 6 hours per week for 6 months, as is required by s 141B of the MAC Act, it was therefore not necessary to further consider or to undertake a consideration or a reconciliation of that matter. No adverse credit considerations arise from that evidence.

Mrs French

17. Mrs French’s evidence was called by the plaintiff in order to explain aspects of the plaintiff’s record of absences from school, her progress at school, and her impressions of the plaintiff as a pupil under her care whilst Mrs French had been the principal at St John’s Park High School. The plaintiff had been enrolled in that school for part of Year 10, and for Years 11 and 12, until she was expelled. Mrs French was not the principal at the time the plaintiff was expelled from school.

18. Although the passage of time has resulted in a fading of aspects of Mrs French’s memory of some events concerning the plaintiff’s time at St John’s Park High School, there were no concerns over the credibility or the reliability of her evidence generally. I shall return to a more detailed examination of the evidence of Mrs French in the context of the evaluation of the plaintiff’s school records.

19. I now turn to set out my findings of fact.

Facts

20. Unless otherwise stated, my findings of fact now follow on matters concerning the plaintiff’s background circumstances, the injuries she sustained in the accident, the initial assessments and treatment she received, the further medical and allied reviews undertaken of the plaintiff, the reconciliation of conflicting opinions within the body of the medical evidence tendered, the nature of her ongoing disabilities, and the effect of those disabilities on her earning capacity, her future ability to carry out domestic tasks, the issue of mitigation, and the matters emerging from an analysis of the plaintiff’s school records.

Plaintiff’s background circumstances

21. The plaintiff was born in Australia. A few years earlier, her parents came to Australia from Samoa. She was in good general health before the subject accident.

22. Before the subject accident, the plaintiff was active in a number of sports, such as volleyball, basketball, rugby and athletics, which included discus, shot put and javelin. At the time of the accident the plaintiff had been living at home with her parents, both of whom were working long hours. She had an ambition to complete her HSC and to undertake tertiary studies. She had in mind to pursue a career in forensic photography if not some form of legal studies. It was early days for the plaintiff to have made a definitive choice of a career path.

23. Before the subject accident, the plaintiff’s mother worked as a packer in a factory. Her father worked as a machine operator. Her two brothers, who had completed their education to HSC level, both worked in manual occupations.

Pre-accident schooling

24. The plaintiff had a troublesome time in her early school years. She began truanting in Year 8: T31.44. This was because she had been bullied at school in her early years. Her older brothers had taught her to fight back in response, and this appears to have created disciplinary difficulties for her at school. The plaintiff changed schools a number of times due to bullying and due to the effects of bullying: T27.15. The history of bullying was influential in her poor attendance at school. She explained that she had been scared of going to school: T27.45 – T27.50.

25. The plaintiff acknowledged that before ultimately changing schools to enrol in the final school she attended, namely St John’s Park High School, she had been in the “wrong crowd”: T32.2. This appears to have adversely influenced her behaviour, progress and attendances at school in 2011, 2012, 2013 and for the first part of 2014.

26. In mid-2014, the plaintiff changed schools to enrol at St John’s Park High School. Her aim in doing so was to seek to put her past school difficulties behind her. In that context, she was interviewed by Mrs French, then the principal of that school, who was aware of the negative aspects of her prior schooling, and who was nevertheless prepared to give the plaintiff the opportunity she was seeking to pursue.

27. I am satisfied that before her accident, the plaintiff was motivated to complete her secondary schooling to the level of achieving her HSC, as had her brothers before her: T12.5. I am also satisfied that she was motivated to pursue tertiary studies and was prepared to apply herself in that regard.

28. The plaintiff’s pre-accident home environment was at times not conducive to her education in that her parents were not proficient in the English language, and they were unable to assist her with her school work: T26.46 – T26.50. This was further complicated by her need to move to live with other relatives for a time in 2013: T32.30 – T32.49. She then moved to live with the ex-partner of one of her brothers (T33.38) but at the time of the accident she was living with her parents: T11.8 – T11.9.

29. I shall return to the subject of the plaintiff’s progress at school, and her ultimate expulsion from school, as a prelude to evaluating the plaintiff’s claim for economic loss, when in relation to necessary findings as to what the plaintiff’s most likely future circumstances would have been but for the accident: s 126(1) of the MAC Act.

Pre-accident health of the plaintiff

30. The plaintiff had a number of pre-accident attendances on her general practitioner in the date range 9 August 2006, October 2007 to 31 October 2014. The clinical notes of these attendances were in my view, unremarkable, and had no relevance to these proceedings except for an x-ray ordered for the plaintiff’s cervical spine and right shoulder on 31 October 2014: Exhibit “B”, pp 140 – 146.

31. The clinical reasons for those x-rays were not stated. The radiological images of the cervical spine taken at that time were reported as being normal except for a loss of normal cervical lordosis, which was thought to be possibly due to muscle spasm: Exhibit “B”, p 146.

32. It is possible, but unclear, as to whether the need for that x-ray was an isolated incident relating to the plaintiff’s active involvement in sports. The plaintiff cannot recall the surrounding circumstances or the reasons for that x-ray. The reasons for that x-ray therefore remain unclear and I draw no adverse inferences from those circumstances.

33. An examination of the plaintiff’s medical records reveals that on 13 October 2014, there was an unexplained occasion on which the plaintiff was given what was described as a Hospital Anxiety and Depression Scale test: Exhibit “B”, p 114. This was in the form of a multiple choice questionnaire. As the subject matter of that test was not explored in the evidence, it is difficult to draw conclusions from it, even when compared to a similar post-accident test that the plaintiff completed on 17 April 2015: Exhibit “B”, p 115. There was no factual or expert evidence, or submissions, directed at explaining the diagnostic significance of those pre-accident test results, which had no grading score marked on it, as distinct from the post-accident test results. It is therefore not appropriate to make any interpretive findings on that matter: Strinic v Singh [2009] NSWCA 15.

