Venci Leo Pavicic v Samantha Scott Ely Webb - [2010] ACTSC 37

VENCI LEO PAVICIC v SAMANTHA SCOTT ELY WEBB
[2010] ACTSC 37 (30 April 2010)

DAMAGES – personal injury – whiplash injury to neck – probable facet joint injury – psychological condition secondary to chronic pain – loss of earning capacity – whether failure to submit to recommended treatment was failure to mitigate loss

EVIDENCE – death of expert witness before trial – whether statement of witness admissible – whether statement should be excluded as prejudicial because of loss of opportunity to cross-examine

Longhurst v Hunt [2004] NSWCA 91
Goldsborough v O’Neill (1996) 131 FLR 104
Hughes v Janrule Pty Ltd [2010] ACTSC 5
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Ardlethan Options Ltd v Easdown (1915) 20 CLR 285
Watts v Rake (1960) 108 CLR 158
Tuncel v Renown Plate Co Pty Ltd [1976] VR 501.

Civil Law (Wrongs) Act 2002
Court Procedures Rules 2006 r 1246
Evidence Act 1995 (Cwlth) ss 63, 135

Evidence Act 1995 (NSW) s 63

No. SC 520 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 30 April 2010

IN THE SUPREME COURT OF THE )
) No. SC 520 of 2004
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:VENCI LEO PAVICIC
Plaintiff

AND:SAMANTHA SCOTT ELY WEBB
Defendant

ORDER

Judge:  Master Harper
Date:  30 April 2010
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $904,895.85

This is an action for damages for personal injury arising out of a motor vehicle collision. Liability has been admitted, and the action comes before the Court for the assessment of damages.

The plaintiff

The plaintiff, Venci Leo Pavicic, was born in 1971. He was thirty-two at the date of the accident, 10 March 2004, and is now thirty-eight. He was born in Australia to migrant parents from Croatia, and grew up in Canberra, leaving St Edmund’s College, Griffith, at the end of 1989. He did not qualify for his higher school certificate in his final year, and attempted it the following year, unsuccessfully, at the Canberra Institute of Technology. He had a chequered employment history, working at times as a labourer and at other times as a shop assistant, with substantial periods out of work, until he found permanent employment in November 2002 with CE Industries as a storeman and delivery driver. He continued in that employment until his car accident.
In the years immediately before his accident, he played competitive soccer, and also engaged in recreational tennis, fishing and running. He finished in the top 2% of runners in the Canberra 10km Fun Run in 2002 and again in 2003. His soccer required regular weekly training sessions in season. He suffered a number of injuries playing soccer but had recovered from any after-effects of these by the time of his accident.
In 1999 he saw an ophthalmologist who diagnosed a pupilliary membrane defect which affected his eyesight, more so in the right eye, and created reading difficulties for him. It is not suggested that this condition interfered with his ability to work or to drive a car.
The plaintiff lived at the time of the accident, and continues to live, at home with his parents and brother in the suburbs of Canberra. His father is a labourer. His mother is not employed. His brother works from home as a share trader. The plaintiff has had casual relationships in the past but remains a single man.

The accident

On 10 March 2004 the plaintiff was driving his car south on Streeton Drive, Weston. As he approached the T-junction of Namatjira Drive, the defendant’s car drove out from his left, making a right turn across his path, in contravention of a give way sign. The front of his car collided with the side of the defendant’s car. The impact appears to have been a heavy one. The plaintiff’s car was damaged beyond repair. The plaintiff was taken to the Canberra Hospital by his brother, who came to the scene at the plaintiff’s telephone request. The plaintiff was offered transport to the hospital by ambulance but declined this.

