Wallace v Sherrell

[2015] NSWDC 179

District Court

New South Wales

Medium Neutral Citation:

Wallace v Sherrell [2015] NSWDC 179

Hearing dates:

7, 8, 9 July & 19 August 2015

Date of orders:

25 August 2015

Decision date:

25 August 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1. Verdict and judgment for the plaintiff in the sum of $746,165;

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 – negligence admitted; DAMAGES – assessment of claimed heads of damage – evaluation of conflicting medical and allied opinions

Legislation Cited:

Civil Liability Act 2002, s 5D
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 126, s 131, s 136, s 141B
UCPR, r 31.27, r 31.28, Sch 7 cl 5(1)(c)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Coles Supermarkets Australia Pty Limited v Haleluka
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Glen v Sullivan [2105] NSWCA 191
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Mason v Demasi [2009] NSWCA 227
Penrith City Council v Parks [2004] NSWCA 201
Pham v Shui [2006] NSWCA 373
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25

Category:

Principal judgment

Parties:

Monica Wallace (Plaintiff)
Mitchell Sherrell (Defendant)

Representation:

Counsel:
Mr A Lidden SC with Ms E Welsh (Plaintiff)
Mr W Fitzsimmons (Defendant)

  Solicitors:
Brydens (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2014/57353

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [3]
Issues	[4] – [5]
Credit	[6] – [8]
Facts	[9] – [170]
Plaintiff’s background	[10] – [13]
Accident circumstances	[14]
Injuries and treatment	[15] – [20]
Subsequent motor vehicle accident	[21]
Medical and allied reviews	[22] – [125]
Resolution of conflicting medical opinions	[126] – [163]
Disabilities	[164] – [168]
Effects of disabilities on plaintiff’s ability to work	[169] – [170]
Mitigation	[171]
Assessment of damages	[172] – [245]
Past economic loss	[173] – [175]
Future economic loss	[176] – [185]
Past loss of superannuation	[186] – [189]
Future loss of superannuation	[190]
Past paid domestic assistance	[191] – [198]
Past gratuitous domestic assistance	[199] – [221]
Future paid domestic assistance	[222] – [226]
Future gratuitous domestic assistance	[227] – [232]
Fox -v- Wood	[233]
Future out-of-pocket expenses	[234] – [243]
Past out-of-pocket expenses	[244]
Summary of damages assessment	[245]
Disposition	[246]
Costs	[247]
Orders	[248]

Nature of case

1. The plaintiff, Monica Wallace, brings these proceedings against the defendant, Mitchell Sherrell, claiming damages for negligence in respect of personal injuries she sustained in a motor vehicle accident involving the parties.

2. The accident occurred at about 9:10am on Friday 4 March 2005, when the plaintiff’s stationary vehicle was struck from behind by the vehicle being driven by the defendant. In those events, the plaintiff’s vehicle was forced into collision with a vehicle that was stationary and in front of her vehicle. The collision caused the plaintiff to suffer musculo-ligamentous injuries to the cervical, thoracic and lumbar regions of her spine. The defendant has admitted the collision occurred due to negligence on his part.

3. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (“MAC Act”) and the Civil Liability Act 2002 (“CL Act”).

Issues

4. The issues calling for determination relate to the extent to which the plaintiff is entitled to an award of damages in the context of an alleged pre-existing degenerative condition of her spine, and an alleged further aggravating injury or event that occurred on 16 December 2008.

5. The issues that arise concerning the nature and extent of the plaintiff’s injuries, the residual effects of any ongoing disabilities, and the effects of these matters upon the plaintiff’s earning capacity and upon her ability to carry out her domestic activities, require findings concerning the conflicting medical evidence as a precursor to the assessment of the plaintiff’s entitlement to damages.

Credit

6. The plaintiff impressed me as being a truthful witness who, if anything, tended to understate her described accident-related problems. She was careful and scrupulous in answering questions asked of her in cross-examination and avoided claiming recollections where she could not recall past events, even where this was to the possible detriment of her case: T12.2; T12.10 – T12.14; T40; T66.19.

7. I reject the attack on the plaintiff’s credit to the effect that her claim as to the cause and extent of her ongoing disabilities should be doubted as she did not make accident-related complaints to her doctor on each occasion she saw her because of an asserted absence of symptoms: T54.27. I accept the plaintiff’s evidence that she went to see her doctor for different reasons at different times and did not always consider it necessary to record her complaints, particularly since she had been told she had to live with her problems: T55.8, T56.26 – T56.29, T57.24. In my view, her evidence should be seen as being entirely credible and reliable.

8. I also formed the view that the evidence of the plaintiff’s husband, Mr Ian Wallace, was also credible and reliable. This is notwithstanding that, understandably, he was to a degree combative in some of his answers to questions asked of him in cross-examination when the defendant sought to question the extent of the plaintiff’s claimed inability to carry out her domestic tasks.

Facts

9. Unless otherwise stated, my findings of fact are as follows.

Plaintiff’s background

10. The plaintiff is presently aged 58 years. At the time of her injury on 4 March 2005, she was aged 47 years. She lives at home with her husband. Her children are adults and they are independent.

11. The plaintiff was trained and has worked as an enrolled nurse. She has pursued a career in that profession for many years. At the time of the accident, she was employed by St Joseph’s Hospital as an enrolled nurse. Her duties included the transportation and care of day surgery patients. But for the subject accident, I consider that the plaintiff’s most likely circumstances would have been that she would have remained in that employment, or in similar employment, without impairment from symptoms of the kind she suffers now, and earning income at least according to the rate she was paid by her pre-accident employer, plus periodic CPI increments: s 126(1) of the MAC Act.

12. The plaintiff’s pre-accident health was generally good. In February 1985 the plaintiff had a previous accident the effects of which had resolved. She had pre-existing Crohn’s disease which had been successfully treated in September 2004 by means of a bowel resection procedure. At the time of the subject accident the plaintiff had no impediments or impairments in her ability to carry out her work or her domestic activities.

13. In about 2003, the plaintiff’s husband had been diagnosed with leukaemia. This had been treated with three lots of chemotherapy, resulting in the remission of the active phase of his disease. As a result he has been left in a weakened physical state. Despite this, he has largely taken over the plaintiff’s role of performing a range of domestic duties. Those circumstances have some relevance to the plaintiff’s claim for the cost and value of domestic assistance that has been and will be necessary to provide to her as a result of the subject accident.

Accident circumstances

14. The accident occurred around 9.15am on the morning of 4 March 2005 whilst the plaintiff was driving to work. She had just driven through an intersection and became stationary with her foot on the brake when her vehicle was forcefully struck from behind by the vehicle being driven by the defendant. This caused the plaintiff’s vehicle to be forced into collision with the vehicle in front. In those events, the tailgate of the plaintiff’s vehicle became jammed and the front-end was pushed-in quite significantly: T39.26. The plaintiff described the impact as quite intense, causing her to be thrown around inside her vehicle: T11.27 – T11.34. Elsewhere in the recorded medical history, this was described as a rag doll experience: Exhibit “B”, p 80; T73.50 – T74.2. The plaintiff found the experience intensely shocking, and at the time she struggled to stand on her legs: T11.45 – T11.50.

Injuries and treatment

15. Following the accident, an ambulance attended the scene just before 10.00am and transported the plaintiff to Westmead Hospital: Exhibit “2”. The ambulance personnel considered and recorded that the plaintiff had mild diaphoresis and complained of a feeling of weakness, with some mild pain over the previous surgical scar from her bowel resection surgery.

16. At the hospital it was thought necessary to obtain an x-ray of her neck as it may have been injured. The ambulance transport report noted that at the scene, the plaintiff denied neck pain. The plaintiff fairly refrained from claiming a recollection of her actual injuries at that time, and stated she could not now recall the specific details of those injuries: T40.12 – T41.13.

17. The plaintiff described having rested the whole weekend following the accident. At that time she was experiencing neck, low back and right knee problems: T12.20 – T12.40.

18. Notwithstanding the plaintiff’s limited present recollection concerning the extent of the injuries she received in the accident, I infer from the evidence she gave, and the medical reports which described her post-accident condition, especially in the earlier years, that in the subject accident, the plaintiff suffered injuries to the cervical, thoracic and lumbar regions of her spine.

19. On 7 March 2005 the plaintiff attended upon her general practitioner Dr Anne Pollard, who noted that the plaintiff presented with generalised muscle pain, including persistent headache, neck pain, pain in the trapezii, upper back pain, upper abdominal pain, and a painful right knee, all weekend: Exhibit “B”, p 14. Dr Pollard also noted that over the ensuing days, the plaintiff had developed soreness in her lower back, right leg and she developed altered posture in her cervical and thoracic spine: Exhibit “B”, p 9.

20. Dr Pollard’s clinical note of 8 March 2005 recorded a history that the plaintiff had experienced the onset of her lumbar symptoms in the previous 36 hours, which was a few days after the subject accident, with some right leg pain in the L5 dermatomal distribution: Exhibit “B”, p 14. That item of history takes on some importance to the plaintiff’s case in view of the analysis and conclusions of some of the defendant’s medical experts, and the submissions the defendant made based on those expert opinions.

Subsequent motor vehicle accident

21. In September 2005 the plaintiff had a further motor vehicle accident in which her vehicle had been struck from behind. That accident did not give rise to any injury to her and there is no credible evidence suggesting that there had been any lasting deleterious effects from that accident: T13.44 – T13.49.

Medical and allied reviews

22. The parties tendered voluminous bundles of medical and allied reports numbering in excess of 300 pages. That material was later supplemented with further medical material during the trial.

23. As an aide to the analysis of that material, and as an aide to the resolution of conflicting medical opinions, in the paragraphs that follow under this sub-heading, I have extracted and set out a detailed chronology of respective examinations and opinions within those various reports as a prelude to an analysis of them.

24. Following the accident, the plaintiff was taken by ambulance to the emergency department at Westmead Hospital. The arrival was recorded as being at about 10.16am on 4 March 2005: Exhibit “B”, pages 1 and 9.

25. On that occasion, it was recorded that the plaintiff had been involved in what was stated to have been a low speed motor vehicle collision in which her own vehicle had been struck from behind at a low speed, and where it was determined, after x-ray, that no injury had been found in the plaintiff’s cervical spine: Exhibit “B”, p 1. The determinant of what was low level was not identified.

26. At about 10.30am on 4 March 2005, following triage, the plaintiff was admitted to a bed at the hospital. At that time she was noted to have been complaining about her legs “feeling weak and wobbly”, and was feeling the beginning of a headache starting at the base of her neck and moving up. After the results of her x-ray were available, the protective hard collar she had been wearing was removed, she was ambulated, given oral analgesia for her headache, and subsequently, at 12:35pm, she was discharged from hospital, accompanied by her husband: Exhibit “3”.