Accident circumstances

34. At the time of the accident, the plaintiff was a front seat passenger in the vehicle being driven by her mother.

35. The accident occurred when, whilst travelling in a line of traffic approaching traffic lights, a vehicle in front slowed down. The plaintiff’s mother responded by slowing down her own vehicle to bring it to a halt as there was a traffic control light ahead displaying a red signal.

36. A collision then occurred when the stationary vehicle in which the plaintiff was seated was struck from behind by the defendants’ vehicle. That collision then forced the vehicle belonging to the plaintiff’s mother into collision with the rear of another stationary vehicle in front: T12.20 – T12.25. In those circumstances, there were two impacts.

37. In relation to the first collision, the plaintiff described its effect to be that half her body went forward, which then caused her head to hit the dashboard of her mother’s vehicle. After the second collision with the car in front, the plaintiff then hit the back of her head on what I infer to have been the headrest of her seat: T12.40 – T12.45.

Injuries

38. There was a dispute as to the locations of the injuries the plaintiff sustained in the subject accident, and in particular whether she had injured her lower back. For the purpose of considering and resolving that dispute, I have undertaken a close examination of the evidence of the plaintiff as well as the conflicting medical opinions. The consideration of those opinions, and my findings recording those matters, appear later in my reasons.

39. Meanwhile, for present purposes, it is sufficient to say I am satisfied that in the subject accident, the plaintiff had suffered musculo-ligamentous strains to her neck, to both of her shoulders, and to her lower back.

Ambulance and hospital assessments of injuries

40. An ambulance which happened to be nearby, attended the scene relatively quickly. The ambulance officers recorded that the plaintiff was suffering from neck pain following a rear-end collision whilst a front passenger in a motor vehicle: Exhibit “1”, p 1. The plaintiff was placed in a neck brace at the scene and taken to Liverpool Hospital: T12.49.

41. At the hospital, the recorded history was that the plaintiff had left-sided neck pain and tenderness following successive forward flexion and extension movements that occurred in the collision. At that time, no complaint of back or other pains were noted as being raised by the plaintiff: Exhibit “1”, pp 2 – 3. There is no evidence that the plaintiff’s back was examined at that time. The plaintiff remained at the hospital for a couple of hours before being discharged: T13.2.

42. The plaintiff said, and I accept, that later on that same evening, she was very sore and was aware of back pain, which did not improve: T13.13 – T13.20. That evidence was not challenged by the defendant.

43. At this point it is convenient to consider the chronology and the content of the medical and allied evidence which resulted from the numerous consultations and assessments that the plaintiff needed to attend with health care professionals after the subject accident.

Initial general practitioner follow-up

44. It appears that the plaintiff initially went to see her family doctor, Dr H Foo, a general practitioner, who apart from arranging radiological investigations, prescribed treatment for her in the form of Panadol Osteo and Deep Heat cream: T13.21 – T13.29. It appears that doctor was not inclined to continue to treat her accident-related problems as this involved dealing with a third party insurer, and it appears that he last saw the plaintiff on 29 February 2015, when he signed a medical certificate: Exhibit “B”, p 6 and reference to this at Exhibit “B”, p 157.

44. The plaintiff’s brother then took her to see Dr Tuan Quang Bui, a couple of weeks later: T13.34. Dr Bui then became her treating general practitioner. It seems from the records and Dr Bui had previously attended upon the plaintiff on 6 September 2010, which was before her accident, for unrelated matters: Exhibit “B”, p 23.

Subsequent medical and allied reviews, assessments and treatment

46. The voluminous pre and post-accident clinical records were tendered. These records comprised some 137 pages which involved some duplication. Much of the historical material within those records did not become the focus of submissions.

47. The following sub-paragraphs set out the chronology of those numerous medical and allied attendances and assessments that the plaintiff has undergone since the subject accident. The chronology of events shows that in 2015, the plaintiff underwent some 50, if not more, medical and allied attendances, including a medical examination at the request of the defendant. In 2016, there were 14 such attendances. The chronology of those occasions is as follows:

1. On 9 February 2015, which was two days after the accident, Dr Foo provided the plaintiff with a certificate of unfitness which was expressed to be valid until 10 February 2015: Exhibit “B”, p 152;

2. On 10 February 2015, at the request of Dr Foo, the plaintiff underwent an x-ray of her cervical spine, which was reported as showing normal facets and normally aligned vertebral bodies. No acute bony injury was demonstrated, the intervertebral disc spaces were preserved, and no paravertebral soft tissue swelling was noted: Exhibit “B”, pp 146 – 147;

3. On 29 February 2015, Dr Foo completed a medical certificate on examination of the plaintiff on 9 February 2015, which stated his diagnosis to be that the plaintiff had a whiplash injury to her neck, and a neck strain, for which she may need physiotherapy: Exhibit “B”, p 6;

4. On 5 March 2015, Dr Bui, the plaintiff’s new general practitioner, certified that the plaintiff had sustained a whiplash injury to her back and to her neck, for which she was prescribed physiotherapy and analgesia. This was the first occasion on which the plaintiff’s post-accident complaint of back pain was noted in any clinical record: Exhibit “B”, p 14;

5. On 5 March 2015, Dr Bui referred the plaintiff to Mr John Leung, a physiotherapist, for treatment: Exhibit “B”, p 124;

6. On 5 March 2015, the plaintiff saw Dr Bui for the effects of the accident on 7 February 2015. He recorded the mechanism of the accident as a collision occurring from behind, causing what I interpret to be a hyperflexion and hyperextension injury, which was described by him as a “whiplash on MVA 7/2/15”: Exhibit “B”, p 52;

7. The recorded clinical details of that consultation were somewhat sparse. Dr Bui noted the plaintiff had been a front seat passenger and had worn a seatbelt, and that her range of movement was “normal, with some discomfort”. Surprisingly, the areas of discomfort were not further described on that occasion. Painkilling medication was prescribed;