The injuries

The plaintiff suffered a number of immediately obvious injuries, including a broken tooth, which probably struck the steering wheel on impact, and an injury to the right leg which the plaintiff thought struck the ignition key. He had various cuts, bruises and abrasions from which he made a generally good recovery. But within hours of the accident, he developed neck pain, and this became his major continuing problem.
He required dental treatment, including about four months after the accident a crown on the broken tooth. After that he found that he still had intermittent occasional pain on biting. Otherwise he recovered from his injuries, other than the neck injury, within about five weeks.
He went back to work about a week after the accident. His employer provided him with light duties for a couple of days but then required him to resume his full pre-accident duties. He found that the work led to severe neck pain, and also general bodily weakness and fainting spells. He took some leave on holiday pay, but in the event did not return to work. The work included lifting and carrying heavy weights, including 40kg cement bags and heavy chemical drums, and he found that he could not cope with it.
He was referred by his general practitioner for physiotherapy and a CT scan of the cervical spine. About six weeks after the accident he went on to Centrelink sickness benefits, and has continued to receive those benefits since. He was prescribed painkillers. He found that the physiotherapy was unhelpful and exacerbated his pain. He described a burning pain at the back of his head, secondary to the neck pain, which he experienced as very hot. He found that he was able to obtain some relief from this pain by going out into the cold night air and pulling his hair. This might give him two hours relief from pain, but generally the burning pain was constantly present for months. His general practitioner tried him with various painkilling, antiflammatory and other medication. A particular exercise set by his physiotherapist, which involved rolling back on his neck on a Mediball, caused what he described as incredible exacerbation of his neck pain, accompanied by burning in the back of the head. This would sometimes be followed by what the plaintiff described as a warm shivering pain spell. He said that the area at the back of his head, having been sharply painful, would turn numb. The numbness would go down his body and he would lose all strength and almost pass out.
The plaintiff instructed his solicitors in May 2004. They notified the defendant’s authorised insurers of the claim, providing the documentation required by the Civil Law (Wrongs) Act 2002. The insurers wrote to the plaintiff’s solicitors seeking particulars of the claim. They also wrote to the plaintiff direct. They told him, among other things, that they offered a rehabilitation service, managed by their rehabilitation advisers, and that they would be asking him to sign an authority “to allow rehabilitation to take place”. They told him that they might be asking him to undergo a medical examination with an independent doctor. They gave the impression in the letter that they would pay his treatment expenses, although only at Australian Medical Association rates, with the plaintiff needing to meet any gap. In relation to most of the plaintiff’s treatment, this impression proved to be incorrect.
In June 2004, the plaintiff’s general practitioner referred him to Dr Geoffrey Speldewinde at Capital Rehabilitation and Pain Management in Canberra. Dr Speldewinde is a medical practitioner specialising in rehabilitation, pain medicine and musculoskeletal medicine. The plaintiff made an appointment and saw him for the first time in August 2004.
On 14 July 2004 the plaintiff’s solicitors, in a letter furnishing the insurer with the particulars requested, informed the insurer that the plaintiff did not wish to accept its offer of referral to a rehabilitation provider. A claims consultant employed by the insurer, acknowledging this, wrote back asking the solicitors to “provide details regarding the steps your client is taking to mitigate his injuries and economic loss to enable a return to work.” The solicitors replied that the plaintiff had been referred to Capital Rehabilitation by his general practitioner, and wished to be fully informed prior to undertaking a rehabilitation program with a treatment provider of his choice. The insurer, or at least the claims consultant with the conduct of the matter, seemed unprepared to take no for an answer. The plaintiff’s solicitors arranged for him to be examined by Dr Graeme Griffith, a consultant surgeon, at the end of June 2004, and sent a copy of his report to the insurer. The insurer responded by letter of 2 September 2004, saying “according to Dr Griffith, your client has not yet returned to employment. Could you please advise of your client’s intentions regarding our offer for rehabilitation, as per previous correspondence.” The solicitors wrote drawing attention to their letter of 14 July and confirming that the plaintiff did not wish to accept the offer of referral to the insurer’s rehabilitation provider. During September 2004 the plaintiff commenced a program with Capital Rehabilitation.
I recount this chronology for the reason that counsel for the defendant submits that the plaintiff’s refusal of the insurer’s offer of its rehabilitation program represented a failure to mitigate his damages, a subject to which I shall return.
The plaintiff’s evidence was that Dr Speldewinde initially saw him and outlined strategies for rehabilitation. The plaintiff then saw an exercise therapist as part of the program and said that he saw this therapist “probably 90% of the times at rehab”. The plaintiff was told of the importance of movement in recovering from his injuries. He performed exercises using a machine strapped to his head with weights attached, performing neck movements including flexion, extension and rotation. He was told that these resistance exercises using weights were designed to get his muscles working, which should reduce his pain. He did not find the program successful in that regard but continued with it. The exercises caused an exacerbation of his pain. There were times when the pain would last for days and even weeks. He described it as severe pain, with virtually no sleep at all. The plaintiff nevertheless persisted with the program because he accepted that movement was imperative to recovery. He believed that whilst the exercises were causing immediate increase in pain, the program would lead to recovery in the medium to longer term.
The exercise therapist also introduced the plaintiff to what he called trigger therapy. This involved pressing, presumably with the therapist’s fingers, into trigger points in the region behind the shoulders to soften the muscles. This therapy was continued for the whole of the program, which the plaintiff said took about a year. The trigger point therapy was extremely painful but after about two minutes led to local muscular pain relief which might last for an hour. The plaintiff also undertook supervised exercise using a Gravitron hydraulic machine for two or three months in the first half of 2005.
Dr Speldewinde gave the plaintiff facet joint injections of local anaesthetic in November and December 2004, and also an injection which he understood was of cortisone. This course of injections did not improve the plaintiff’s pain, and the use of the Gravitron caused significant increase in neck pain. At the conclusion of the plaintiff’s time at the rehabilitation clinic, his evidence was that his neck pain had not improved at all.
In August 2005 the plaintiff commenced a course of acupuncture treatment, but this did not help either.
In November 2005 the plaintiff’s solicitors referred him to Dr Hugh Veness, psychiatrist, presumably in the first instance for a medico-legal report. Dr Veness arrived at a provisional diagnosis of adjustment disorder with depressed mood, secondary to cervicobrachial neuropathic pain disorder, caused by the whiplash injury in the motor accident. As a psychiatrist, he recognised that the latter was outside his area of specialist qualification and experience, and recommended that the plaintiff be assessed by a pain specialist in the area. He suggested Dr David Champion in Sydney, and arrangements were made for the plaintiff to see Dr Champion in July 2006. Dr Champion suggested that the plaintiff try using Norspan patches, and changed his medication, but this regime made no difference to the plaintiff’s symptoms. If anything, the use of the patches made him feel weaker and more light-headed.
In July 2007 Dr Veness, after reviewing the plaintiff, recommended that he undergo psychometric testing of cognitive function by a neuropsychologist. He suggested Dr Tania Lioulios. She undertook such an exercise in August and September 2007, over a period of some seven hours, and concluded that the plaintiff’s profile was consistent with a diagnosis of severe chronic pain disorder with injury adjustment difficulties, major depressive order with features of traumatic anxiety, low self-esteem, agitation and low frustration tolerance; and cognitive disorder.
The plaintiff’s evidence was that immediately after the accident, he believed, on the basis of what he was told by his doctors, that he would be likely to make a complete recovery within about two months. As time went on, despite his continuing neck pain and associated symptoms, he continued to believe that he would make a full recovery. When he eventually realised that he was not improving, he became angry. His anger was directed at the defendant, and also at the treatment he had been subjected to.
By the time of the hearing, he was unable to do much around the house, and unable to sit in the same position for any length of time. He had used his brother’s computer to look on the internet for home-based work but had been unsuccessful in finding anything satisfactory. He concluded that much of what was on offer required payment up front and was probably a scam. He was no longer driving a car, and had not done so for some two years before the hearing. His social life was very limited.
For almost five hours over a period of two days his credibility was thoroughly tested by counsel for the defendant. At the end of the cross-examination I was left with the impression that the plaintiff was generally a truthful and reliable witness. In an action as hard-fought as this one I might have expected from previous experience with the same insurer some investigation and surveillance evidence relating to the plaintiff’s activities, but there was none, although I had the impression from some of the questions asked in cross-examination that some surveillance of the plaintiff’s activities had been undertaken. Whether or not I am correct about this, certainly no lay evidence was called which contradicted any of the plaintiff’s evidence about the extent of his symptoms and disabilities or the way he spends his time.
The plaintiff was cross-examined about his poor work history before the accident. There was, however, no suggestion that his employment with CE Industries at the time of the accident was at risk or that his service there had been in any way unsatisfactory. I accept his evidence that he enjoyed that work and would have continued with it while it remained available to him. There is no suggestion that it was not to remain available permanently. I accept that most of his sporadic work in earlier years had been of a casual nature and that he had not given it up voluntarily but had tried to find work where he could.
A number of discrepancies were put to the plaintiff in cross-examination between his evidence-in-chief and words he had used in histories he had given to various doctors. It is unnecessary for me to deal with each of the inconsistencies. It is enough to say that none of these minor differences caused me to doubt the plaintiff’s general truthfulness. It is a matter of common experience that human memory is fallible, and minor discrepancies of this kind are to be expected.
An example of the focus of the cross-examination was the plaintiff’s application, signed and dated 15 January 2008, for renewal of his driving licence. The form includes a number of questions with yes and no boxes. The plaintiff conceded that he had ticked the no box for the question “Do you have any long term disability that could affect your control of a motor vehicle?”. In circumstances where the plaintiff’s unchallenged evidence was that he had not driven a motor vehicle for something like a year prior to completing the form, I hardly see this as a major blow to his credit. He was clearly capable of driving a car a short distance in an emergency, and might conceivably have been called upon to do so. Additionally, although the plaintiff did not proffer this as an explanation, it is common knowledge that a driving licence is a useful, indeed sometimes almost indispensable, means of identification for purposes quite unrelated to the driving of a motor vehicle. This aspect of the cross-examination seemed to me to amount to little more than clutching at straws.