27. It should be noted in contrast, to what was recorded at Exhibit “B”, pages 1 and 9, that the plaintiff gave evidence to the effect that the impact to her stationary vehicle from behind was forceful in that she was thrown about in the vehicle after the impact: T11.34 – T11.45. I accept the plaintiff’s evidence in that regard. The evidence in the ambulance transport report and in the hospital discharge summary suggesting otherwise should in my view be discounted in the analysis of injury mechanics. This is because its purpose was to record matters of injury and treatment, not matters affecting the liability analysis: Mason v Demasi [2009] NSWCA 227. For example, those matters suggesting the plaintiff’s vehicle had minimal damage to the front of her vehicle do not take into account the fact that she had her foot on the brake pedal of her vehicle when it was struck from behind. Great caution is required in relying on such records or notes in a liability or mechanical analysis of the events of the accident.

28. The medical reports generally disclose that between 7 March 2005 and 20 April 2011, the plaintiff had consulted her general practitioner, Dr Anne Pollard, on a total of 75 occasions: Exhibit “B”, pages 9 – 14. In addition, as appears from the other reports, there were further consultations subsequent to that last date.

29. On 7 March 2005, Dr Pollard referred the plaintiff for physiotherapy treatment for “whiplash”: Exhibit “B”, p 2.

30. On 8 March 2005, significantly, Dr Pollard made a note that indicated her examination of the plaintiff some 4 days after the accident had revealed a history of the plaintiff having beforehand, experienced 36 hours of cervical and thoracic pain with the onset of lumbar symptoms, associated with right leg pain in the L5 dermatomal distribution: Exhibit “B”, p 14.

31. On 28 March 2005, at the request of Dr Pollard, the plaintiff underwent radiological imaging of her thoracic and lumbar spines. This was reported as showing a 5 degree thoracic scoliosis and a slight reduction in the degree of lumbar lordotic curve: Exhibit “B”, p 15.

32. On 3 May 2005, Dr Bower-Williams, another general practitioner in the practice of Dr Pollard, referred the plaintiff for a physiotherapy consultation along with a request for an opinion and advice for further management concerning her neck and upper thoracic spine: Exhibit “B”, p 17.

33. On 4 May 2005, the plaintiff underwent x-rays of her cervical and thoracic spine as well as CT scans of those areas. Those studies were reported as showing a slight reversal of cervical curvature with only limited flexion and extension, and with minimal narrowing of the C6 disc, with posterior related osteophytes: Exhibit “B”, p 16.

34. On 7 June 2005, Dr Pollard referred the plaintiff to Dr Michael Creswick, a specialist in musculo-skeletal medicine, for management of her whiplash injury and in respect of the areas of soreness in her right leg: Exhibit “B”, p 3.

35. On 5 July 2005, at the request of Dr Pollard, the plaintiff was examined by Dr Creswick, who gave initial consideration to the plaintiff’s neck problems. He gave her initial treatment comprising an injection of lignocaine into the trigger points he identified, along with some advice on a regime of muscle stretching: Exhibit “B”, p 18.

36. On 28 July 2005, Dr Creswick reviewed the plaintiff and noted there had been some improvement in the position regarding her neck. He then commenced treatment by way of lignocaine injection to the trigger points in the gluteus muscles along with a recommended muscle stretching exercise programme: Exhibit “B”, p 19.

37. On 11 August 2005, the plaintiff was reviewed by Dr Creswick and on that occasion he noted persisting right lower limb pains. He planned for a further review of the plaintiff and in the meantime he prescribed Endep for the plaintiff to take at night: Exhibit “B”, p 20.

38. On 26 August 2005, at the request of Dr Creswick, the plaintiff underwent a CT scan of her lumbar spine which was reported by Dr Kitchener as showing a small L5/S1 disc bulge with mild L5/S1 facet joint arthritis: Exhibit “B”, p 27.

39. On 6 September 2005, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Mary Dawson, a consulting occupational general practitioner. Dr Dawson at that time considered that the plaintiff’s symptoms related to chronic de-conditioning, and to a secondary pain syndrome: Exhibit “1”, p 9. In my view, as Dr Dawson’s report gave no acknowledgment of the Expert Witness Code, to the extent that her reasoning is not compliant with that code, her opinions should be discounted when recognised as being in conflict with other appropriately reasoned opinions.

40. On 12 September 2005, Dr Pollard referred the plaintiff to a massage therapist for treatment to the neck, thoracic spine, lumbar spine and right leg: Exhibit “B”, p 4.

41. On 13 September 2005, the plaintiff was again reviewed by Dr Creswick, who on this occasion again injected the trigger points in the plaintiff’s gluteus muscles. He also mobilised the lumbar and thoracic areas and advised her as to a self-management programme, along with prescribing Tryptanol. At that time he discharged her from his care but suggested a further consultation if and when this was required: Exhibit “B”, p 21.

42. On 6 December 2005 at the request of Dr Pollard, the plaintiff underwent a lumbar MRI scan which was reported as showing disc degeneration at L5/S1 with disc bulging and an annular tear: Exhibit “B”, p 30.

43. On 4 January 2006, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Seamus Dalton, a sport and rehabilitation physician, who at that time considered it was most unlikely that the plaintiff suffered an acute lumbar disc protrusion or any significant injury as a result of the accident. He considered there was no evidence of radiculopathy and he discounted the MRI finding of an annular tear to the L5/S1 disc. Instead, he considered the plaintiff was suffering from mechanical lumbar pain with features of right lower lumbar facet joint involvement. He thought the plaintiff had suffered little more than a musculo-ligamentous strain of her cervical and thoracic regions: Exhibit “1”, pages 4 – 5.

44. In final submissions, the defendant acknowledged that Dr Dalton’s analysis to the effect that he sought to exclude the relationship of the plaintiff’s lower back complaint to the accident on account of delayed complaint, could not be made good on the evidence: T138.48.

22. On 16 February 2006, a C.O.R.E. Program physiotherapy assessment report was issued by Get Active Physiotherapy. That report indicated that the plaintiff had been involved in the program until 11 February 2006. It was noted that the program resulted in a “much improved” condition of the plaintiff’s back on 9 February 2006, leading to the plaintiff being able to do more in terms of her work, and in respect of her home activities. It was also noted that unfortunately, the plaintiff developed some pain in her buttock and leg upon walking on 11 February 2006: Exhibit “N”. The report was not specific as to which side of the plaintiff’s body was affected in that regard.

23. The diagrammatic section of the report prepared by the physiotherapist described the plaintiff’s pain as being severe, centred at the lumbar and left buttock regions, being non-specific in location, with referred pain down the posterior leg and into the right knee, along with intermittent tingling and/or tightness into the right lateral leg: Exhibit “N”, p 2. That evidence did not indicate the particular dermatomal distribution of those findings and diagrammatic representations. It is necessary to refer to the oral evidence of Dr Conrad for an understanding of the issue.

24. On 22 February 2006, Dr Pollard referred the plaintiff to an acupuncturist for treatment of persistent sciatica in her right leg: Exhibit “B”, p 5.

25. On 8 March 2006, Dr Pollard referred the plaintiff to Dr Peter Walters, a chiropractor, for treatment known as VAX-D in order for her to seek help with her lumbar pain and with regard to the referred pain in her right leg. In October 2008, it was recorded that such treatment “helped a bit”: Exhibit “B”, pages 6 – 7.

26. On 10 March 2006, at the request of the workers’ compensation insurer, the plaintiff was re-examined by Dr Dawson, whose report was structured in the form of answers to specific questions which were not tendered in evidence. She stated that she was unclear as to the cause of the plaintiff’s lower back pain. She agreed with Dr Dalton’s view that the subject accident was an unlikely cause of her ongoing symptoms. She discounted mechanical back ache as a cause of the plaintiff’s back symptoms, and suggested the possible explanation of sacro-iliac joint inflammation: Exhibit “1”, pages 10 – 13.

27. In my view, the limited reasons provided by Dr Dawson as to causation of the plaintiff’s ongoing symptoms suggests that little weight should be given to those opinions.

28. On 13 March 2006, Dr Pollard issued the plaintiff with a medical certificate indicating she was unfit for work between 8 March 2006 and 13 March 2006. That certificate noted the plaintiff had ongoing referred pain in the right leg, with lumbago, and also recurring pain in the left leg: Exhibit “J”.

29. On 21 March 2006, Dr Con Kafataris, a corporate medical consultant and injury management consultant, issued a report concerning the plaintiff. He expressed agreement with other unnamed independent medical examiners (possibly Dr Dawson and Dr Dalton) that the plaintiff’s back / buttock pain is unlikely to be related to the subject accident but is more likely to be related to sacroilitis: Exhibit “1”, pages 95 – 96.

30. That report by Dr Kafataris did not refer to or acknowledge the Expert Witness Code. It is not clear on its face as to whether Dr Kafataris actually saw the plaintiff for the purpose of preparing this report, or whether he had just conducted a review of other reports when forming his stated opinions, which the defendant ultimately acknowledged: T139.6. In those circumstances, and as his opinions are not reasoned to the extent required by UCPR Sch 7 cl 5(1)(c), I therefore consider them to be of no probative value.

31. On 24 March 2006, at the request of Dr Pollard, the plaintiff underwent a bone scan which failed to account for her lumbar symptoms: Exhibit “B”, p 31.

32. On 27 March 2006, Dr Pollard issued a medical certificate for the plaintiff indicating the plaintiff had “ongoing pain in the r leg, which is worsened by full 8 hr day, … r leg giving way intermittently with pain”: Exhibit “K”.

33. On 5 June 2006, the plaintiff attended Westmead Hospital. The triage notes relating to that admission, at 23:00 hours, record a history of the plaintiff suffering light-headedness and headaches since the afternoon, after driving home from work and getting out of her vehicle. The note also recorded a past medical history of the plaintiff having had a motor vehicle accident in March 2005, involving whiplash and “LBP”, which I interpret to refer to lumbar back pain from the subject accident. It was also interesting that this particular hospital note also recorded that the plaintiff “gets cleaner since MVA”: Exhibit “G”.

34. On 19 June 2006, Dr Pollard issued the plaintiff with a Workcover medical certificate which stated the plaintiff was fit for her pre-injury duties: Exhibit “1”, p 210. The defendant has placed great weight on the effect of that certificate, inappropriately in my view, without paying due regard to the effect of subsequent assessments.

35. On 15 March 2007, the plaintiff consulted Dr Pollard: Exhibit “B”, p 9. This tended to soften the effect of the defendant’s submission that the plaintiff did not seek treatment in 2006/2008: T136.16 – T137.20.

36. On 19 October 2008, having seen the plaintiff on 16 October 2008, Dr Pollard issued her with a Workcover medical certificate which stated she was unfit for work between 16 October 2008 to 23 October 2008: Exhibit “1”, p 211; Exhibit “B”, p 9; Exhibit “C”. The way I interpret that certificate, Dr Pollard stated that the plaintiff was suffering from right leg pain, and sacro-iliac joint pain. The context of the certificate was that the plaintiff had been “driving, and moving leg of pt, has aggravated the old injury to her lower back causing sciatica r side”.