8. On 6 March 2015, the plaintiff completed a personal injury claim form in which she stated that her injuries sustained in the car accident were to the middle, and to the left of her lower back, to her neck, mainly on the left side, and to the back of her neck: Exhibit “B”, p 11;

9. On 9 March 2015, the plaintiff commenced what became a course of 24 physiotherapy sessions which continued until 9 July 2015. The physiotherapist diagnosed the plaintiff as having a cervical whiplash and lower back pain: Exhibit “1”, pp 68 – 71;

10. On 21 March 2015, the plaintiff saw Dr Bui again. On this occasion, the whiplash injury in the motor vehicle accident was recorded as having affected the plaintiff’s neck and back. At that time, it was also noted the plaintiff had not improved, but that her condition was stable. Physiotherapy and hydrotherapy were prescribed, as was Panadol Osteo, and CT imaging of the neck and lumbar spine was ordered: Exhibit “B”, p 52;

11. On 26 March 2015, the plaintiff underwent a two level CT of her spine, which was reported as showing low grade disc bulging at C5/C6 and a normal lumbar spine, apart from some minimal diffuse disc bulging at the levels T12/L1, L2/L3, L3/L4: Exhibit “B”, p 29;

12. On 7 April 2015, the plaintiff saw Dr Bui, who at that time, made a diagnosis that the plaintiff had sustained a whiplash injury to her neck and to her back. At that time, the physical and psychological impacts of the accident were discussed with the plaintiff: Exhibit “1”, p 4;

13. On 8 April 2015, Dr Bui wrote to the CTP insurer, Allianz, suggesting the plaintiff be provided with 3 months of access to hydrotherapy following physiotherapy: Exhibit “B”, pp 101 and 121;

14. On 14 April 2015, the CTP Insurer, Allianz, advised Dr Bui that it declined to pay for the hydrotherapy that had been recommended to the plaintiff: Exhibit “B”, pp 135 – 138;

15. On 15 April 2015, Dr Bui noted the plaintiff had ongoing neck and back problems. He also noted the results of CT scanning of her neck, and her overweight condition: Exhibit “B”, p 91;

16. On 16 April 2015, Dr Bui noted the letter from Allianz declining to pay for treatment: Exhibit “B”, p 51;

17. On 17 April 2015, the plaintiff was seen again by Dr Bui for her accident-related neck and back problems, and to discuss the radiology results, her symptoms, the psychological impacts those matters had upon her, treatment options, and strategies for mood management: Exhibit “B”, pp 50 – 51;

18. On 17 April 2015, Dr Bui proposed an updated review and care plan for the plaintiff: Exhibit “B”, pp 93 – 97;

19. On 17 April 2015, the plaintiff completed an anxiety and depression scale test which, in the plaintiff’s 14 answers, indicated she had psychological problems at that time: Exhibit “B”, p 115;

20. On 5 May 2015, the plaintiff saw Dr Bui again. He noted a history of worsening neck and back pain, sleep problems, difficulty finding a comfortable sleeping position, her sporting activities being affected, and that she was “feeling down, upset”. At that time the plaintiff was attending physiotherapy and undertaking exercises at home: Exhibit “B”, p 50;

21. On 7 May 2015, which was 3 months post-accident, Dr Bui noted the plaintiff’s history, as recorded by a dietician, who had noted the plaintiff weighed 107kgs. The dietician noted that since her accident, the plaintiff could not play football, she was depressed, and was eating an unsuitable diet for which management strategies were given: Exhibit “B”, p 50;

22. On 25 May 2015, the plaintiff saw Dr Bui for claim documentation purposes. A history of post-accident anxiety, neck and back pain, sleeping difficulties and ADL difficulties were noted. A request was made for cervical and lumbar MRI scans: Exhibit “B”, p 49;

23. On 26 May 2015, the plaintiff saw Dr Bui again for her accident-related neck and back problems. The pain levels were noted as being 8/10. The plaintiff gave a history of not playing sport, of having difficulties with the activities of daily living, and on examination, restricted back movements were noted. An MRI scan was noted as being contemplated: Exhibit “B”, p 49;

24. On 26 May 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 98;

25. On 28 May 2015, Dr Bui tried unsuccessfully to contact the CTP claims manager at Allianz to discuss the plaintiff’s need for MRI scans and treatment: Exhibit “B”, p 49;

26. On 29 May 2015, Dr Bui prepared an historical report of the plaintiff’s history, management and treatment which followed the subject accident, in which he identified his diagnosis that the plaintiff had a whiplash injury to her neck and her back, and had some resultant reactive anxiety: Exhibit “B”, pp 38 – 40;

27. The plaintiff has continued to see Dr Bui on numerous occasions between 8 April 2015 and 13 October 2015. Some of those occasions involved Dr Bui unsuccessfully attempting to negotiate with the CTP insurer for funding of some therapies he was recommending to the plaintiff: Exhibit “1”, pp 5 – 29;

28. On 11 June 2015, Dr Bui recorded the plaintiff’s history of continuing back pain, difficulty sleeping, neck soreness, and difficulty sitting at a desk to write. He also noted restriction of the range of movements of the affected parts and that the plaintiff was not playing sports. Physiotherapy exercises were noted: Exhibit “B”, pp 48 – 49;

29. On 11 June 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 99;

30. On 12 June 2015, the CTP Insurer, Allianz, wrote to Dr Bui declining to pay for cervical and lumbar MRI scans: Exhibit “B”, pp 104 – 105;

31. On 16 June 2015, Dr Bui called her in to discuss the insurer’s response in declining the request for MRI scans: Exhibit “B”, p 48;

32. On 19 June 2015, the plaintiff was seen by Dr Bui for an unrelated respiratory cough: Exhibit “B”, p 48;

33. On 19 June 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 67;

34. On 23 June 2015, Dr Bui saw her again for accident-related neck and back problems, for which a certificate was issued: Exhibit “B”, pp 47 – 48;