The medical evidence

Oral evidence in the plaintiff’s case was given by his general practitioner, Dr Leerdam; Dr Speldewinde; Dr Veness; and Dr Champion. Additionally, counsel for the plaintiff tendered reports by Dr Griffith; the plaintiff’s dentist Dr Nathan; and the psychologist, Dr Lioulios.
Dr Leerdam accepted the plaintiff as genuine, although he conceded that his role as a general practitioner was to take his patients at face value and accept what they told him. His evidence was that on the balance of probabilities the plaintiff’s condition was due to the injuries he had sustained in the car accident. His view was that the plaintiff had suffered a whiplash injury from which he had developed chronic neck pain and headaches as part of a regional pain syndrome. His prognosis for full recovery was poor. He said that he, like the plaintiff, had been hoping for a physical cure for the plaintiff’s pain. He agreed that psychological counselling during 2007 might have given the plaintiff good prospects of coming to terms with his pain and getting on with his life better than he had. He said that part of the problem was that the plaintiff was not working and was reliant on Centrelink benefits. He was unable to afford the cost of such a program. He agreed that the plaintiff had also been resistant to the notion of psychological intervention because he had been looking for a physical cure. He also agreed that the plaintiff’s pain syndrome and consequent depressive symptoms had reduced his motivation to get back to some kind of work. Dr Leerdam thought that the completion of the present court proceedings would provide what he described as good closure for part of the plaintiff’s problems, by providing some official acknowledgement that the plaintiff had been wronged in the accident. At the same time, he thought that the plaintiff would continue to need medication for pain relief, and he thought it would be helpful for the plaintiff to participate in counselling at some stage. He thought that the plaintiff would require at least six to twelve months of counselling, but could aim at finding part-time work after three to six months. He remained of the view that the plaintiff’s prognosis for full recovery was poor. Counselling was not going to fix his pain but would help him live with it.
Dr Leerdam did not see the plaintiff’s focus on attempting to find a physical cure as unreasonable. He regretted that he had been unable to offer the plaintiff any help with pain relief. He thought that the plaintiff would continue to focus on a cure, and did not think that completion of the legal proceedings would change anything in that regard. He suspected that he and the plaintiff would have to keep working long term, both physically and psychologically, on the plaintiff’s problems. He did not think that the case itself, or the impending hearing, had increased the plaintiff’s focus on his symptoms.