37. On 3 November 2008, Dr Pollard referred the plaintiff to Dr Ian Farey, a spinal surgeon, in connection with a recurrence of the plaintiff’s back pain and sciatica. At that time, Dr Pollard was querying with Dr Farey whether the plaintiff needed an MRI scan: Exhibit “B”, p 8. Neither party tendered any explanatory reports from Dr Farey in relation to that referral. It seems that nothing turns on that fact: T147.24.

38. On 3 November 2008, at the request of Dr Pollard, the plaintiff underwent an MRI examination of her lumbar spine which was reported by Dr Kitchener as showing a disc bulge and an annular tear at L5/S1 extending to the right S1 nerve root: Exhibit “B”, p 28.

39. Significantly, at that time, in an addendum to his report of that date, Dr Kitchener compared the MRI scans taken of the plaintiff’s lumbar spine on 6 December 2005 and 3 November 2008, and he then went on to interpret these scans as indicating that the plaintiff’s L5/S1 disc bulge with an associated annular tear was present on both occasions in 2005 and in 2008, and the appearance was unchanged over that time: Exhibit “B”, p 29. That is a matter of some significance having regard to the defendant’s contention that the plaintiff’s lasting back problems arose from her post-accident work activities when she was assisting a patient.

40. On 17 November 2008, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Raymond Wallace, a consultant orthopaedic surgeon, who expressed the opinion that the history indicated to him that the plaintiff had experienced a minor musculo-ligamentous strain of her cervical spine and that the onset of her lumbar pain some weeks after the accident was entirely due to pre-existing degenerative lumbar spondylosis: Exhibit “1”, pages 171 – 184. That view stands to be evaluated against the other medical evidence to the contrary.

41. On 16 December 2008, the plaintiff was reviewed by Dr Creswick for further management at the request of Dr Pollard. At that time, Dr Creswick suggested gentle mobilisation of the thoraco-lumbar junction and the lower lumbar spine together with trigger point injections of local anaesthetic into the right gluteus minimus muscle: Exhibit “B”, p 22. Dr Creswick’s report dated 16 December 2008 stated that following VAX-D treatment, the plaintiff’s symptoms resolved and she returned to normal duties in mid-2006: Exhibit “B”, p 22.

42. Dr Creswick’s handwritten notes of that consultation comprised Exhibit “F”. There was disagreement as to the content of that note. The plaintiff contended the last sentence by Dr Creswick as cited in the preceding paragraph should be read as being subject to Dr Creswick’s note “never 100%”: Exhibit “F”. Pursuant to leave granted during final submissions on 9 July 2015, to supplement the evidence to incorporate an explanation from Dr Creswick as to the interpretation of his handwritten notes, it became apparent that Dr Creswick’s note did in fact state “never 100%”. Consistent with the plaintiff’s evidence, I construe that note to mean that the plaintiff’s symptoms were never 100 per cent. I therefore do not accept the implication of the comment in the report of Dr Creswick to the effect the plaintiff’s symptoms resolved, or resolved completely, as was submitted on behalf of the defendant.

43. On 5 January 2009, the plaintiff was reviewed by Dr Creswick for further treatment of her right lower limb pains and paraesthesia. On that occasion, he treated her with mobilisation and stretching exercises: Exhibit “B”, p 23.

44. On 19 January 2009, the plaintiff was reviewed by Dr Creswick for further treatment of her right lower limb pains and paraesthesia. He also noted that the plaintiff also experienced occasional pains in the left lower limb at that time. He treated her with further injection of local anaesthetic, together with stretching exercises. He suggested she look for alternative work as he considered her to be unfit to do the work of an enrolled nurse at that time: Exhibit “B”, p 24.

45. On 2 February 2009, Dr Creswick reviewed the plaintiff and postulated a small tear in the plaintiff’s L5-S1 disc as an explanation for her lumbar symptoms. He proposed treatment by facet joint injections, but he also noted the treatment was experimental. According to the chronology within the medical evidence, it appears the plaintiff did not return to see Dr Creswick: Exhibit “B”, pages 25 – 26.

46. On 27 July 2009, at the request of her solicitor, the plaintiff was examined by Dr Richard Deveridge, a consultant surgeon, who agreed with the radiology reports he had reviewed, and he stated that if the plaintiff’s history was accurate, then he had no reason to doubt that her ongoing neck, upper and lower back, and right leg problems were related to the subject accident on 4 March 2005: Exhibit “B”, pages 57 – 60.

47. On 30 November 2009, at the request of a referring radiologist, the plaintiff was seen by Dr Brian Owler, a consultant neurosurgeon. He identified the plaintiff’s main problems as being right lower limb pain with a mixture of L5/S1 symptoms on the right, and more recently evident on the left. He noted the history which to him indicated mechanical back pain in the context of an annular tear at L5/S1. At that time he identified the surgical options but suggested conservative management and a review in the event of deterioration in symptoms : Exhibit “B”, pages 32 – 33.

48. On 2 March 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Robert Lewin, a consultant psychiatrist. In his ensuing report, the first of 4 such reports from Dr Lewin, he initially stated that it was unclear to him as to whether the plaintiff had a diagnosable psychiatric condition. He went on to state, giving her “the benefit of the doubt” that the plaintiff had “tail end features” of an Adjustment Disorder” and that any such condition, in her case, was mild, and that it should be managed in a multi-disciplinary pain management setting: Exhibit “1”, pages 97 – 109.

49. On 2 June 2010, at the request of her solicitor, the plaintiff was examined by Dr Thomas Clark, a consultant psychiatrist. Dr Clark considered that the plaintiff was suffering from a post-traumatic stress disorder associated with a sleep disorder with intrusive reminders, for which the prognosis was in his view guarded: Exhibit “B”, pages 80 – 91.

50. On 25 June 2010, at the request of her solicitor, the plaintiff was examined by Dr Yuk Kai Lee, a consultant orthopaedic surgeon. He considered that the plaintiff’s persistent back pain and right sided sciatica were as a result of her back injury, for which there was a guarded prognosis: Exhibit “B”, pages 66 – 69.

51. On 23 July 2010, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon: Exhibit “B”, pages 114 – 117. Dr Conrad saw the plaintiff on a total of four occasions. He has issued a total of 5 reports in respect of his assessment of the plaintiff. The opinions he expressed in those reports must be read in conjunction with his oral evidence, in which he corrected some errors of nomenclature, and expression, and where he clarified the meaning of his reports on the matter of the diagnosis of disc prolapse: T100.21 – T100.25; T108.13 – T108.20.

52. In Dr Conrad’s first report he considered the plaintiff’s principal injury was to her lumbar spine with evidence of damage to the L5/S1 disc: Exhibit “B”, p 116.

53. On 4 August 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Associate Professor Richard Jones, a consultant rehabilitation specialist. He considered the plaintiff to have had a degenerative disease of her spinal column that was aggravated by the accident. He said he expected that “most of the symptoms” from the effects of the soft tissue injuries she sustained in the accident to have resolved within a period of about 3 months from the accident. He considered that the widespread nature of her lower limb symptoms to be unusual, and not suggestive of a specific radiculopathy: Exhibit “1”, pages 50 – 59.

54. On 4 August 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr FJ Harvey, a consultant orthopaedic surgeon. In this the first of his 6 reports relating to the plaintiff, Dr Harvey expressed the opinion that the plaintiff had sustained soft tissue injuries to her neck and to her back. In his view, there was no objective evidence of the plaintiff having suffered any spinal injury which would cause her to suffer future problems: Exhibit “1”, pages 14 – 24.

55. It is difficult to interpret Dr Harvey’s comment as cited in the preceding paragraph because he also recorded that the plaintiff’s movement of her lumbar spine appeared to be limited in the standing position, and on forward flexion and the lordosis of the lumbar spine was flattened. The significance of those findings was left unexplained by Dr Harvey: Exhibit “1”, p 18.

56. Furthermore, Dr Harvey made a finding on examination that there was no sensory disturbance in the lower back: Exhibit “1”, p 18. In making that comment Dr Harvey appears not to have attempted reconciliation between that statement and the history he obtained from the plaintiff of “numbness and tingling in the soles of both feet”: Exhibit “1”, p 17.

57. To examine that issue it becomes necessary to refer to the oral evidence of Dr Conrad. In short, Dr Conrad concluded that the radiological investigations (T120.20) and Dr Pollard’s clinical notes taken on 8 March 2005 showing the plaintiff had right leg pain in L5 dermatomal distribution (Exhibit B, p 14) were very significant indications that the plaintiff had suffered traumatic nerve root damage in the L5 dermatome in the subject accident: T121.34 – T122.9. That evidence was not contradicted.

58. On 24 August 2010, at the request of the solicitor for the defendant, the plaintiff was assessed by Professor Robert Pryor, a vocational psychologist. In his ensuing report Professor Pryor assessed the plaintiff from a psychological perspective only, and that assessment based his recommendations for the plaintiff to be appropriately employed in positions such as Residential Care Officer, Refuge Worker, Family Support Worker, Hostel parent, Tourist Information Officer and Inquiry Clerk: Exhibit “1”, Tab 7, pages 148 – 153. He specifically excluded consideration of the plaintiff’s physical limitations for those identified positions, as that was a matter that was outside his area of expertise: Exhibit “1”, Tab 7, p 148.

59. On 21 October 2010, at the request of the solicitor for the defendant, Dr Harvey provided a commentary on the 30 November 2009 report of Dr Owler, in which he stated that Dr Owler’s report did not describe any neurological abnormalities in the lower limb, and he therefore disagreed with the suggestion the plaintiff needed surgery. He also stated that he saw no need to alter his previous opinion. The questions that Dr Harvey had been asked to address in this report were not in evidence: Exhibit “1”, pages 25 – 26.

60. On 28 October 2010, Associate Professor Jones provided a supplementary report to the solicitor for the defendant after reviewing what he described as “the copious documentation provided under cover of letter of inquiry 14 October 2010.” That letter was not tendered in evidence and it was not called for, therefore its content could not be identified with reasonable certainty. Based upon that material, Associate Professor Jones considered that the suggested need for “hands on therapies” would not be associated with the accident on 4 March 2005: Exhibit “1”, pages 60 – 64.

61. On 5 January 2011, at the request of the Motor Accidents Authority, the plaintiff was assessed by Dr Anthony Samuels, a consultant psychiatrist, who considered that the plaintiff’s claimed psychological condition of post-traumatic stress disorder was not in evidence on his examination and he therefore concluded that she did not have a permanent psychiatric injury: Exhibit “1”, Tab 10, p 208.