35. On 7 July 2015, Dr Bui saw her again for ongoing problems with her neck and back, noting the plaintiff had some good and bad days, and also noting they were waiting for MRI approval: Exhibit “B”, p 47;

36. On 7 July 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 68;

37. On 24 July 2015, Dr Bui saw her again for accident-related neck and back problems. Pain was noted on a range of movements. The plaintiff was noted to be doing physiotherapy exercises, and going to hydrotherapy, and was taking painkilling medication: Exhibit “B”, p 47;

38. On 24 July 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 70;

39. On 7 August 2015, Dr Bui saw her again for accident-related neck and back problems, and it was noted that pain was keeping her awake at night. She was going to physiotherapy and taking Panadol, but could not afford to go to hydrotherapy: Exhibit “B”, p 47;

40. On 7 August 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 71;

41. On 21 August 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains. Dr Bui noted there was no approval for an MRI scan, and therefore, treatment options were discussed, and certificates were issued: Exhibit “B”, p 46;

42. On 21 August 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, pp 46 and 72;

43. On 21 August 2015, Dr Bui issued a medical certificate in which the plaintiff’s accident-related neck and back problems were identified, and in which he noted the prescription of Panadol Osteo, 665mgs 2 g 8h prn for whiplash: Exhibit “B”, p 73;

44. On 4 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains. It was noted that the pain, especially the back pain, was keeping the plaintiff awake at night. It was also noted that the plaintiff could not afford hydrotherapy. Diagnostic neck and back MRI scans were requested: Exhibit “B”, p 46;

45. On 4 September 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 74;

46. On 8 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains. The back pain was reported to be worsening, and it was noted that neither Medicare nor the insurer would approve the costs of an MRI scan: Exhibit “B”, p 46;

47. On 28 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains: Exhibit “B”, p 45;

48. On 29 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains: Exhibit “B”, p 45.

49. On 29 September 2015, Dr Bui prepared an enhanced or updated primary care plan and referred the plaintiff to an exercise physiologist: Exhibit “B”, pp 77 – 81;

50. On 1 October 2015, the plaintiff underwent a physiotherapy assessment aimed at increasing her fitness: Exhibit “B”, pp 128 – 129;

51. On 13 October 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 82;

52. On 13 October 2015, the plaintiff saw Dr Bui for ongoing neck and back pains and related discomfort, difficulty sleeping, and stress. Counselling was provided, the plaintiff was encouraged to exercise, and access to hydrotherapy was recommended. It was noted she was still managing to go to school: Exhibit “B”, p 45;

53. On 13 October 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 82;

54. On 18 October 2015, the CTP insurer, Allianz, wrote to Dr Bui again declining to pay for cervical and lumbar MRI scans: Exhibit “B”, pp 102 – 103;

55. On 20 October 2015, Dr Bui sent a further copy bundle of the plaintiff’s medical records to the CTP insurer, Allianz: Exhibit “B”, pp 44 – 45;

56. On 21 October 2015, the plaintiff had a further consultation with Dr Bui: Exhibit “1”, p 61;

57. On 2 November 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit “B”, p 83;

58. On 4 November 2015, the plaintiff underwent MRI scans of the cervical and lumbar spines which did not identify any significant pathology: Exhibit “B”, p 57;

59. On 1 December 2015, the plaintiff consulted Dr Bui for accident-related pains. The results of an MRI scan of the neck and back were discussed: Exhibit “B”, p 44. A letter certifying unfitness for school and sport was prepared: Exhibit “B”, p 85;

60. On 11 December 2015, at the request of the CTP insurer, the plaintiff was examined by Professor Paul Myers, a consultant general and vascular surgeon. He noted there was some limitation of voluntary movement of the lumbar and thoracic spines “but not particularly the cervical spine”. He considered the plaintiff had some “mild soft tissue injuries to the cervical and lumbar spines which has now settled”. He considered the plaintiff’s limitation in shoulder movements were mixed and were “not medically plausible”, but there were demonstrated mild limitations of movement of the thoracic and lumbar spines: Exhibit “1”, pp 72 – 84;

61. On 5 January 2016, the plaintiff saw Dr Bui for continuing complaints of accident-related neck and back pain: Exhibit “B”, p 44;

62. On 28 January 2016, the plaintiff saw Dr Bui for continuing complaints of accident-related neck and back pain: Exhibit “B”, p 43;

63. On 28 January 2016, Dr Bui referred her to Dr Mark Sheridan for management of ongoing neck and back pain in view of the results of the radiological scans of the neck and back: Exhibit “B”, p 86. There was no report tendered from that doctor. It is not clear whether the plaintiff was seen by him. The defendant made no submissions on this issue and therefore I draw no adverse inferences;

64. On 1 April 2016, Dr Bui wrote a letter to the plaintiff’s solicitors: Exhibit “B”, p 43;

65. On 5 April 2016, Dr Bui prepared a primary care plan which, inter alia, identified the need for the plaintiff to have dietary advice and exercise for weight control: Exhibit “B”, pp 61 – 65. At that time, it was noted the plaintiff’s neck and back pains were worsening, she was having difficulty sleeping, and having difficulty and pain with getting up and down from the seating position in a chair: Exhibit “B”, p 43;

66. On 5 April 2016, Dr Bui provided her with a certificate of unfitness for school and sport: Exhibit “B”, p 66;

67. On 2 May 2016, the plaintiff saw Dr Bui for her accident-related neck and back problems. It was noted that she was exercising, but in addition to her neck and back problems she was experiencing clicking problems with her knees when walking, and was missing days at school because of back pain: Exhibit “B”, p 42;

68. On 5 August 2016, 18 months post-accident, at the request of her solicitors, the plaintiff was examined by Dr Sheikh Habib, a consultant orthopaedic surgeon: Exhibit “B”, pp 155 – 160;

69. Dr Habib took a history of the plaintiff having ongoing neck problems radiating into the right trapezius area, since the accident, and of the plaintiff having developed low back pain fairly soon after the onset of her neck pain: Exhibit “B”, p 156;