Dr Griffith, consultant surgeon, saw the plaintiff on three occasions between June 2004 and June 2005. When he first saw the plaintiff he thought that the prognosis was good, but his initial optimism had not been borne out when he saw the plaintiff a year later. By that time, in his opinion, the plaintiff had developed a chronic pain syndrome with psychological as well as physical symptoms. He thought that the plaintiff should be referred to a dedicated pain management clinic.
He next saw the plaintiff in July 2006. He confirmed his diagnosis of chronic pain syndrome, and thought that the prognosis was guarded considering that the plaintiff had been symptomatic for more than two years since his injury. He noted that the plaintiff had not related well to a psychologist he had seen as part of Dr Speldewinde’s practice, but remained of the view that the plaintiff should have six or possibly more sessions with a psychologist to provide guidance regarding stress and pain management.
Dr Hugh Veness, psychiatrist, saw the plaintiff twice, in November 2005 and January 2007, on both occasions for more than an hour and a half. He was concerned about whether the cause of the plaintiff’s physical symptoms had been properly diagnosed, and recommended a referral to Dr Champion in Sydney. His psychiatric diagnosis was of adjustment disorder with depressed mood, which he described as a common sequel of chronic pain. Sometimes this could be helped with antidepressant drugs but only if the pain itself was treated adequately. He said that the plaintiff at the end of 2005 was in no fit state for rehabilitation or return to work. Dr Veness thought that the plaintiff would benefit from about ten hourly sessions with a clinical psychologist, to learn pain management strategies and treat his depressed mood. He expressed concern that without such treatment and in particular without adequate pain relief, the depressive disorder could develop into a major one.
When Dr Veness saw the plaintiff again a little over a year later, he seemed more relaxed and less angry, but lower in mood. He fulfilled the criteria for a diagnosis of a major depressive episode. There were factors present militating against recovery. The plaintiff had responded poorly to drug treatment. He had no special education or training for appropriate work, in particular the kind of work that could be performed by a chronic pain sufferer. He was too depressed to work and might well have cognitive impairment resulting from his chronic depressive illness and chronic pain disorder. The prospects for future gainful employment, even on a part-time basis, were poor. He recommended psychometric testing and an occupational psychology assessment by Dr Lioulios, to investigate whether there were any avenues for rehabilitation with a view to ultimate return to work. Dr Veness remained of the view that sessions of psychotherapy would be valuable but noted that the plaintiff had no resources to fund such treatment.
In his oral evidence, Dr Veness said that he would still recommend intervention by a clinical psychologist. He thought that the plaintiff would need to see the psychologist every week for about two years. The aim would be to get the plaintiff to commence some form of retraining with a view to a return to work. Dr Veness thought that could be commenced within about a year of the psychological treatment. He emphasised that the outcome of such a course of treatment or counselling would be dependent on the plaintiff obtaining adequate pain relief.
When Dr Veness’ report was tendered, the day before he gave evidence, counsel for the defendant objected to that part of his earlier report where he expressed a provisional diagnosis of pain of a neuropathic type, by which he meant a central (spinal cord) sensitisation to nociception. In other words non-noxious stimuli such as pressure and muscle fatigue were transmitted as noxious or painful stimuli. He recommended, as I have previously mentioned, that the plaintiff be assessed by a pain specialist such as Dr Champion to confirm this diagnosis. Counsel’s objection was based on Dr Veness’ lack of qualification to give a physical diagnosis of this kind. The objection was not pressed, nor were the doctor’s qualifications or experience tested, when he gave oral evidence. Dr Veness, although a psychiatrist, is a medical practitioner of more than thirty years standing and, in his words, has sub-specialised for twenty-five years in attempting to return injured patients to work. Many of his patients over the years have had physical injuries causing chronic pain to which their psychiatric condition has been secondary. I accept that Dr Veness has taken a special interest in chronic pain. I would have thought it highly artificial for him to refrain from expressing the opinion he did, particularly where his next step was to recommend a referral to a physical pain specialist. His evidence about his provisional diagnosis should be admitted.
Dr Speldewinde first saw the plaintiff in August 2004, and worked with him until June 2005. He formed the view that the plaintiff’s pain largely emanated from the left C3-4 facet joint. His difficulty coping with pain had resulted in major occupational disability, that is incapacity for employment. The plaintiff underwent a neck-specific strengthening program supervised by a rehabilitation exercise therapist within Dr Speldewinde’s rehabilitation and pain management centre. Dr Speldewinde described the program as dramatically helpful in terms of improved cervical function, range of movement and reduction in severity of pain, although fatigue and difficulty coping with sustained levels of the reduced but still mild to moderate pain continued to restrict the plaintiff’s ability to return to the workplace. Dr Speldewinde arranged for him to be seen by a clinical psychologist at the centre. The plaintiff saw the psychologist only once. He did not relate well to the psychologist, and did wish to pursue this aspect of the program. Dr Speldewinde recommended percutaneous radiofrequency neurotomy to the joint he had identified, which might have provided the plaintiff with nine months of pain relief, providing a window of opportunity for further attempts at rehabilitation and the addressing of other aspects of his continuing disabilities.
In cross-examination Dr Speldewinde described his program as a rehabilitation program which was aimed at improving function. It was not surprising or particularly unusual for a patient to display such improvement in range of movement in the neck without the same degree of improvement in pain level.
Dr Speldewinde explained that the plaintiff had an unusual rigid style of personality, which Dr Speldewinde found somewhat frustrating. The plaintiff seemed reluctant to consider work other than his pre-accident work. He ultimately came to the view that the plaintiff may well have been simply struggling to cope with severe and intense neck pain. He conceded that in coming to this conclusion he was largely reliant on the history the plaintiff had given him of his physical symptoms.
Following Dr Veness’ recommendation, Dr Champion saw the plaintiff in Sydney in July 2006. He thought that the plaintiff’s physical behaviour during the consultation was consistent with neck pain. The plaintiff displayed tenderness on both sides in the suprascapular region and on both sides of the back of the head. On pressure to the upper cervical spine, there was tenderness at C5-6 and pain at C6-7.
Dr Champion’s opinion at that time was that the plaintiff had suffered from severe chronic pain, initially multifocal and later unrelentingly in the cervical spine. Early neuropathic pain in the arms had settled. There was some deep referred somatic pain to the suprascapular regions. He had cervicogenic headaches. Dr Champion said that there was increasing recognition in the medical profession that whiplash-associated disorders gave rise to an array of symptoms and signs. The facet joints were more prominently involved than the discs.
Dr Champion noted that there was considerable functional impairment. The plaintiff felt unable to sit still and concentrate. He was unable to work as a storeman-driver. His emotional responses had also been quite disabling, including anger, frustration and depression of mood. Treatment by a clinical psychologist, he thought, might help the plaintiff to accept his condition.
The plaintiff went to Sydney again in September 2006 to see Dr Champion. Dr Champion thought that the headaches might be amenable to occipital nerve blocks, particularly on the left. There would be a 50 to 60% chance of a good outcome.
In March 2008 Dr Champion, in response to a request from the plaintiff’s solicitors, provided a detailed letter of background explanation about chronic pain, neuropathic pain, idiopathic pain disorders and available treatment. He expressed the opinion that the symptoms of which the plaintiff complained were characteristic of chronic whiplash-associated disorder. He explained that pain medicine had been advancing quite rapidly, and had left many medical practitioners a fair distance behind. He regarded it as important for medical practitioners involved with patients suffering pain to understand and keep up with advances in the field. Helpfully, Dr Champion enclosed with his report copies of a number of learned papers from medical journals and other publications in Australia and elsewhere in the world.
Counsel for the defendant raised some objections to the whole of this last letter with its attachments, on the basis that it was not a medico-legal report but more of an academic essay. I did not deal with the objection immediately. Counsel for the defendant did not pursue it, either when Dr Champion gave his oral evidence, or in final address. It does not seem to me that the objection can be sustained. Clearly the author of the letter expresses an expert opinion, and, by providing the attached papers, explains in great detail the source of his opinion.
Dr Champion saw the plaintiff again before the hearing, in June 2008. He acknowledged that the pain-related disability reported by the plaintiff was somewhat higher than one would commonly find with the set of physical signs, but he said that there was not a strong correlation between findings on examination and reported pain-related disability. He thought that the plaintiff was probably reporting reliably, although it was difficult to be certain. He concluded that the plaintiff was suffering from whiplash-associated disorder of the cervical spine with multilevel origin of pain and deep somatic referred pain to the suprascapular regions, as well as cervicogenic headaches. He continued to experience emotional responses including frustration, anger and some depression of mood. It would be very difficult for him to work as a storeman-driver. He should be vocationally assessed and encouraged to train towards work which would not be unduly physically stressful or demanding. Any employment would need to be commenced gradually, for example for two or three hours twice or three times a week, and upgraded under supervision. It was likely that there would be slight improvement over the years, but probable that the plaintiff would not make a complete physical recovery. The plaintiff’s condition would be susceptible to aggravation on relatively minor mechanical provocation.
In July 2005 the defendant’s insurer arranged for the plaintiff to be assessed by Dr Christopher Oates, a consultant occupational physician. Dr Oates did not give oral evidence and his curriculum vitae was not tendered, although there was no challenge by counsel for the plaintiff to his expertise. Dr Oates’ first report was on the letterhead of a company named Med-Assess Australia Pty Ltd in Victoria.
Dr Oates saw the plaintiff again in November 2007. His report at that time was on letterhead identifying him with the rehabilitation organisation Recovre, with a post office box in Sydney but no practice address. A third letter from Dr Oates in March 2008 is on his own letterhead and identifies him as an approved medical specialist for the New South Wales Workers’ Compensation Commission, an injury management consultant with Workcover NSW, an approved medical assessor with the NSW Motor Accidents Authority and a trained impairment assessor for Comcare. The letterhead displays no physical or postal address, merely a fax number and an email address. I am unable to arrive at a finding about the length of his experience as a medical practitioner or whether he is actually in practice at all. This is unfortunate when I am required to balance his opinion against those of other medical specialists.
In his first report, Dr Oates expressed the opinion that the plaintiff had suffered a musculoligamentous strain of the cervical spine and adjacent posterior shoulder girdle muscles with an undiagnosed sensation of heat in the neck with semi-blackout feeling and weakness. There were other relatively minor injuries. The prognosis was in Dr Oates’ opinion very good. The injuries to the neck and shoulder were soft tissue in nature. The plaintiff was normal on examination, with a normal range of movement. The objective findings were not consistent with the plaintiff’s subjective complaints of ongoing pain in the neck and shoulder girdle muscles. This was evidence of symptom exaggeration, though Dr Oates was unable to tell whether the exaggeration was conscious or unconscious. The tendency following a whiplash injury was for improvement over time. The plaintiff’s complaints of continuing pain at the same level more than a year after the accident were inconsistent with this expectation.
Dr Oates said that the plaintiff had an air of resignation and possible depression. He felt that the major factors preventing the plaintiff’s recovery and return to pre-injury functional were emotional or psychosocial. Dr Oates’ opinion was that the plaintiff’s injuries had resolved, but that he was unlikely to admit improvement and was likely to claim continuing physical restrictions. He was fit to return to work without restriction.
In his report of November 2007, Dr Oates repeated that there was no objective evidence to justify the plaintiff’s complaints of continuing pain on an organic physical basis. He did not require any physical treatment. Dr Oates was not qualified to comment on whether there was a need for psychological treatment. The plaintiff was in his opinion fit to work full-time without restriction, “from the point of view of any continuing physical injury.” Dr Oates said that he was not qualified to comment as to whether any restrictions should be imposed from the point of view of the plaintiff’s chronic pain complaints or psychological condition. These would be matters for a pain management specialist and for a psychiatrist. The prognosis for these factors was poor. Dr Oates concluded “there is no objective evidence of any impairment from physical injury arising from the accident. Assessment of disability is not a medical assessment.” I found this conclusion somewhat cryptic but take Dr Oates to be saying that any disability suffered by the plaintiff cannot be explained by physical injury. There might be an explanation related to psychological factors or a chronic pain syndrome, which would be outside Dr Oates’ area of expertise.
In a subsequent letter in March 2008, Dr Oates clarified his conclusion by saying that he could not comment on chronic pain caused by a psychological or psychiatric condition. He was qualified to comment only on chronic pain caused by a physical condition. He had been unable to identify any objective evidence of physical abnormality to enable him to relate the plaintiff’s complaints of chronic pain to the effects of any physical injury.
The defendant’s solicitors arranged for him to be assessed by a clinical psychologist in Sydney, Dr Fernando Roldan, in July 2007. Dr Roldan subjected the plaintiff to a range of tests, and diagnosed him as suffering from an adjustment disorder with depressed mood. He thought that the plaintiff might benefit from cognitive behaviour therapy, as well as specific pain management treatment. The test results were consistent with the plaintiff having consciously over-reported his physical symptoms and disability.
After providing this report, Dr Roldan was given a copy of Dr Oates’ second report. Dr Roldan commented that Dr Oates’ findings had implications for the reliability of the plaintiff’s report of psychological symptoms. Dr Roldan’s earlier diagnosis had been “heavily dependent on the reliability of his physical diagnosis”. Although he did not say so in so many words, I take Dr Roldan to have departed from his earlier diagnosis.
Dr Roldan was provided, during the first half of 2008, with a copy of Dr Lioulios’ report and with copies of documents produced under subpoena by Dr Lioulios. He did not agree with her assessment methodology or conclusions. Regrettably, he seems to have engaged in something of a personal attack on Dr Lioulios. When provided with a copy of his comments on her report, Dr Lioulios, perhaps not surprisingly, seems also to have responded at something of a personal level.
Dr Lioulios died before the hearing. Counsel for the defendant objected to the tender of her reports on the basis that she was not available for cross-examination. I assume for the purposes of the objection that the defendant’s solicitors gave the plaintiff’s solicitors notice prior to her death, requiring her attendance for cross-examination. Where such a notice is given, r 1246 of the Court Procedures Rules 2006 provides that the report may not be tendered unless either the expert attends for cross-examination; the expert has died; or the Court gives leave. Hence there is no prohibition contained in the Rules of the tender of Dr Lioulios’ reports. The rules are, of course, overridden by any applicable provision within the Evidence Act 1995 (Cwlth). Counsel for the defendant relied in his objection on the general discretion to exclude evidence contained in s 135 of that Act. That section relevantly provides that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.
Counsel relied on a decision of the New South Wales Court of Appeal (Sheller and Santow JJ A and Stein AJA, Longhurst v Hunt [2004] NSWCA 91. In an action for damages for personal injury, the defendant denied that there had been any impact between the vehicle he was driving and the plaintiff, a pedestrian. Counsel for the defendant at trial had tendered signed statements by two eye-witnesses. The witnesses had each been served with a subpoena. A solicitor acting for the witnesses notified the defendant’s solicitors that both of them were going overseas for an indefinite period. One left after service of the subpoena, and the other was leaving before trial. The defendant’s solicitors sent copies of the statements to the plaintiff’s solicitors and gave notice of intention to tender them pursuant to s 63 of the Evidence Act 1995 (NSW) which is in identical terms to s 63 of the Commonwealth Act. Stein AJA noted that there had been no evidence that the defendant’s solicitors had done anything to require the attendance of either witness after receiving the letter from their solicitor. No consideration had been given, for example, to the taking of their evidence by audio-visual link or on commission, or to the issue of a bench warrant or an application for adjournment of the trial. His Honour also noted that each statement contained substantial inaccuracies and inconsistencies from the undisputed facts. Further, even by the hearing of the appeal the solicitors for the defendant were unaware of the present whereabouts of the witnesses or their availability for a new trial. The decision of the trial judge to reject the tender of the statements was upheld.