62. I consider that Dr Samuels’ report as cited above should be viewed with great caution as it was not an expert opinion in the sense contemplated by UCPR r 31.28 or UCPR Sch 7 cl 5(1)(c): Pham v Shui [2006] NSWCA 373. Furthermore, in forming his opinions, he took into account some submissions that were made by the insurer, the content of which did not feature in the evidence at the hearing. Therefore, procedural fairness requires great caution be exercised in considering the evidentiary weight of the report of Dr Samuels.

63. On 13 January 2011, at the request of the Motor Accidents Authority, the plaintiff was assessed by Dr Brian Noll, a consultant orthopaedic specialist, who considered that the soft tissue strain type injuries to the plaintiff’s neck, thoracic and lumbar spine, as well as an injury to her right lower extremity, were related to the subject accident: Exhibit “1”, pages 185 – 198.

64. Dr Noll went on to state:

“Clinical assessment today revealed a relatively restricted range of movement of the lumbosacral spine with some asymmetry and muscle guarding. Although not typical, it was concluded that the clinical features also fulfil the criteria for right S1 radiculopathy as defined by the MAA Guidelines (Item 4.28 page 27). In this regard it was noted that the diminished sensation over the posterior aspect of the right calf was predominantly in the S1 distribution and there was a positive right straight leg raising test (a positive sciatic nerve root tension sign) associated with pain complained of in the region of the right Achilles tendon, which is in the appropriate dermatomal distribution.”

88. Whilst at page 195 of Tab 9 of Exhibit “1”, Dr Noll stated that there was no evidence to indicate that the imaging study findings in the lumbar spine relate specifically to injury sustained in the accident. I consider that view should be evaluated with caution, particularly in view of Dr Pollard’s dermatomal findings which she recorded on 8 March 2005: Exhibit “B”, p 14.

89. On 12 March 2011, at the request of Dr Pollard, the plaintiff was examined by Associate Professor Steve Vucic, a consultant neurologist and neurophysiologist. He stated that he suspected the plaintiff’s low back and leg symptoms were musculo-skeletal in origin and he suggested a course of hydrotherapy, physiotherapy and medication. He also referred the plaintiff to Concord Hospital for a rehabilitation assessment with a view to those therapies being provided: Exhibit “B”, p 39.

88. On 19 May 2011, at the request of her solicitor, the plaintiff was re-examined by Dr Deveridge, who considered that the plaintiff’s diagnosis remained consistent with a chronic thoraco-lumbar sprain injury with an annular disc tear at the level L5/S1. He also considered that the cervical, mid and low back and referred leg pain were, on the balance of probabilities, due to the subject accident on 4 March 2005: Exhibit “B”, pages 63 – 65.

89. On 10 August 2011, at the request of her solicitor, the plaintiff was examined by Dr Conrad for a second time. In his second report, Dr Conrad essentially reiterated his earlier opinion, and he identified a non-verifiable radiculopathy affecting both legs, for which conservative treatment was required: Exhibit “B”, pages 118 – 120.

90. On 12 November 2011, at the request of Dr Pollard, the plaintiff was re-examined by Associate Professor Vucic. In view of the plaintiff reporting little improvement in her symptoms, he suggested a referral to Dr Owler, the neurosurgeon whom the plaintiff had previously seen two years earlier, on 30 November 2009, to determine whether removal of the L5/S1 disc was indicated: Exhibit “B”, p 40.

91. On 11 January 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Associate Professor Jones for a second time. In his report of that consultation, Associate Professor Jones expressed less adamant views about the relationship between the plaintiff’s symptoms and the subject accident than was the case with his previous reports. In his report under present consideration, he seems to have focussed on whether the plaintiff had problems related to the S1 sacral nerve root rather than the lumbar problems previously considered. On this occasion, he expressed interest in learning the outcome of the pending neurosurgical review planned to take place in February 2012. For the purposes of his commentary, Professor Jones was provided with correspondence and documentation which have not been identified or tendered in evidence: Exhibit “1”, pages 66 – 71. As that material has not been identified it cannot be analysed and this must therefore cast some doubt on the basis of the opinion of Associate Professor Jones, and about the reliability of his evidence in that form.

92. On 24 January 2012, at the request of the solicitor the defendant, the plaintiff was re-examined by Dr Harvey, who at that time took a history that the plaintiff’s situation had remained unchanged, and that her symptoms had worsened. He considered that the plaintiff’s symptoms could be explained on the basis of a physical injury with an element of non-organic involvement, and re-iterated his earlier expressed view that the plaintiff’s ongoing complaints could be “recently” (sic for reasonably) be attributed to the subject accident, and that the symptoms did not have a significant physical basis: Exhibit “1”, pages 27 – 35.

93. On 3 February 2012, at the request of Dr Pollard, the plaintiff was reviewed by Dr Owler in the context of ongoing symptoms in relation to her lower back radiating into her legs. He noted that nerve conduction studies had shown abnormalities in the L1 region. He also noted that as conservative treatment had failed, it was reasonable to contemplate surgical treatment in the form of an L5/S1 posterior lumbar inter-body fusion with rhizolysis: Exhibit “B”, pages 34 – 35.

94. On 13 April 2012, in response to an untendered letter from the solicitor for the defendant, Associate Professor Jones reviewed his earlier file and reports and provided an additional commentary in which he re-iterated his earlier opinion where he had stated there was “no nexus … now between [the plaintiff’s] current symptoms and any possible deterioration and the accident of 4.3.2005” and he saw no reason to alter those views. It is not apparent as to whether he had been provided with the report of Dr Owler before he issued this report: Exhibit “1”, pages 71 – 75.

95. On 23 May 2012, at the request of Professor Martin McGee-Collett, a neurosurgeon, the plaintiff was referred for a further lumbar MRI study, which was reported upon by Dr Kitchener as showing an annular tear in the L5/S1 disc but without progression since 2008: Exhibit “B”, p 41. Other findings included the description of broad-based disc bulges at the levels L3/4 and L4/5 without nerve root compression. There were no reports tendered from Professor McGee-Collett. It seems that nothing turns on the absence of such reports: T147.30.

96. Unfortunately, the second page of the above report from Dr Kitchener was not included in the tendered materials.

97. On 24 January 2012, at the request of the solicitor for the defendant, the plaintiff was re-assessed by Dr Lewin. In his resulting second report, Dr Lewin stated that in his view, the earlier psychiatric condition he had postulated, had remitted. He went on to comment on an assessment report of Dr Samuels which had been obtained by the MAA: Exhibit “1”, pages 110 – 117.

98. On 30 January 2013, at the request of the solicitor for the defendant, the plaintiff was re-examined by Associate Professor Jones. In his subsequent report following that consultation, he reiterated his previously expressed views to the effect that the aggravation effects of the subject accident would have been expected to have resolved within a period of about 3 months. He also stated that he believed her symptoms were now related to a multiplicity of conditions, and he could determine no objective nexus between those and the subject accident. He reviewed an unidentified neurosurgeon’s report concerning potential operative treatment, and only focussed his commentary on the S1 nerve root. He reiterated his earlier statement that he had no reason to alter his previously expressed views: Exhibit “1”, pages 76 – 81. It appears that in reaching the conclusion that there was no objective nexus between the plaintiff’s complaints and the subject accident, Associate Professor Jones took no account of the plaintiff’s subjective complaints of symptoms: Exhibit “1”, p 80.

99. On 2 April 2013, at the request of the solicitor for the defendant, the plaintiff was again re-examined by Dr Harvey, at which time he stated that his earlier expressed opinions “remain completely unaltered” and he went on to state that he considered the plaintiff’s complaints at that time could not be explained on the basis of physical injury: Exhibit “1”, pages 36 – 41, at p 40, para 3.

100. On 2 April 2013, at the request of the solicitor for the defendant, the plaintiff was again examined by Dr Lewin. In his ensuing report, Dr Lewin stated that he could not find any diagnosed psychiatric condition: Exhibit “1”, pages 118 – 124.

101. On 24 June 2013, at the request of her solicitor, the plaintiff was examined by Dr Conrad for a third time. In his third report relating to the plaintiff, Dr Conrad re-iterated his earlier opinion, and he stated that the previously identified non-radiculopathy in both legs was also accompanied by a specific radiculopathy in the right leg: Exhibit “B”, pages 121 – 123.

102. On 5 July 2013, the plaintiff was re-examined by Dr Lee: Exhibit “B”, p 70. Neither party tendered any report that followed that consultation.

103. On 9 August 2013, at the request of Dr Pollard, the plaintiff underwent an MRI study of the cervical spine which was reported as showing multi-level spondylitic changes, primarily demonstrated by mild posterior disc osteophyte complex extending from C3/4 to C7/T1, most marked at C6/7 without stenosis or foraminal narrowing, or nerve root impingement : Exhibit “B”, p 42.

104. On 28 August 2013, at the request of her solicitor, the plaintiff was re-examined by Dr Clark, whose opinions on the plaintiff’s psychological issues remained essentially unchanged from his first report: Exhibit “B”, pages 92 – 102.

105. On 5 September 2013, following a request from the plaintiff’s solicitor. Dr Conrad issued his fourth and supplementary report in which he stated, as explained in his oral evidence (at T99.41 – T100.25) that the plaintiff has a disc prolapse in her cervical spine due to the subject accident: Exhibit “B”, pages 124 – 125.

106. On 17 September 2013, at the request of Dr Owler, the plaintiff saw Dr Brian Hsu, a spinal surgeon, for a second opinion on her discogenic back pain. He agreed that surgery was a reasonable option, but was concerned that the plaintiff understand the outcome would not make her pain free: Exhibit “B”, pages 43 – 47, at p 45.

107. On 2 October 2013, at the request of Dr Pollard, the plaintiff underwent an MRI study of her right knee against the background of a history of that knee giving way and of her experience of shooting pains. The MRI was reported as showing the presence of moderate / high grade chondromalacia patellae and some tendinosis, the significance of which was left unexplained in the medical evidence: Exhibit “B”, page 49.

108. On 9 October 2013, at the request of Dr Pollard, the plaintiff underwent an ultrasound of her left shoulder which was reported as showing subacromial / subdeltoid bursitis with impingement and mild supraspinatus tendinosis without a tear. A steroid injection was recommended: Exhibit “B”, page 50.

109. On 22 October 2013, at the referral of Dr Pollard, the plaintiff received a subacromial bursal injection under sonographic guidance: Exhibit “B”, page 51.

110. On 14 November 2013, at the referral of Dr Pollard, the plaintiff consulted with Dr Bain Shenstone, a consultant rheumatologist, for assessment of her widespread musculoskeletal pain she experienced since the subject motor vehicle accident. Dr Shenstone thought the plaintiff’s complaints were due to the plaintiff having developed a chronic regional pain syndrome involving her neck, her thoracic spine and her lumbar region. This was thought to have been complicated because of the plaintiff’s inability to tolerate non-steroidal anti-inflammatory drugs due to her pre-existing Crohn’s disease. He attributed the plaintiff’s musculoskeletal problems to the subject accident and to the related biomechanical sequelae of that accident: Exhibit “B”, pages 54 – 56.