70. Dr Habib also noted the plaintiff took some time off school since the accident: Exhibit “B”, p 156. His findings on examination revealed tenderness over the right trapezius, and minimal tenderness in the lower cervical spine, with minor discomfort on right rotation and left lateral flexion. Considering the plaintiff’s young age, he thought her back movements were somewhat restricted: Exhibit “B”, pp 156 – 157;

71. After Dr Habib reviewed the plaintiff’s history, his findings on examination, and the imaging reports showing the reported disc bulgings in the cervical and lumbar spines, and considering the dual impacts of the collision, he noted that from the viewpoint of his specialty, the plaintiff’s ongoing complaints of significance were continuing low back symptoms of pain associated with long term sitting. He considered the neck and right shoulder symptoms had eased off considerably: Exhibit “B”, p 157;

72. Dr Habib commented on the report of Professor Myers. In that regard, he stated that “I did not think the plaintiff’s prior injuries could be used to exclude any future injuries and complaints”. That opinion, which was reasonable on its face, was not challenged, and I accept it: Exhibit “B”, p 157;

73. Dr Habib was critical of the opinion of Professor Myers, which he considered had disregarded the abnormalities in the plaintiff’s back movements. He considered Professor Myers had based his opinions on terminological and statistical descriptors, and he noted his opinion that the plaintiff had a mild musculo-ligamentous strain to her neck, mostly resolved, and a chronic musculo-ligamentous strain to the back, aggravating facet joint arthropathies: Exhibit “B”, pp 157 – 158;

74. Dr Habib considered the plaintiff’s injuries (to the neck and to her low back) in the subject accident to be substantial contributions to the plaintiff’s current conditions of which she complained: Exhibit “B”, p 158;

75. On 25 August 2016, at the request of the Medical Assessment Service, the plaintiff was examined by Dr Samson Roberts, a consultant psychiatrist: Exhibit “1”, pp 115 – 123;

76. Dr Roberts considered that the subject accident had caused the plaintiff to suffer a psychological injury in the form of a chronic adjustment disorder with mixed anxiety and depressed mood. He noted that the plaintiff had not been referred for any treatment of that condition. He also noted (at Exhibit “1”, p 120) that there were no inconsistencies in the plaintiff’s presentation at interview;

77. Dr Roberts noted the insurer’s query that the plaintiff had not raised any psychological symptoms until her consultation with Dr Bui on 5 May 2015. He did not make any remarks to suggest that the interval between the subject accident and that complaint meant there was no connection between those events. On the contrary, Dr Roberts dismissed the insurer’s query by noting that the plaintiff’s medical records showed that Dr Bui had, on 7 April 2015, made reference in his notes to the psychological impact the accident had on the plaintiff: Exhibit “B”, p 167; Exhibit “1”, p 120;

78. Dr Roberts reported the plaintiff complained of physical limitation, weight issues, amotivation to address that problem, that her psychiatric diagnosis contributes to a reduced level of social and recreational participation, and he noted some anxiety with car travel, some social withdrawal, and a compromise in concentration: Exhibit “1”, p 122;

79. On 10 October 2016, at the request of the Medical Assessment Service, the plaintiff was examined by Dr James Bodel, an orthopaedic surgeon. He considered that in the subject accident, the plaintiff had suffered soft tissue neck, back, thoracic and bilateral shoulder injuries with a direct causal link to the subject accident: Exhibit “1”, pp 101 – 113;

80. At that examination, Dr Bodel took a history of ongoing head and neck pain aggravated by the head down posture, or the overhead use of the arm, radiated pain over the shoulders, aggravated by pushing, pulling or lifting movements, identifying the low back pain as the most troublesome area, aggravated by prolonged sitting, bending, or lifting: Exhibit “1”, p 104;

1. Dr Bodel’s examination of the plaintiff revealed a slight restriction of neck movements, and tenderness on palpation of the lumbo-sacral junction on the right, with guarding in that area: Exhibit “1”, p 105. He apportioned none of those problems to any pre-existing condition: Exhibit “1”, p 112;

2. On 27 July 2017, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Margaret Gibson, a consultant occupational health physician. She considered the plaintiff’s history of left-sided neck, left shoulder and low back pains, with limited standing and walking tolerance. Dr Gibson considered the plaintiff had sustained a soft tissue injury to her neck. She considered that it was unlikely that the plaintiff’s lower back complaints were caused by the accident. She did not explain her reasons for that latter view. This is a matter that requires further consideration in seeking to reconcile the conflicting medical opinions. Dr Gibson stated there were no inconsistencies between the plaintiff’s reported symptoms, complaints and restrictions, and her findings on clinical examination: Exhibit “1”, pp 85 – 100;

3. On 3 August 2017, Dr Habib reassessed the plaintiff. On this occasion, in assessing the effects of the accident, he noted the accident resulted in “acute flexion / extension movements trauma to the neck and low back in the dual impact incident”: Exhibit “B”, p 186;

4. On 18 August 2017, at the request of the plaintiff’s solicitor, Dr Habib prepared a commentary that was highly critical of the 27 July 2017 report of Dr Gibson. In Dr Habib’s commentary, his earlier expressed opinions remained unchanged. Those comments, and the conflicts within those respective opinions, require analysis and if possible, reconciliation as to the basis of those differing views: Exhibit “B”, pp 190 – 191;

5. In his last report, Dr Habib reiterated his previous diagnoses of musculo-ligamentous strains. He noted the neck strain produced intermittent pain, and the low back pain was the result of a chronic strain, with minor radiation to the buttocks. He also added there were minor but appreciable bilateral shoulder movement restrictions due to referred neck symptoms. He stated that the plaintiff’s condition was substantially caused by the subject accident, and identified some work restrictions: Exhibit “B”, pp 186 – 189;

Mitigation

48. In May 2016, Dr Bui expressed the belief that with appropriate and adequate treatment, in terms of analgesia, counselling, hydrotherapy, exercise, a gym programme, and with a chronic pain management programme, the plaintiff should make a good recovery: Exhibit “B”, p 40.