The decision in Longhurst v Hunt is readily distinguished. The witnesses in that case were eyewitnesses, that is witnesses as to fact. The explanation for their absence was inadequate. The statements contained inaccuracies and inconsistencies, and the trial judge rightly decided that it would be unfair to the plaintiff to admit them without any opportunity for cross-examination. In the present case, Dr Lioulios is dead. The factual portions of her first report, setting out the tests she administered to the plaintiff and the results, are not in dispute. The evidence counsel for the defendant seeks to keep out is evidence of her opinion. Counsel’s primary concern appeared to be with an inference said to arise from her report that in her view the plaintiff might have suffered brain damage. I did not draw that inference from the report. All of the other evidence is to the contrary.
It is, I suppose, conceivable that a court might refuse to admit the report of an expert witness on the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the other party. It is apparent from the annotations to s 135 at [1.3.14560] of Odgers, Uniform Evidence Law, 8^th edition, that the “unfairly prejudicial” basis for refusal to admit evidence will rarely apply to a trial without a jury.
The present defendant has had the benefit of tendering expert evidence by Dr Roldan, an expert in the same field as the late Dr Lioulios. Indeed, the Court has the benefit of further reports by Dr Lioulios and Dr Roldan after each had seen the initial report of the other. It is difficult to see what more might have been achieved by cross-examination. I note, for whatever it is worth, that counsel for the plaintiff saw no need to cross-examine Dr Roldan. It is a frequent occurrence for a case to be conducted and determined on the basis of conflicting opinions of health professionals based upon reports, without either expert being cross-examined. The Court in these circumstances will generally assume that the witnesses would have adhered to their opinions if cross-examined, and will draw no adverse inference against either party by reason of their declining the opportunity to cross-examine: see Goldsborough v O’Neill (1996) 131 FLR 104 per Miles CJ; Hughes v Janrule Pty Ltd [2010] ACTSC 5 at [89]. I am satisfied that in the present case no unfair prejudice to the defendant is occasioned by the admission of the reports of Dr Lioulios.
She examined the plaintiff on 31 August and 1 September 2007, over a period of seven hours. Her diagnosis was of severe chronic pain disorder, major depressive disorder and cognitive disorder “not otherwise specified”, each being conditions dealt with in the United States Diagnostic and Statistical Manual of Mental Disorders, 4^th edition (DSM IV). As I have said, Dr Roldan disagreed with this diagnosis. The difference in opinion seems to depend in large measure on the level of acceptance by the two psychologists of the plaintiff’s genuineness and of whether there was anything physically wrong with him.