111. On 13 December 2013, Dr Hsu, a spinal surgeon, provided the plaintiff with an estimate of the cost of spinal decompression and interbody fusion surgery at $10,344: Exhibit “B”, p 48.

112. On 14 January 2014, at the request of Dr Pollard, the plaintiff was again reviewed by Professor Owler, who at that time considered that spinal surgery should be avoided at that time in favour of the plaintiff seeking treatment from a pain management specialist. Accordingly, he gave her a referral to Dr Michael Carroll. There were no reports tendered from Dr Carroll: Exhibit “B”, pages 36 – 38.

113. On 13 March, 1 May, 13 May and 27 May 2014, the plaintiff attended the Sydney Pain Management Centre for treatment: Exhibit “O”. The stated purpose of those attendances was for the assessment and treatment of her persistent low back pain, bilateral leg pain, chronic mechanical back pain secondary to disc disruption, sleep interference, and to assist with an understanding of those problems in order to develop coping strategies.

114. On 11 June 2014, at the request of the solicitor for the defendant, the plaintiff was again re-examined by Dr Harvey, who essentially re-iterated the earlier opinions he had expressed in his previous reports: Exhibit “1”, pages 42 – 48.

115. On 11 June 2014, at the request of the solicitor for the defendant, the plaintiff was again examined by Associate Professor Jones. In the resultant report and in the series of supplements to that report, Associate Professor Jones essentially reiterated his earlier expressed views: Exhibit “1”, pages 82 – 94 (including duplicated copying).

116. On 2 and 3 July 2014, at the request of Dr Pollard, the plaintiff underwent both left and right sided S1 peri-neural nerve root injections with local anaesthetic: Exhibit “B”, pages 52 – 53.

117. At the request of her solicitor, the plaintiff was examined for a third time by Dr Clark, who considered that the plaintiff was suffering from a longstanding depressive disorder which had characteristics, both of a post-traumatic state with vivid recall of the trauma. He identified the presence of a chronic depressive disorder and a dysthymic disorder: Exhibit “B”, pages 103 – 113.

118. On 12 July and 12 August 2014, the plaintiff again attended the Sydney Pain Management Centre for treatment: Exhibit “O”. On these occasions it was noted that the plaintiff continued to have chronic back pain, bilateral leg pain, sleep interference and an adjustment disorder. Treatment recommendations comprising physiotherapy, exercise and medications, continued.

119. On 19 December 2014, at the request of the solicitor for the defendant, the plaintiff was again examined by Dr Lewin, who again reported that the plaintiff did not have a diagnosable psychiatric disorder, but that her situation was complicated by her pain, her frustration and her anxieties, including concerning the effects of the legal process upon her: Exhibit “1”, pages 125 – 132.

120. On 22 January 2015, at the request of her solicitor, the plaintiff was re-examined by Dr Lee, whose opinion essentially remained the same as in his first report: Exhibit “B”, pages 70 – 74.

121. On 24 February 2015, at the request of her solicitor, the plaintiff was examined by Dr Conrad for a fourth time. In his ensuing fifth report, Dr Conrad stated his view that the plaintiff had an osteophyte complex from C3/4 to C7/T1, which might represent a disc prolapse, especially at the level C6/7. He also stated that in the lumbar spine the plaintiff has a verifiable radiculopathy, for which conservative treatment was contemplated: Exhibit “B”, pages 126 – 129. Those views were further explained in Dr Conrad’s oral evidence.

122. On 27 April 2015, at the request of her solicitor, the plaintiff was re-examined by Dr Lee, whose opinion on this occasion also essentially remained the same as was stated in his first report: Exhibit “B”, pages 75 – 79.

123. Having identified the array of medical attendances and opinions, it now becomes necessary to identify, consider and make findings concerning those opinions where they are in conflict.

Resolution of conflicting medical opinions

126. The areas of conflict requiring resolution within the medical evidence fall into two main categories, namely disputes arising within the physical medicine disciplines, and a dispute amongst the psychiatric opinions.

127. The convenient starting point for an analysis aimed at resolving such disputes is to focus on the contemporaneous medical notes, and to recognise the significance of the unchallenged and not otherwise improbable note made by Dr Pollard on 8 March 2008 to the effect that the plaintiff was complaining, post-accident, of cervical, thoracic and lumbar problems, and right leg problems, the latter being in the L5 dermatomal distribution: Exhibit “B”, p 14. I consider that contemporaneous note to have high evidentiary weight and probative value.

128. Also of significance to the analysis is my finding that the plaintiff has consistently complained of problems in those areas since the time of the accident. The defendant’s submission to the effect that the plaintiff had little if any medical assessment or treatment in the period 2006 to 2008 is in my view unpersuasive on the issue of whether or not she continued to suffer accident-related symptoms in that period, given my assessment that the plaintiff has displayed a general stoic disposition. As is apparent from the plaintiff’s evidence, that attitude has also extended to the occasions of her medical consultations where she did not always take the opportunity to complain about all of her symptoms on account of the limited times available in such consultations, and because of her belief that she just had to live with her problems: T58.8, T56.25 – T56.29, T57.24.

129. The conflict in the opinions of the physical medicine specialists is essentially whether the opinions of Dr Pollard, Professor Owler, Dr Hsu, Dr Creswick and Dr Conrad should be accepted over the opinions of Dr Wallace, Dr Harvey, Dr Noll and Professor Jones to the contrary.

130. In that analysis, I have not overlooked the views of Dr Dalton, Dr Dawson and Dr Kafataris. For the reasons I have already outlined in paragraphs [39], [43] – [44], [49] – [50] and [52] – [53] above, I consider that the opinions of Dr Dalton, Dr Dawson and Dr Kafataris should be given little weight in the analysis of the evidence concerning the plaintiff’s physical problems.

131. The unchallenged views of Professor Owler and Dr Hsu were to the effect that the plaintiff’s symptoms were due to an annular tear of the L5/S1 disc which accounted for her mixture of L5 and S1 symptoms: Exhibit “B”, p 33. Professor Owler considered the plaintiff had significant paraesthesia, weakness and numbness in the legs, calf muscles and the feet: Exhibit “B”, p 34. Dr Hsu agreed with Professor Owler’s assessment: Exhibit “B”, p 34. Neither of those opinions from treating doctors were challenged. As the plaintiff’s complaints that underpinned those opinions were not contradicted or shown to be incorrect, I accept those opinions.

132. That evidence, and the evidence from within the materials provided by Dr Pollard, must be weighed against the contrary opinions of the medico-legal experts retained by the parties.

133. Dr Conrad was the only medical expert to give oral evidence. In that evidence, he explained that the plaintiff’s variable complaints of lower limb symptoms were a referred phenomenon relating to the nature of her L5/S1 disc injury: T98.10 – T98.43. That evidence was not contradicted, nor did it seem to be an inherently improbable explanation for the plaintiff’s variable lower limb symptoms.

134. That evidence must be weighed against the opinions to the contrary. This raises a difficulty for analysis where the authors of the opinions relied upon by the defendant were not called, and where their reports were the subject of criticism in the plaintiff’s submissions, but without cross-examination: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]; Cupac v Cannone [2015] NSWCA 114, at [17] – [18]. Notwithstanding this, the analysis must proceed as best can be done in the circumstances.

135. Dr Harvey provided the defendant with a series of 6 reports, commencing in 2010 and concluding in 2014: Exhibit “1”, pages 14 – 48. Essentially, he took a history of the plaintiff’s main problem as being in the back and in her right leg, together with neck pain radiating into both shoulders. He also recorded that she sometimes experienced pain from her back into both lower limbs. He recorded that the plaintiff had told him her pain is getting worse rather than better: Exhibit “1”, p 17. Dr Harvey initially considered the plaintiff may have suffered soft tissue neck and back injuries: Exhibit “1”, p 20.

136. On the basis of an incorrect assumption of a history of “some delay” in the plaintiff developing back and leg pain, Dr Harvey concluded, the plaintiff’s injuries could not have been of great severity, and in any event he expected that she would have made a “more rapid recovery”: Exhibit “1”, p 20. On that basis, he concluded there was no objective evidence of injury that would cause continuing problems: Exhibit “1”, p 21.

137. In my assessment, Dr Harvey’s initial opinion should not be accepted because his assumption of delayed onset of symptoms was factually incorrect.

138. I therefore do not accept Dr Harvey’s opinion to the effect that the plaintiff’s complaints cannot be explained on the basis of physical injury: Exhibit “1”, pages 22 – 23. I accept Dr Conrad’s evidence to the contrary for the reasons he has given.

139. In a subsequent report in 2012, Dr Harvey noted the plaintiff’s symptoms had worsened: Exhibit “1”, p 28; p 31. In his 2013 report, Dr Harvey noted the plaintiff’s main complaint as being in her low back: Exhibit “1”, p 37. In 2014, Dr Harvey made the same observation, but added a reference to symptoms of radiation into the toes on both sides: Exhibit “1”, p 44. He said that his opinion, first given on 8 August 2010, remained unchanged over time: Exhibit “1”, p 40; p 47.

126. In the circumstances, where Dr Harvey has assumed an incorrect history as to the timing of onset of the plaintiff’s back pain, and for the reasons outlined in paragraph [137] above, I prefer and accept Dr Conrad’s evidence to that of Dr Harvey.

127. Associate Professor Jones’ summary of the plaintiff’s history of injury was taken some 5 years after the accident, and was rather sketchy in its content because it did not canvas a detailed history of back injury. Instead, Associate Professor Jones seemed to have concentrated on the plaintiff’s neck injury: Exhibit “1”, p 53. Absent any oral evidence from Associate Professor Jones explaining that process, I consider the more contemporaneous account in Dr Pollard’s notes represents a more reliable historical source.

128. Associate Professor Jones’ opinion was based on his expectation that most of the plaintiff’s symptoms would have resolved within 3 months: Exhibit “1”, p 55. His view that the changes shown in the plaintiff’s spine at the level L5/S1 were degenerative, and “probably pre-existing”, were without supporting reasons and therefore carry little weight: UCPR Sch 7, cl 5(1)(c).

129. Associate Professor Jones’ subsequent reports essentially reiterated his earlier opinions: Exhibit “1”, pages 62, 69, 70, 73, 74, 79 – 81, 85, 86, 88, 89, 91 and 92.

130. In my assessment, Associate Professor Jones’ opinions were unpersuasive as they lacked adequate supportive reasons, and did not adequately take into account the plaintiff’s history, including the contemporaneous complaints of back injury with the dermatomal symptoms recorded by Dr Pollard. Instead, I prefer the opinions of Dr Pollard, Dr Creswick, Associate Professor Owler, Dr Hsu and Dr Conrad, especially on account of Dr Conrad’s explanations already identified.