49. Unfortunately, the anticipated recovery has not occurred. This was in the context that the plaintiff was unable to access some of the services that had been recommended to her by Dr Bui. For example, the CTP insurer declined to approve and meet the cost of hydrotherapy treatment and some investigations, as identified at sub-paragraphs [47(14)], [47(25)], [47(27)] and [47(28)] above.

50. The CTP insurer declined a request dated 8 April 2015 to pay for the specific proposal that the plaintiff be provided with a gym membership for the Whitlam Leisure Centre, including for hydrotherapy, stating that there was insufficient medical evidence outlining how the proposed treatment is likely to produce a sustained benefit to the plaintiff: Exhibit “B”, pp 135 – 136.

51. As a result, the opportunity for the plaintiff to obtain any benefits from the suggested treatment aimed at ameliorating her condition, including the benefits of weight loss as it impacted on her injuries, remained beyond her reach. This was in the context that she was an impecunious minor whose family did not have the means to self-fund the suggested treatment.

52. In the circumstances, there is no reasonable basis for suggesting there has been a failure on the plaintiff’s part to take steps to mitigate her damages.   

53. Before making findings concerning the plaintiff’s injuries and their effects in the form of ongoing disabilities, it is necessary to address some conflicts that have emerged within the various opinions expressed by medical experts whose reports have been tendered.

Findings on conflicting medical opinions

54. The conflict between opposing medical opinions in this case with regard to the physical sequelae of the plaintiff’s accident arises from within the reports of Professor Paul Myers and Dr Margaret Gibson on the one hand, who were retained by the defendants, and Dr Sheikh Habib on the other, who was retained on behalf of the plaintiff. Also relevant to the consideration is the certificate of Dr James Bodel, who was retained as an Assessor by the Medical Assessment Service, and the records and views of Dr Bui as the treating general practitioner.

Dispute and approach to analysis

55. The matters in dispute concerned the divergence of opinions of Professor Myers, Dr Gibson, and Dr Habib relating to the nature, extent, and the ongoing effects of the injuries sustained by the plaintiff.

56. Whilst Professor Myers and Dr Habib, and for that matter, Dr Bui and the MAS assessor, Dr Bodel, accepted that the plaintiff had suffered musculo-ligamentous strains to her neck and back, Dr Gibson did not accept that the plaintiff’s back complaints were accident-related.

57. This dispute arises in the context that neither party called oral evidence from any of these medical practitioners, and none of those practitioners were required for cross-examination for the purpose of explaining or further elaborating upon the factual basis and reasons for their respective opinions.

58. In these circumstances, the required analysis must “grapple” and “wrestle” with the opposing opinions in order to seek to reconcile them for the purpose of arriving at relevant findings on such matters.

59. That task has been rendered more difficult and burdensome because the parties did not avail themselves of the readily available procedure for a meeting of experts for the purpose of preparing a joint report, and for the taking of their evidence concurrently. That process would have enabled the evidence of the respective experts to be tested, and this would also have provided each one of them an opportunity to comment on any matters of contention within the opinions expressed by their colleagues: UCPR r 31.35.

60. In those circumstances, where, by reason of the operation of UCPR r 31.30 in the District Court, the respective expert opinions remain in a state of conflict, such conflict stands to be resolved according to whether or not the onus of proof on a particular factual question has been discharged by the party relying upon a particular opinion: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

61. In cases such as this, where differing opinions are expressed by the experts, the resolution of such differences also stands to be resolved by examining the assumptions which underpin those opinions, to determine whether they are sufficiently like the found facts: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39].

62. At the outset of this review, it is convenient to note the effect of the plaintiff’s evidence on relevant matters.

Plaintiff’s evidence

63. As already observed at paragraph [42] above, the plaintiff said she experienced neck, shoulder and low back pains after the accident.

64. The particular matter at issue within the opinion of Dr Gibson was to the effect that the back problems were not related to the accident on 7 February 2015. It appears that Dr Gibson’s reason for that view was the time delay in the first record of back pain, as made by Dr Bui on 5 March 2015.

65. The plaintiff’s unchallenged evidence was of experiencing back pain on the evening of 7 February 2015, which did not improve: T13.13 – T13.20. That evidence was not challenged or contradicted. Nor was that evidence glaringly improbable. The report of Dr Gibson did not explore those events.

Assessment by Dr Bui, the treating general practitioner

66. The overall assessment and considered view of the plaintiff’s injuries by Dr Bui was that she suffered a whiplash injury to the soft tissues of her neck and to her back with reactive anxiety, with the severity of the resultant complaints resulting from those injuries increasing over several months since the accident: Exhibit “B”, pp 39 and 40. This was in the context where Dr Bui had seen the plaintiff on multiple occasions after the accident.

67. The defendant’s attack on the suggestion of a causal connection between the accident and the onset of the plaintiff’s low back problems was based on the respective histories as set out in the clinical notes and contemporaneous records.

68. On 5 March 2015, Dr Bui made his first note of the plaintiff’s accident-related history in the following terms:

“Reason for contact:

Whiplash on MVA 7/2/15

slow down at intersection as car in front slow down, was hit by a car in the back, hit the car in the front

body went forwards then back

walk away

front seat passenger, wore seatbelt

Examination:

rom normal with some discomfort

ul, ll nad

…”

[Exhibit “B”, pp 17 and 52]

[Emphasis added in italics]

69. The abbreviations “ul” and “ll” were not explained, but I infer these abbreviations most probably relate to an examination of the upper and lower limbs, which revealed no abnormality. The reasons for examining the lower limbs were not stated. This may or may not have had anything to do with the plaintiff’s back. Significantly, on this occasion, Dr Bui made no note of the particular site or sites of the plaintiff’s whiplash injury. No mention was made of the neck or the back being affected. He only noted “Whiplash”.