Findings

I generally accept the plaintiff as a witness of truth, whilst acknowledging some exaggeration in his evidence, particularly about the intensity and constancy of his pain. Despite this, I accept that the plaintiff suffers from pain which is perceived by him to be severe and which is with him most of the time. I accept that the pain is at such a level that he could not work, even part-time, at his pre-accident work.
The medical evidence which impressed me most was that of Dr Champion, an acknowledged expert in the field of pain medicine. I accept that there is a physical cause for the plaintiff’s pain, which has never been determinatively identified. I accept the opinion of Dr Champion that more probably than not the site of the injury causing the pain is one or more of the apophyseal or facet joints of the cervical vertebrae. I accept that damage of this kind is not detectable on present-day radiological investigations.
To the extent that Dr Oates came to the conclusion that there was no physical injury causing the plaintiff’s complaints of pain, I prefer the opinion of Dr Champion, with its logical explanation for the source of the pain.
It follows from this that I prefer the opinions of Dr Veness and Dr Lioulios to that of Dr Roldan as to the plaintiff’s psychological condition. I accept that he is suffering from a recognisable psychological condition, probably, as concluded by Dr Veness, an adjustment disorder with depressed mood and a major depressive episode. I accept the opinion of Dr Veness, and also that of Dr Lioulios, that the psychological condition is a result of the physical injuries which the plaintiff suffered in the motor accident.
Counsel for the defendant made much of his submission that the plaintiff should have accepted the insurer’s offer of rehabilitation, and that his failure to do so should be seen as a failure to mitigate his damages. I do not accept the submission. The offer was put to the plaintiff after he had been referred by his general practitioner to Dr Speldewinde, a rehabilitation specialist who conducted a multidisciplinary practice under the name Capital Rehabilitation. Hardly surprisingly, the plaintiff preferred to accept the advice of his general practitioner in this regard rather than that of the insurer of his adversary in this litigation. Counsel for the defendant submitted that the program offered by the insurer was a true rehabilitation program aimed at getting people back into the paid workforce, whereas Dr Speldewinde’s program was not a true rehabilitation program. No expert evidence was called by the defendant, for example by a medical practitioner of Dr Speldewinde’s standing in the profession, to explain the difference between the two programs, or why the insurer’s program would have been more likely to succeed in rehabilitating the plaintiff than Dr Speldewinde’s program. Even if such evidence had been called, on the issue of failure to mitigate I would need to view the circumstances from the plaintiff’s perspective at the time he was required to choose between the two avenues for rehabilitation being offered to him. I can see nothing unreasonable in the response provided by the plaintiff’s solicitors to the insurer in their letter of 14 July 2004 rejecting their rehabilitation offer. The solicitors explained, in a letter of 27 July 2004, that the plaintiff had been referred by his general practitioner to Capital Rehabilitation. The insurer seems to have ignored this, and the earlier rejection, and to have continued to press for a response to their earlier offer. The plaintiff’s solicitors told them again by letter of 15 September 2004 that the offer was rejected.
Counsel for the defendant relies on a further letter of 18 August 2005. By this time the plaintiff had completed the Capital Rehabilitation program, though admittedly not including the psychological component, after the unsuccessful initial consultation with a psychologist. Relevant portions of that letter included:
It would appear from the report of Dr Oates dated 13 July 2005 that no further treatment is required by your client and we will not support payment for further treatment.
We do extend a final offer of assistance from a rehabilitation provider to aid in coordinating your clients return to work. I also put you on notice that your clients continuing refusal of assistance amounts to a failure to mitigate their loss. Please advise your clients position in relation to this request.
I feel it is appropriate, after considering Dr Oates report, to make an offer settlement. The offer is for of [redacted] inclusive of all economic loss and out of pocket expenses but exclusive of costs and disbursements.
In accordance with the Civil Law (Wrongs) Act 2002, we will require a written response within 3 months which should include either:
1) An acceptance or a rejection of the offer; or
2) A counter offer.
If this offer is acceptable to your client, please telephone me on the number below. I will then forward you a “settlement agreement” form for your clients signature. [sic]