131. Furthermore, Associate Professor Jones’ opinions appear to have been influenced by materials that have not featured in the evidence as explained at paragraphs [83], [93] and [96] above. Additionally, and without adequate reasons, Associate Professor Jones seems to have placed little significance upon the plaintiff’s complaints of symptoms, which I have accepted.

132. When Dr Wallace saw the plaintiff on 17 November 2008, some 4 years after the injury, he focussed upon a narrowly defined history in which he had assumed that the plaintiff’s back pain had only emerged in the weeks following the accident: Exhibit “1”, p 172. That assumption was contrary to the contemporaneous factual note made by Dr Pollard, and the plaintiff’s evidence.

133. In my view, Dr Wallace’s opinion, that the plaintiff suffered only a minor musculo-ligamentous injury to her cervical spine (Exhibit “1”, p 176) and that the lumbar spine symptoms were “entirely attributable to a pre-existing degenerative spondylosis and not related to her work journey motor vehicle accident” (Exhibit “1”, p 177), was unexplained, flawed and should be discounted.

134. I do not accept Dr Wallace’s opinion that the plaintiff “sustained no lumbar spinal injuries as the result of work journey motor vehicle accident in 2005”: Exhibit “1”, p 177.

135. Dr Noll has accepted that the plaintiff suffered a soft tissue type straining injury to her neck, thoracic spine, lumbar spine and right lower extremity in the subject accident: Exhibit “1”, p 193. He found these matters were due to the subject accident: Exhibit “1”, p 195. His report was directed at making a percentage impairment rating assessment as required by the MAC Act Scheme. In that regard, I accept his findings as to causation, however, I do not accept the opinion he expressed (at Exhibit “1”, p 195) to the effect that there was no evidence to indicate the imaging studies in relation to the plaintiff’s lumbar spine relate specifically to the injuries sustained in the subject accident. I have reached that conclusion because Dr Noll’s opinion is not supported by the type of reasons demanded by UCPR Sch 7, cl 5(1)(c).

136. None of the defendant’s experts have addressed the unchallenged opinions of Dr Shenstone as summarised at paragraph [112] above, which also referred to the plaintiff having a chronic pain syndrome of her neck and back complicated by her inability to take anti-inflammatory drugs: Exhibit “B”, pages 54 – 56. I accept that opinion.

137. The defendant raised questions with Dr Conrad as to whether the plaintiff’s spinal problems related to underlying degenerative disease, and whether the incident on 16 October 2008 in which the plaintiff lifted a patient’s leg resulting in her experience of back pain “could” have been the cause of her ongoing complaints: T117.50 – T118.41. Dr Conrad’s concessions in that regard were based on an acknowledgment of the existence of possible rather than a probable alternative diagnosis. Those concessions do not rise above conjecture and they do not contradict his more firmly expressed and reasoned opinion to the effect that the plaintiff’s back problems relate to the trauma of the subject accident: T121.30 – T122.9.

138. Dr Conrad’s oral evidence was to the effect that the plaintiff had a potentially vulnerable spine: T112.36; T116.5 – T116.10. This meant that common every day events predisposed her to further symptoms or injury: T113.18. However, his ultimate view was that the contemporaneous notes of Dr Pollard concerning L5 dermatomal pain shortly after the subject accident indicated that the picture was consistent with an L5/S1 injury with some nerve root damage or pressure sustained at the time of the subject accident: T122.1 – T122.9. The defendant has failed to provide adequately reasoned evidence contradictory to that of Dr Conrad. For the reasons already outlined, I prefer and accept Dr Conrad’s evidence on the matters in contention.

139. The defendant argued that the plaintiff’s ongoing back problems were due to a pre-existing condition of the back, and were not due the subject accident. For that submission to prevail, the defendant carries the evidentiary onus for proof of that proposition: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The obstacle in the path of acceptance of that submission is the force of the evidence of Dr Conrad and the other medical practitioners whose opinions I have accepted as satisfactorily showing that the plaintiff’s ongoing back problems are due to the effects of the subject accident. I find that the plaintiff has satisfied the onus which she carried in demonstrating those symptoms are due to the effects of the subject accident: Glen v Sullivan [2105] NSWCA 191; s 5D of the CL Act.

140. I now turn to an evaluation of the psychiatric opinions.

141. The conflict within the psychiatric opinions is whether the plaintiff has an injury-related psychological impairment or not. That conflict seems to be based upon whether the psychological symptoms of which the plaintiff complained fitted into a recognised impairment category for diagnostic purposes.

142. The first psychiatrist to examine the plaintiff was Dr Lewin. He first assessed her on 2 March 2010. At that time he was unclear as to whether the plaintiff had a psychiatric condition, but he was prepared to concede the plaintiff exhibited “tail end features” of a mild adjustment disorder that required multidisciplinary treatment in a pain management setting: Exhibit “1”, pages 97 – 109. That conclusion suggests Dr Lewin was at that time accepting that the plaintiff had psychologically disturbing symptoms due to the effects of the subject accident.

143. Whilst Dr Lewin’s second report, which was dated 24 January 2012, expressed the opinion that the condition he earlier identified seemed to have remitted, I consider that view to have been influenced by the MAA report of Dr Samuels, to which little weight should be attached, due to the caution that must be attached to that report: Pham v Shui [2006] NSWCA 373.

144. Whilst Dr Lewin stated in a subsequent report dated 2 April 2013 that he could not find the plaintiff to be suffering from any diagnosed psychiatric condition, he did not suggest that the plaintiff’s complaints which he recorded on that occasion (at Exhibit “1”, pages 120 – 122) namely her frustration regarding her ongoing experience of pain, with disrupted sleep, and trying to keep a positive outlook, and her distressed reaction to persisting pain, were anything other than genuine. Nor did he suggest that those problems were unrelated to the subject accident.

145. In weighing Dr Lewin’s opinions as outlined above, and as stated in his report dated 19 December 2014, to the effect the plaintiff did not have a diagnosable psychiatric disorder, the contrary views of Dr Clark need to be considered.

146. On 2 June 2010 Dr Clark thought the plaintiff had a post-traumatic stress disorder with an occasional sleep disorder and intrusive reminders. On that occasion he recorded the plaintiff’s symptoms as follows:

“…

Generally disturbed sleep, her pain keeps her awake

A reduced ability to experience pleasure (i.e. anhedonia)

Tearfulness

Upsetting recollections/dreams about the traumatic event & hypervigilance

Depressed but still ‘reactive’ mood

Low energy and ‘fatigue’

Inattention

Circumscribed but nevertheless disabling fears & phobic avoidance

She is still depressed, with loss of activities and movement, and is unable to enjoy her life.”

[Exhibit “B”, p 81]

161. Dr Clark went on to explain that PTSD was part of an anxiety spectrum disorder: Exhibit “B”, p 83. That opinion was unchallenged. Dr Clark’s views were supported by the schedules he attached to his report. In his report of 12 February 2015 he set out and annotated the diagnostic criteria to support his views: Exhibit “B”, pages 103 – 113. I find the detailed reasons within Dr Clark’s views to be convincing and therefore prefer them to those of Dr Lewin, which seemed to be based more on what the plaintiff had volunteered rather than what had been elicited from her. I consider that difference in approach to be significant, as the plaintiff was a stoic individual who tended to understate her symptoms. Absent any oral evidence from Dr Lewin to explain the circumstances of his history taking, I prefer Dr Clark’s explanations.

162. I consider that Dr Lewin’s reports were more focussed upon matters of objective assessment of psychological issues where such matters seem to be necessarily subjective. I therefore prefer Dr Clark’s less semantic conclusions, having accepted the reasonableness and credibility of the plaintiff’s underlying evidence of her complaints as to the nature of her psychological problems, and the timing of their onset.

163. Having reached those conclusions on the medical evidence, I therefore conclude that the plaintiff’s injuries and disabilities, as claimed were caused by the subject accident.

Disabilities

164. Given my acceptance of the plaintiff’s credit, and my acceptance of her evidence generally, I propose to treat the above history summarised from the medical reports as evidence of the plaintiff’s early post-injury difficulties, treatment and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. Similarly, and consistent with that approach, I have drawn upon the content of the tendered medical reports to identify relevant aspects of the plaintiff’s complaints, and her reported disabilities.

165. The plaintiff continues to suffer from pain, discomfort and restriction of movement in the cervical, thoracic and lumbo-sacral regions of her spine. The lumbar problems are the most persistent and debilitating for her, and involve radiculopathy to her lower limbs (T20.40) of varying intensity and annoyance. These latter problems relate to an L5/S1 disc tear, for which surgery is being considered as a treatment option, although not immediately.

166. The plaintiff experiences difficulty with everyday tasks involving lifting, carrying, bending, prolonged sitting and standing. Driving caused her to experience aggravation of symptoms: T15.41. Standing exacerbates the pain in her back: T28.20. She’s conscious of avoiding aggravating activities: T52.35. She also experiences stiffness and constant pain in her low back which varies according to what she does in the way of activity: T20.20 – T20.34. Her right knee problems are worse at night: T21.5. Her manual dexterity and flexibility is therefore significantly impaired on account of those symptoms.

167. She also continues to suffer from the effects of the musculo-ligamentous injuries she sustained to her neck and thoracic spine, although these are of a lesser significance to her than the problems she experiences with her lumbar spine.

168. The plaintiff takes medication for pain and for the psychological impact her injuries have had upon her. She experiences emotional ups and downs: T23.11. She also has a related sleep disturbance. She has post-traumatic stress disorder associated with vivid recollections of the accident, and she has chronic depression that relates to her injuries and their adverse consequences to her. The prognosis for those problems remains guarded.

Effects of disabilities on the plaintiff’s ability to work

169. The disabilities outlined above have had an adverse impact upon the ability of the plaintiff to pursue and sustain gainful employment, particularly in her pre-injury employment as an enrolled nurse. She is unable to do her pre-injury work: T61.10 – T61.38.

170. The plaintiff has been subject to significant work restrictions due to her injuries. The most recent of those opinions is that the plaintiff has mechanical back ache with radiculopathy and significant pain, without the prospect of amelioration by surgery in the short term. She also has significant consequential psychological problems. All of these matters, and the disabilities outlined at paragraphs [164] to [168] above, have had, and will continue to have, a deleterious impact on the plaintiff’s earning capacity. This fact has been in effect acknowledged by the defendant’s concession in respect of the plaintiff’s past loss of income, which obviates the need to examine the detail of the claim for past economic loss.

Mitigation

171. The plaintiff has an obligation to mitigate her damages: s 136 of the MAC Act. The course of medical consultations and allied treatments, and the reports relating to those events as summarised at paragraphs [22] – [125] above, and the plaintiff’s pursuit of mitigatory employment satisfactorily indicates that she has fulfilled that obligation. The defendant did not seek to argue otherwise.