70. On 21 March 2015, the plaintiff had her second consultation with Dr Bui, and on that occasion he clearly noted the plaintiff had problems with her neck and with her back: Exhibit “B”, pp 17 and 52.

71. The plaintiff initially had contact with Dr Foo on 9 February 2015 and 12 February 2015: Exhibit “B”, pp 6 and 152. On those occasions, a certificate was issued for school and a referral was made for the plaintiff to have a CT scan of the neck which occurred but there were no relevant entries made in the clinical notes.

72. The suggestion that emerges from this consideration of the clinical notes is that they do not comprise a complete record or transcript of the plaintiff’s initial contact with that general practitioner after the accident. This was not a matter that was explored at the hearing. Certainly, in the initial contacts that took place in February 2015, the initial focus was on neck problems. However, this does not exclude the possibility that the plaintiff also hurt her back in the accident, which was the overall assessment by Dr Bui, as cited at paragraph [68] above.

Dr Sheikh Habib – reports dated 21 June and 23 August 2016

73. On 4 August 2016, Dr Habib carried out a comprehensive assessment of the plaintiff with the benefit of the clinical records and the report of Professor Myers dated 14 December 2015: Exhibit “B”, pp 155 – 160.

74. After considering the reported circumstances of the accident, Dr Habib noted the plaintiff had been “badly shaken” and her principal concern at the time was to look after her 3 year old nephew. He also noted the history that the plaintiff “had developed low back pain fairly soon after the onset of neck pain radiating to the right trapezius area”: Exhibit “B”, pp 155 – 156.

75. Following Dr Habib’s completion of his examination of the plaintiff and his consideration of the imaging reports, he also noted a further aspect of the history, namely that “It was a few days down the track that she also had low back pain which she tried to deal with by taking analgesics that she had been prescribed by the doctor she saw”: Exhibit “B”, p 157. On my reading of the evidence, it appears that in making those cited comments, Dr Habib was referring to Dr Foo.

76. Dr Habib was of the opinion that the musculo-ligamentous strains the plaintiff had experienced to her neck and to her lower back, thus aggravating mild facet joint arthropathies, were accident-related: Exhibit “B”, pp 157 – 158.

77. In my view, Dr Habib’s initial report provided a properly reasoned basis for those conclusions in that he identified the absence of a past history of low back pain and this led him to conclude the accident had been the substantial contributor to the plaintiff’s back problems: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).

78. A fair reading of Dr Habib’s report shows that he considered the plaintiff’s underlying facet joint arthropathies had become aggravated by the musculo-ligamentous strain she had sustained to her back from the accident. That reasoning satisfies the requirements of the Expert Witness Code comprising UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). Subsequently, on 18 August 2017, Dr Habib reiterated those cited opinions: Exhibit “B”, pp 184 – 189. Dr Habib was not required for cross-examination on those opinions, and therefore those opinions remained unchallenged.

79. On 18 August 2017, following an updated assessment of the plaintiff on 3 August 2017, in an updated commentary, Dr Habib considered that the persistence of the plaintiff’s lower back problems indicated a chronic musculo-ligamentous strain with possible disco-vertebral and facet joint arthropathies: Exhibit “B”, pp 190 – 191.

80. In this context it is not necessary to here undertake a review of Dr Habib’s criticisms of the report of Dr Gibson (Exhibit “B”, pp 190 - 191), which must be examined on its content.

81. Before analysing the opinions of Professor Myers and Dr Gibson, it is convenient to start the analysis with the MAS certificate of Dr Bodel.

Dr James Bodel – MAS certificate dated 16 October 2016

82. The report of Dr Bodel, dated 16 October 2016, being a MAS certificate, was not an expert medical report as such, because it was not the subject of the requirements of the Expert Witness Code: UCPR Sch 7 cl 5(1)(c). As a MAS assessor, Dr Bodel was not compellable to give evidence in these proceedings.

83. Nevertheless, Dr Bodel’s certificate must be considered subject to questions of the weight to be attached to it, given his reasoning. That said, there is nothing that emerges from within the certificate of Dr Bodel that gives rise to any concerns over its content or his conclusion.

84. Dr Bodel considered that the subject accident had caused the plaintiff to sustain soft tissue injuries to her neck, her thoracic and lumbar spines, and to both shoulders: Exhibit “1”, pp 102 and 108. That view was open to him on the evidence he had before him.

85. In arriving at that conclusion, Dr Bodel considered the plaintiff’s history of initial onset of neck pain and a later onset of pain in the lower back, which has led to ongoing symptoms in the neck, radiating to both shoulders, and ongoing symptoms in the lower back: Exhibit “1”, p 104. He examined those areas in light of these symptoms (Exhibit “1”, p 105) and observed that the plaintiff has a mechanical backache (Exhibit “1”, p 106), and that the symptoms with which she presented were quite genuine and were related to the subject motor vehicle accident.

86. Although Dr Bodel’s certificate was not a medical report as such, as explained at paragraph [82] above, it nevertheless had the required hallmarks of a medical opinion that complied with the rules because it was appropriately reasoned: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). The absence from Dr Bodel’s certificate of a statement of compliance with the expert witness code only arises because a MAS certificate does not require such a statement. Nevertheless, in my view, Dr Bodel’s certificate provides a useful point of comparison for the other opinions that were tendered and relied upon in this case.

Professor Paul Myers – report dated 14 December 2015

87. In considering the opinion of Professor Myers, dated 14 December 2015, it is significant to note that it was based on an assessment he made of the plaintiff on 11 December 2015, which was 10 months after the plaintiff’s injury. In that evaluation, he did not suggest that the plaintiff had not injured her back in the subject accident. The aspects of his opinion that require evaluation are as follows:

1. He thought the plaintiff had some mild soft tissue injuries to the cervical and lumbar spine which had “settled” by the time he examined her: Exhibit “1”, p 79;

2. He thought the plaintiff’s demonstrated shoulder movements were “not medically plausible”, and that her complaint of “the limitations are very mixed and cannot be sustained on any medical reasoning”: Exhibit “1”, p 80;

3. He thought that the plaintiff “may have been sore for a day or two after the motor vehicle accident but no longer”: Exhibit “1”, p 81;

4. He thought the plaintiff “may have had mild soft tissue injuries to the cervical and lumbar spines” but he saw “no evidence of any shoulder injury caused by the subject MVA or secondary to it”: Exhibit “1”, p 82.