On 16 January 2006, the insurer wrote again to the plaintiff’s solicitors in the following terms:
We refer to our previous letter dated 18 August 2005 where an offer to settle your client’s claim was raised.
It appears a response has not been received. Unless we hear from you within fourteen (14) days we will have no option but to contact the claimant directly and inform them of the offer.
Please telephone me as soon as possible, so that an early resolution of the claim can be achieved.

In passing, the statement in the third sentence was manifestly wrong. The insurer had a number of other options, including the withdrawal of the offer.

On 1 March 2006 the plaintiff’s solicitors wrote to the insurer rejecting the settlement offer. No mention was made in either of those subsequent letters to the rehabilitation offer.
The offer of rehabilitation seems to me inconsistent with the previous paragraph of the letter, of 18 April 2005, that is with the assertion that the plaintiff required no further treatment and the statement that the insurer would not pay for further treatment. The offer came at a time when, to the insurer’s knowledge, the plaintiff had just completed a twelve-month rehabilitation program with Dr Speldewinde’s practice. The “final offer” of rehabilitation cannot be read as a genuine offer. It seems to me that the purpose of including the paragraph in the letter was, in the event of rejection of the settlement offer, to ground a subsequent submission about failure to mitigate. This interpretation is reinforced by the fact that in the next letter of 16 January 2006, a response was required to the settlement offer but no mention was made again of the rehabilitation offer.
In support of the failure to mitigate submission, the defendant’s solicitors tendered a report of 27 September 2007 by Ms Catriona Millar, consultant occupational therapist. She had been asked to express an opinion as to whether the plaintiff might have benefited from rehabilitation assistance by her, had he accepted offers of such assistance in September 2004 or July or August 2005. She was provided with some medical reports and background information but does not seem to have been given a history of the plaintiff’s attendance at the rehabilitation program conducted by Dr Speldewinde’s practice. She said that her practice had a 97% success rate of return to work, so that the chance of a successful outcome at any of those dates would have been excellent. Her opinion was that if she had become involved in the plaintiff’s rehabilitation at the earliest of those dates, she would have had him back to full-time work within four months. If she had not become involved until mid-2005, she says that it would have taken her eight to twelve months to achieve the same result. If she had not become involved until the last of the dates, it would have taken her twelve to eighteen months to get him back to work. The chance of a successful return to work by then would have been reduced but still feasible.
I admire Ms Millar’s optimism, but having regard to the other evidence which I accept, I am far from satisfied that her intervention, at any of the dates put to her, would have made any significant difference in getting the plaintiff back into the workforce.
In July 2007 the plaintiff underwent an evaluation of his functional and vocational capabilities by a physiotherapist and a vocational psychologist at an organisation, Vocational Capacity Centre Pty Ltd, in Sydney. The organisation identified a number of occupations for which the plaintiff was in their view suited, and capable of undertaking. These including light delivery driver, general clerk and office assistant, sales assistant, service station console operator, court orderly and control room security officer. These jobs paid between $550 and $650 net per week. There was no evidence of the availability of any such employment, full-time or otherwise.
It was also submitted by counsel for the defendant that the plaintiff’s decision not to continue with counselling by the psychologist at Capital Rehabilitation should be seen as a failure to mitigate his loss. But there is no evidence that any of his treating doctors urged him to continue with this part of the program, or, until he saw Dr Veness late in 2005, that any of them referred him to another psychologist. In any event, his decision not to continue with the psychologist was, it seems to me, a rational one arising from his lack of rapport with the psychologist and the impression he had gained that the psychologist’s starting point was that his problems were in his mind rather than a consequence of his neck pain and headache. The test for whether or not a patient’s refusal of treatment was reasonable depends upon the patient’s state of knowledge at the relevant date: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 at 350. I am not satisfied that the plaintiff’s conduct in this regard should be characterised as a failure to mitigate his loss, nor am I satisfied that continuing to attend sessions with the psychologist involved would have reduced his loss.
Counsel for the defendant further submitted that the plaintiff failed to mitigate his loss in refusing to submit to the occipital nerve block treatment recommended by Dr Champion. Dr Champion’s evidence was that this mode of treatment carried a 20% probability of long term pain relief, and a 50 to 60% chance of pain relief for a period of months. Dr Champion said that if he had been in the plaintiff’s position he would have submitted to the treatment, but he acknowledged that at least 25% to 30% of patients declined such a recommendation, some through fear of needles and others through concern about the idea of injecting in the region of a nerve at the back of the head. The question for me is whether the plaintiff’s decision not to undergo this treatment was reasonable or unreasonable. There is no question that a plaintiff is bound to do all things reasonable to mitigate his loss: Ardlethan Options Ltd v Easdown (1915) 20 CLR 285 per Isaacs J at p 296. The burden of proof of establishing that the course suggested would have mitigated the plaintiff’s loss, and the question whether the plaintiff’s decision not to have the treatment was reasonable, lies upon the defendant: Watts v Rake (1960) 108 CLR 158 per Dixon CJ at p 159. If the Court is satisfied that part of the plaintiff’s loss could have been avoided and that the plaintiff has failed, through unreasonable action or inaction, to avoid it, the plaintiff is not entitled to recover damages for the avoidable loss: Tuncel v Renown Plate Co Pty Ltd [1976] VR 501 at p 504.
I am not satisfied in all of the circumstances that the plaintiff’s decision not to submit to the occipital nerve block was an unreasonable one. I accept that if he had had the treatment, it would probably have resulted in a period of some months when he would have been free of most of his pain, but the pain would probably have returned at the end of that period. The procedure could have been repeated, perhaps many times. Whilst the pain-free periods, if this had happened, would have reduced the plaintiff’s general damages for pain and suffering, I am not persuaded that there was a prospect of any significance that they would have given him much opportunity to exercise any increase they might have provided in his earning capacity.
I am satisfied that the plaintiff has not worked for reward since his accident, and that this has been because of impairment of his earning capacity resulting from his injuries. He is entitled to recover damages for loss of earnings for the whole of the period. At the time of the accident he was earning about $550 per week before tax. No doubt there has been some increase in rates of pay for storeman-drivers in the six years since his accident. It is probably not unreasonable for me to take as a guide the range suggested by the Vocational Capacity Centre in mid-2007 for the suggested unskilled occupations, as broadly equivalent to what the plaintiff might have been earning if he had not been injured. The range, as I said, was of the order of $550 to $650 net per week. I propose to adopt a mid-range figure of $600 net per week as the average amount the plaintiff would have earned over the period as a storeman-driver. There is no reason to assume that he would not have been in the same employment. However, I must recognise that there can be changes of circumstances, for a particular company or for an industry, over time. Having regard to the plaintiff’s previous work record, if he had found himself out of work he would not necessarily have been able to find another job immediately, and the award for past loss of earnings should be reduced marginally to reflect the possibility that this might have happened.
As to the future, I find that the plaintiff would probably have continued to work in a similar occupation at a similar rate of pay, if he had not been injured, until about the age of sixty-five.
I think that after the case is over, there is some prospect, though not a high one, that the plaintiff will get back into full-time work. The award of damages in this case will put him in a financial position where he will able to afford to follow the advice of his doctors by undergoing psychological counselling to assist him in managing and living with his pain. I accept the preponderance of medical evidence to the effect that he would need, if he is to rejoin the workforce, to start with a sympathetic employer working for two or three hours a day, two or three days a week, and to build his hours up over time. I am not sure that there are many employers who would be willing to give him that opportunity. Certainly the defendant has called no evidence about the availability of work said to be within the plaintiff’s capacity. I think that the correct approach is to perform a calculation of the present value of the plaintiff’s future earning capacity on the assumption that he had not been injured, and to reduce this to reflect that he has not totally lost that capacity, and that there is a possibility that he will earn income in the future. The conventional reduction in calculating an award of damages for total loss of earning capacity to reflect the vicissitudes of life is 15%. In the present case, to reflect the likelihood that the plaintiff might earn some income in the future, I would propose to reduce the amount I would award for total loss of earning capacity by 25%.