Damages assessment

172. The MAS assessment process has resulted in a finding that the plaintiff’s accident-related impairments do not exceed the threshold requirement of 10 per cent. She is therefore not entitled to an award of any damages for non-economic loss: s 131 of the MAC Act. My assessment of the plaintiff’s entitlement to damages is as follows. On the median life tables, the plaintiff has a statistical life span of 31 years, for which the 5 per cent multiplier is 833.8.

Past economic loss

173. The plaintiff’s claim for past economic loss involved difficulty in calculating differential rates of loss over varying periods. In light of those difficulties, during the course of final submissions, the parties reached a pragmatic agreement to the effect that the plaintiff’s damages for past economic loss be assessed in the amount of $200,000: T148.22, T149.1.

174. In light of that agreement it is unnecessary at this point to review the sequential details of the plaintiff’s work history both before and after the accident to identify the differential calculations of comparable earnings for the purposes of arriving at a calculation of her past economic loss.

175. That agreement incorporated two components, the first being a gross amount of $25,040, on which it was agreed that the tax component was negligible, and the balance of $174,960 net. I therefore assess the plaintiff’s damages for past economic loss in the amount of $200,000.

Future economic loss

176. Before an assessment can be made of the plaintiff’s damages for future loss of earning capacity there must be a finding as to the plaintiff’s most likely future circumstances but for the injury: s 126 of the MAC Act.

177. In that regard, it is plain from the plaintiff’s sound and consistent work history and from the circumstances of her husband’s history of illness, that she had good reason to continue in her pre-injury employment as an enrolled nurse as the principal wage earner in the family. There is nothing in the evidence to suggest that she would not have continued to work until the age of 67 years.

178. In revised submissions forwarded on 20 July 2015 (MFI “12”) the plaintiff made a claim for future economic loss comprising a projection of $600 per week on the 5 per cent tables for 9 years to age 67 (x 360.1), less 15 per cent discount for vicissitudes, namely $193,851.

179. On behalf of the plaintiff it was submitted that her continuing to work in her present niche position, working unsocial hours in a retirement home, placed great strain on her in respect of her enjoyment of family life. The implication of that submission was that damages for future economic loss should be assessed on a different basis to a simple comparison between her current net earnings and the earnings she could have derived if she had not been injured. There is much force in that argument.

180. However, there are a number of imponderables associated with the proposition advanced on the plaintiff’s behalf. Whilst it is not necessary to exhaustively list those matters, they include the fact that in order to mitigate her loss of income, the plaintiff is required to work those unsocial hours comprising live-in casual weekend work, which limits her scope for pursuing other activities in non-working hours. This is undoubtedly wearying for her and inconvenient for her marriage, and that this situation may therefore not continue for the remainder of her working life.

181. Furthermore, as is a commonly encountered occurrence in modern times, the plaintiff’s present employment may not continue. This may occur for reasons that might be unrelated to her resolve and to her motivation. This is a potential vicissitude that operates adversely to the defendant. There are concerns over the continued availability of such employment and the plaintiff has identified a workplace relations issue and changed working conditions in the recorded history that would ordinarily be of concern for her interrupted continued employment: Exhibit “B”, p 93.

182. If the plaintiff were to find herself in the situation of having to look for alternative work, she would doubtless have to disclose details of her medical history that a prospective employer would consider relevant to demonstrating an ability to carry out the work, including that of an enrolled nurse. In that regard, her lumbar and related radiculopathic problem, together with matters of disability and impairment outlined at paragraphs [164] to [168] above would represent significant obstacles to gaining alternative employment, especially at her age.

183. It is reasonable to assume that few employers, if any, would allow the plaintiff to continue work in the circumstances of her present job, where she finds the need to lie down. Such positions would be rare. Furthermore, her continued ability to attend her present employment is dependent in part upon the continued resolve of her husband to drive her to and from work: Exhibit “B”, p 93.

184. Furthermore, the oral evidence and reports of Dr Conrad, which I prefer and accept to other contrary opinions for the reasons provided, gives rise to doubts about the plaintiff’s ability to continue in her mitigatory employment.

185. In those circumstances, I consider that the most appropriate method by which to assess the plaintiff’s future loss of earning capacity is to award her a significant buffer amount to compensate her for her impairment of earning capacity and having due regard to the sheltered and precarious nature of her present employment: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. I consider an appropriate buffer amount to be $150,000. I therefore assess the plaintiff’s damages for future economic loss in the buffer amount of $150,000.

Past loss of superannuation

186. The assessment of the loss of employer funded superannuation benefits consequent upon the assessment of past economic loss must proceed in two stages in view of the gross and net components of that assessment: Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25, at [60] – [63].

187. On the gross component of $25,040 being the weekly payments of workers’ compensation payments, in accordance with the authority cited, the superannuation loss is assessed at 9 per cent of that amount, namely $2253.

188. On the net component of past loss of income of $174,960, in accordance with that authority, the loss of superannuation is assessed at 11 per cent of that amount, namely $19,245.

189. The aggregate of those two amounts is $21,498. I therefore assess the plaintiff’s damages for the loss of employer funded superannuation benefits in the amount of $21,498.

Future loss of superannuation

190. The parties agreed that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 12 per cent of the amount assessed for future loss of earning capacity, namely $150,000. I therefore assess the plaintiff’s damages for future loss of superannuation in the amount of $18,000.

Past paid domestic assistance

191. On behalf of the plaintiff it was submitted that the claim for past paid domestic assistance should be assessed in the sum of $18,720. That amount comprised a calculation of $90 per fortnight or $45 per week of paid cleaning services over the past 8 years.

192. In contrast, on behalf of the defendant, it was first submitted that on the basis of the defendant’s construction of the medical evidence which limited the duration of the plaintiff’s accident-related need for domestic assistance (which I have not accepted) such damages should be limited to 67.4 weeks between 4 March 2005 and 19 June 2006, for 6 hours per week at $22 per hour: MFI “7”.

193. I am satisfied that the disabilities of which the plaintiff complained prevented her from carrying out the work she previously did herself and which was undertaken by a domestic worker after the accident and for which she had paid $90 per fortnight, or $45 per week. I consider that amount was reasonably incurred by the plaintiff as a result of her accident.

194. It therefore remains to identify the period or periods over which that expenditure was incurred. It appears that the amount of $90 per fortnight was not a continuous expense incurred from the time of the accident until the present time. Mr Wallace’s evidence indicated, without identifying a specific commencement date, that there was an interval of time after the accident and before a domestic cleaner was engaged, and that there were periods when that expense could not be met, and there were some years, it appears 2 years, when cleaners were not employed: T80.15 – T80.32.

195. The evidence of the plaintiff suggests that apart from an unidentified period beforehand, a cleaner has been employed for about 2.5 hours per fortnight since 2008: T28.40 – T29.2.

196. The state of the evidence on this issue poses obvious problems for accurate assessment and precludes a precise calculation. In those circumstances, the calculation of the loss must be attempted as best can be achieved where the evidence has been left sparse.

197. The period between January 2008 and the commencement of the hearing is 7.5 years. The cost incurred for the employed cleaner at the rate of $45 per week in that period is therefore identified at $17,550. Any attempt at estimating the extent of this area of expenditure before 2008 would, on the evidence adduced, be speculative.

198. I therefore assess the plaintiff’s damages for past paid domestic assistance in the form of cleaning services in the amount of $17,550.

Past gratuitous domestic assistance

199. On behalf of the plaintiff, it was submitted that damages for past gratuitous domestic assistance should be assessed in the amount of $108,160. That amount was based on a projection of 10 hours per week of the assistance provided by Mr Wallace over the past 8 years, or 416 weeks, at an average of $26 per hour, yielding the amount of $108,160.

200. In contrast, the defendant contended that on either of its submitted scenarios, there should be no allowance made for past domestic assistance that had been provided gratuitously by the plaintiff’s family.

201. In my view both those submissions were problematic. I consider the plaintiff’s contention to involve a claim for more hours than the evidence reasonably permits, leading to a claim for too many hours. Furthermore, the plaintiff’s submissions relied upon an inaccurate figure that was said to represent the average hourly rate, but it did not conform to the statutory requirements of s 141B(4) of the MAC Act:

202. On account of the latter factor, in the course of final submissions, the plaintiff was given leave to submit evidence of the historical hourly rates in a supplementary submission which was received on 21 July 2015. Unfortunately, the further schedule submitted on behalf of the plaintiff only provided figures commencing from 1 January 2008, and not from 5 March 2005 which was the date from which the claim was argued to have commenced.

203. As a result, the proceedings were relisted on 19 August 2015 to clarify the plaintiff’s submission on the plaintiff’s claim for past gratuitous domestic assistance. As a consequence, on 19 August 2015, the plaintiff submitted a further schedule of historical hourly rates for the claim pursuant to s 141B of the MAC Act: Exhibit “R”.

204. In making an assessment of this head of damage it is useful to refer to the medical opinions concerning the plaintiff’s ability to carry out her ordinary domestic tasks but with the caution that the medical opinions on the issue of the plaintiff’s need for domestic assistance are not of themselves prescriptive of that issue. The medical witnesses have not been qualified to provide reliable expert evidence on such matters: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83].

205. Dr Pollard considered that the plaintiff’s prognosis was that she would experience ongoing discomfort and pain which was unlikely to improve with age and that she was likely to experience exacerbations with normal day to day activities, which I infer, would include housework: Exhibit “B”, p 10.

206. Dr Deveridge considered the plaintiff to be permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing and dragging activities, and that she has limitation in other activities, which I infer from the context of his reference to family assistance, also refers to domestic tasks: Exhibit “B”, p 60.

207. Dr Deveridge also noted that the plaintiff remained limited in her activities of daily living, and that the plaintiff’s husband did most of the strenuous housework and other identified tasks: Exhibit “B”, p 64. Dr Deveridge provided an indication of his view of her need for assistance to be at least 6 hours per week on an indefinite basis: Exhibit “B”, p 54. That view is not prescriptive, and must be evaluated alongside the evidence of the plaintiff and that of Mr Wallace.

208. Dr Lee was asked to consider the specific question of the plaintiff’s need for domestic assistance and noted that the plaintiff could not clean her house: Exhibit “B”, p 73. His unqualified view of the plaintiff’s need for domestic assistance of about 4 – 6 hours per fortnight must be read as being subject to the evidence of the plaintiff and Mr Wallace as to the extent of the need: Exhibit “B”, p 78; Coles Supermarkets Australia Pty Limited v Haleluka, at [55].

209. Dr Conrad was of the view that the plaintiff’s need was for about 6 hours of home help if her family was unable to provide assistance with the heavier aspects of her housework: Exhibit “B”, pages 116, 119, 123, 127, 128. Those views must also be considered in the light of the evidence of the plaintiff and her husband.

210. The defendant’s medical experts were dismissive of the plaintiff’s need for domestic assistance: Exhibit “1”, pages 23, 32, 41, 48 (Dr Harvey); pages 56, 64, 70, 74, 79 – 80, 86, 91, 115 – 116, 124, 131 (Dr Lewin); p 109 (A/Prof Jones). As with the opinions of the plaintiff’s medical experts, those views were unqualified and not definitive. The reasoning in support of those views was insufficient to satisfy the criteria of UCPR r 31.27(1)(c) and Sch 7 cl 5(1)(c).