88. In considering those opinions, for the reasons that follow, I have concluded that very little weight should be given to those opinions by Professor Myers.

89. First, the opinion of Professor Myers was anchored to the circumstances of his examination of the plaintiff on 11 December 2015, and is therefore of little assistance to determining the nature and cause of the plaintiff’s present problems, as she described in her evidence.

90. Secondly, insofar as Professor Myers expressed diagnostic conclusions as to the effects of the accident on the plaintiff, in my view, his opinions are afflicted by the following matters.

91. The opinions of Professor Myers as extracted at sub-paragraphs (1) to (4) of paragraph [87] above are not reasoned according to the standard required by UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c) in that he has not given adequate reasons for each opinion he has expressed.

92. In that regard, Professor Myers did not state his reasons for his view that the plaintiff may have been sore on a day or two after the accident, but not for longer, or why the plaintiff’s shoulder movements were not medically plausible, or which of the plaintiff’s limitations were “very mixed”, and why they could not be sustained on any medical reasoning. As an expert, it was incumbent upon him to give such reasoned explanations for those views. Accordingly, because such reasons were absent, I consider his cited opinions to be of little if any assistance to determining the damages issues calling for decision in this case.

93. Furthermore, as explained below, significant elements of confusion arise from the report of Professor Myers. Although, consistent with the certificate of Dr Bodel and Dr Habib, Professor Myers accepted the plaintiff had sustained soft tissue strains to both her cervical and her lumbar spines (Exhibit “1”, p 79), or that the plaintiff “may have had” such injuries in a mild form (Exhibit “1”, p 82), he did not explain what he meant by his stated view that these problems had “settled” when he saw the plaintiff.

94. Professor Myers’ opinion in that respect was ambiguous in that “settled” may mean the plaintiff’s symptoms may have stabilised or had plateaued down to a lesser level of effect, or alternatively, they may have completely resolved. It is unclear as to which meaning he intended to convey. It is possible Professor Myers may have meant to convey the former interpretation, which is consistent with his comments that there were limitations of movement in the plaintiff’s thoracic and lumbar spines: Exhibit “1”, pp 75 and 80. However, the ambiguity in his report remains unexplained.

95. Professor Myers’ opinions on the likely duration of the plaintiff’s symptoms, were without explanation, and were in part, internally inconsistent. This is evident because, on the same page of his report (Exhibit “1”, p 81), at one point he said the plaintiff may have been sore as a result of the subject motor vehicle accident for a day or so, but no longer. Then, on the same page, he said she may have been a little sore for a week or so. The internal variation in that range of opinions, which gives rise to an inconsistency, remained unexplained.

230. Professor Myers did not discuss his findings on examination concerning the observed decrease in lateral bending, flexion and extension and rotation movements: Exhibit “1”, p 78. His comment about the plaintiff “having no major issues with her activities of daily living” was made in juxtaposition of the plaintiff’s complaint that she does very little around the house “because of her back”: Exhibit “1”, p 78. His reasoning does not seek to either deal with or reconcile that history. Instead, he stated, ambiguously, as observed at paragraph [94] above, that the plaintiff had some mild soft tissue injuries to the cervical and lumbar spines “which has now settled”: Exhibit “1”, p 79. In view of the identified ambiguity, I consider his commentary to be unreliable.

231. The medical reports give no useful guidance to the assessment of this head of damage. They do not deal with the specific tasks of heavy housework, and absent requisite qualifications and reasoning, they are not prescriptive nor are they of useful guidance: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [93]; Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]. Instead, I consider the plaintiff’s own experience, taken together with the medical opinions on the nature of her physical problems, provides the most useful guidance in providing insight into this question: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [54].

232. I consider that the plaintiff’s plan to live independently of her family at some stage soon is a reasonable one for a young person in her position.

233. When she does so, in view of her disabilities she will most probably have difficulty with the heavier items of housework, and household tasks that will involve her in lifting, bending, carrying, and the other tasks the medical evidence identifies as representing sources of difficulty for her.

234. I accept the plaintiff’s evidence that when she lives apart from her family, it is most probable that she will be paying someone to assist her with those tasks. The difficulty for assessment is that the likely timing of the need for such assistance is not clear, and the number of hours per week required for such tasks is not clear either. Those difficulties justify the buffer approach to assessment, as provided for in the authorities already referred to in connection with the claims for future economic loss and future treatment expenses.

235. On this head of damage, doing my best to be fair to the plaintiff whilst not being unfair to the defendant, I consider the appropriate buffer sum to be $10,000. I therefore assess the plaintiff’s damages for future domestic expenses in the buffer amount of $10,000.

Past out-of-pocket expenses

247. The parties have agreed that the plaintiff’s past out-of-pocket expenses should be assessed in the amount of $6508.25.

Summary of damages assessment

248. My assessment of the plaintiff’s damages is summarised as follows:

(a) Future economic loss	$100,000
(b) Future treatment expenses	$9,000
(c) Future domestic assistance	$10,000
(d) Past out-of-pocket expenses	$6,508.25
Total	$125,008.25

Disposition

249. The plaintiff has succeeded in obtaining a damages assessment for $125,008.25. She is therefore entitled to a judgment in her favour in that amount.

Costs

250. As the plaintiff’s claim has succeeded, she is entitled to an order that her costs of the proceedings be paid on the ordinary basis, unless a party is able to show an entitlement to some other costs order.

Orders

251. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $125,008.25;

2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days' notice if further or other orders are required.

**********

Decision last updated: 04 October 2017