Damages

I think it likely that the plaintiff will have to live with a level of pain which will sometimes be severe, and sometimes mild to moderate, for the rest of his life. It seems to me that an appropriate award of general damages for pain and suffering and loss of enjoyment of life would be $120,000.00 of which I would apportion $50,000.00 to the past. I allow interest on the past component of $7,000.00, reflecting some weighting of the award to the period soon after the accident. Out of pocket expenses are agreed at $13,095.85. This is additional to a hospital account of $364.45 which has been paid by the defendant’s insurer and should not be included in the damages. The plaintiff is entitled to interest at commercial rates on the total expenses he has paid, $11,784.85. That amount has been paid gradually over the years. I allow interest of $3,000.00. For future treatment I allow $20,000.00.
If the plaintiff had worked since the accident and earned $600.00 net per week, he would have earned by now just on $190.000.00. I reduce this to take account of the possibility that he might have had periods out of the workforce and allow $180,000.00 for past loss of earnings, plus interest of $50,000.00.

The present value of a continuing loss of $600.00 net per week for a man aged thirty-eight, to age sixty-five, reduced to take account of mortality, is approximately $560,000.00. I have explained my reasons for reducing that amount by 25% to arrive at a proper figure to compensate the plaintiff for the impairment of his earning capacity for the future. I allow $420,000.00 for that component of the plaintiff’s damages.
I allow for loss of superannuation benefits an amount equal to 9% of the allowance for past loss of earnings, and 9% of the amount allowed for loss of earning capacity for the future, a total of $91,800.00.
Although a Griffiths v Kerkemeyer claim had been particularised, this was not pressed on hearing.
The individual components of the award of damages are therefore:

General damages:	$120,000.00
Interest on past component	$7,000.00
Out of pocket expenses:
Past	$13,095.85
Interest on payments by plaintiff	$3,000.00
Future	$20,000.00
Loss of earning capacity:
Past	$180,000.00
Interest	$50,000.00
Future	$420,000.00
Loss of superannuation benefits	$91,800.00
$904,895.85

Upon consideration, this sum seems to me to represent a proper reflection of the effect upon the plaintiff of the negligence of the defendant.
There will be judgment for the plaintiff for $904,895.85. As I have said, this amount is additional to the payments for hospital expenses previously made by the insurer of $364.45. I shall hear the parties as to costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 30 April 2010

Counsel for the plaintiff:  Mr FMG Parker
Solicitors for the plaintiff:  Maliganis Edwards Johnson
Counsel for the defendant:  Mr MA McDonogh
Solicitors for the defendant:  Sparke Helmore
Date of hearing:  1, 2, 3 & 4 December 2008
Date of judgment:  30 April 2010