211. Although the views of the authors of the medical reports provide some insight into the issue of the plaintiff’s need for domestic assistance, I consider the evidence of the plaintiff and her husband to be more relevant and reliably indicative of the need and the extent of the need for such domestic assistance: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].

212. The plaintiff lives in a large 5 bedroom split level home on a half-acre block of land with lawns and gardens: T25.1 – T25.32. Before her injury, the plaintiff attended to the maintenance of the lawns, edges and gardening: T26.25 – T27.4. The evidence in chief as to how long those tasks would take to fulfil was left in a vague and imprecise state:

“Q. I see. So to mow the lawn round at your place at the time of the accident would involve what time period?

A. It would take a couple of hours to mow the lawn.

Q. And then to use the edger?

A. Yes. Half an hour, an hour, I'm not quite sure.

Q. And the gardening. How often on average a week at that time were you spending out in the garden doing gardening work?

A. I don't remember the actual times. I would do bits and pieces.

Q. On average, how much time a week or a fortnight, whatever--

A. Maybe a couple of hours.”

[T26.42 – T27.4]

213. The plaintiff also gave evidence that before the accident, she vacuumed, swept and mopped the floors (T27.6 – T27.21), hung the washing, cleaned the kitchen (T27.26) and did the ironing (T27.34 – T27.39). Before the accident, she also did the cooking: T28.1.

214. The plaintiff stated that after her injury, her husband took over the gardening, lawns and edges (T27.49 – T28.7), as well as the cooking, and household chores: T28.15 – T28.39.

215. The plaintiff estimated that her husband’s described activities took “ten, 12 maybe, with out door work” per week: T29.28 – T29.35. She also estimated he spent a further “couple of hours” per week to do the shopping: T29.50.

216. The plaintiff conceded that before 2012 (T67.19) she did some of the domestic work in the form of hanging the washing and she does the ironing (T63.40), loading the washing (T65.33), wiping down benches (T65.41), some light vacuuming of floors (T65.44) and some mopping of floors (T65.48). She also conceded that there was a gap in the period of claim where her husband did some of the work and at other times there was work carried out by a paid cleaner: T63.44 – T64.25.

217. Mr Wallace essentially confirmed the plaintiff’s evidence as to the domestic tasks that he now carried out in lieu of the plaintiff: T79 – T83. The effect of his estimate of the time taken by him in respect of him carrying out those duties imprecisely totalled about 9 – 10 hours per week: T81.22; T81.31; T82.24; T83.3 – T83.25; T83.39; T84.36; T84.46; T85.4 – T87.30.

218. The evidence of Mr Wallace as to the time taken for his additional domestic work was not precise. This is also evident from the overlapping time when he was undertaking chemotherapy: T123.28 – T124.33.

219. The conclusions I have drawn from the evidence I have cited is that first, although the evidence as to time taken to carry out the work that would otherwise have been undertaken by the plaintiff was imprecise, on the balance of probabilities, the 6 hours/6 months threshold demanded by s 141B of the MAC Act has been satisfied in respect of the period from the time of the accident until the present time, and secondly, the amount described by him and Mrs Wallace in the range of between 9 – 12 hours per week should be discounted on account of imprecision in the evidence. On that basis, I consider that the weekly hours claimed, should be fairly assessed at a lesser number of hours, namely 8 hours per week instead of the claimed 9 – 12 hours per week.

220. Applying that finding to the evidence of hourly rates incorporated within Exhibits “6” and “R”, the calculation is shown in the Appendix to be $101,165.

221. I therefore assess the plaintiff’s damages for past gratuitously provided domestic assistance in respect of cleaning services in the amount of $101,165.

Future paid domestic assistance

222. On behalf of the plaintiff it was submitted that the plaintiff’s damages for future paid domestic cleaning services should be assessed at $263,040. That sum comprised the projection of $320 per week, being 8 hours of such assistance per week, at $40 per hour, over the plaintiff’s remaining life span, to yield $263,040.

223. In contrast, the defendant conceded that, based on the plaintiff’s evidence that she would continue to need the presently provided fortnightly assistance for which she pays $45, but to be increased in frequency to weekly assistance, at $90 per week, which results in an assessment of $75,042.

224. In my view, both submitted approaches are problematic. The approach contended for the plaintiff claims too many hours per week, and does not reflect the need to apply a discount for potential adverse vicissitudes. The approach contended by the defendant involves too few hours having regard to the submission that there should be no allowance made for future gratuitous domestic assistance, and the defendant’s submission does not adequately take into account the plaintiff’s need for such assistance, and the health situation of the plaintiff’s husband who presently provides a good deal of domestic assistance.

225. I accept the plaintiff’s evidence to the effect that 2 hours per week of paid cleaning services would be appropriate in place of the present arrangement of 2 hours per fortnight: T28.50; T29.12; T30.5.

226. The projection of $90 per week, being 2 hours per week at $45 per hour, at 5 per cent over 31 years (x 833.8) yields the sum of $75,042. That sum must be discounted by the conventional or standard 15 per cent discount to reflect the potential adverse vicissitudes. This yields an amount of $63,785.

Future gratuitous domestic assistance

227. On behalf of the plaintiff, a claim for future gratuitous domestic assistance was made in the amount of $138,096: MFI “8”. That amount was based on an assessment of 6 hours per week at $28 per hour for 30 years, undiscounted.

228. The defendant’s submissions made no allowance for this head of damage on the basis that an alternative allowance had been conceded for $45 per week of paid assistance in the sum of $32,084.

229. In my view, both of those submissions are problematic and cannot be accepted as they stand.

230. The defendant’s submission totally ignores the effect of the evidence of the plaintiff and her husband as to the domestic assistance presently provided. To accept that submission would therefore result in the plaintiff being significantly undercompensated in respect of this head of claim. Furthermore, to allow only 1 hour per week for paid domestic assistance is both unrealistic and inadequate.

231. In my view, the plaintiff’s submission of a need for 6 hours per week for continuing domestic assistance provided gratuitously should be accepted, but with qualifications. Whilst the reduction from 8 hours per week that I have allowed for the past, down to 6 hours per week adequately reflects the allowance for an extra 2 hours per week for future paid domestic assistance, a discount for vicissitudes must be applied.

232. In arriving at that discount, the significant factors to be weighed are the prospect that the plaintiff’s husband may not be able to continue to always provide the described services due to his own health issues (a vicissitude adverse to the defendant) and the likelihood that as the plaintiff ages, she may no longer need such a large house (a vicissitude adverse to the plaintiff). In balancing those considerations, I consider that a conventional 15 per cent discount should apply. Accordingly, I assess the plaintiff’s damages for future gratuitous domestic assistance in the amount of $119,066.

Fox -v- Wood

233. As a result of the agreement of the parties concerning the assessment of past economic loss, it is agreed that it is no longer necessary to make an assessment of the amount of tax that had been deducted from the weekly workers’ compensation payments the plaintiff has received since the subject accident: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

Future out-of-pocket expenses

234. The plaintiff’s ongoing symptoms of pain, discomfort and restriction of movement, together with her accident-related vulnerability to episodic exacerbations of symptoms caused by undertaking every day activities, requires that an allowance be made for the cost of future treatment.

235. On behalf of the plaintiff a claim was made for a buffer amount of $40,000 to cover her need for future treatment: MFI “8”. In contrast, the defendant primarily submitted that there should be no such allowance. That position was based on an acceptance of the defendant’s medical reports, whereas I have preferred the plaintiff’s medical experts for the reasons already identified. The defendant submitted in the alternative, that a lump sum of $10,000 was an appropriate allowance for the plaintiff’s need for future treatment: MFI “7”.

236. The plaintiff’s evidence as to her current treatment regime was that she has physiotherapy about once per month, she takes medication, and she attends a pain management clinic where she pursues strengthening exercises and pool work: T22.35 – T23.14; T24.8. She takes anti-epileptic and anti-depressant drugs as part of her pain management regime: T24.27.

237. In 2009, Associate Professor Owler initially suggested the plaintiff have a posterior interbody fusion and rhizolysis, as a last resort. In the meantime, conservative therapy was recommended: Exhibit “B”, p 33. When conservative measures provided unsuccessful, surgery was again considered (Exhibit “B”, p 34) however in 2014, it was thought that a good result was unlikely in her circumstances so that multi-disciplinary pain management was recommended: Exhibit “B”, p 36.

238. Neurological advice was that the plaintiff pursue analgesia and physiotherapy: Exhibit “B”, p 40. Rehabilitation maintenance treatment was also suggested: Exhibit “B”, p 45.

239. In 2013, surgery for interbody fusion and rhizolysis was again recommended at an identified cost of about $10,000: Exhibit “B”, pages 47 – 48. Another estimate of the cost of surgery was of the order of $47,250: Exhibit “B”, p 65. Medication was also recommended: Exhibit “B”, pages 56, 65.

240. Monthly general practitioner consultations with supportive physiotherapy and hydrotherapy have been recommended: Exhibit “B”, p 65. Dr Conrad estimated that conservative treatment costs would be about $2000 per annum: Exhibit “B”, p 128.

241. Another future treatment cost estimate involved physiotherapy for $2000 per annum: Exhibit “B”, p 68. An additional allowance should be made for future psychiatric or psychological consultations and related medications: Exhibit “B”, pages 94, 108.

242. There are many imponderables and uncertainties as to the likely timing, frequency and cost of the suggested treatments, and the likelihood and or timing of possible surgery is unclear. In those circumstances, I consider that the most appropriate method of assessment to address those identified needs is to award a buffer amount to cover the plaintiff’s future treatment needs that cannot be calculated with precision.

243. Therefore, rather than identifying individual lump sum costings of future treatment for discounting for deferral of cost, or identifying a weekly sum representing recurring treatment costs for projection, on the authorities already cited in respect of a buffer award for future economic loss, I consider that the most appropriate method by which to compensate the plaintiff for the prospect that she will require accident-related future treatment, is by an award of a buffer sum of $15,000. I therefore assess the plaintiff’s damages for future treatment expenses in the buffer amount of $15,000.

Past out-of-pocket expenses

244. The parties have agreed that in the event the plaintiff’s arguments concerning the cause of her back injury are accepted, then damages for past out-of-pocket expenses should be assessed in the amount of $40,701.76. As I have made a causation finding to that effect, as is recorded at paragraph [163] above, I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $40,701.76.

Summary of damages assessment

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

(a) Past economic loss	$200,000
(b) Future economic loss	$150,000
(c) Past loss of superannuation	$21,498
(d) Future loss of superannuation	$18,000
(e) Past paid domestic assistance	$17,550
(f) Past gratuitous domestic assistance	$101,165
(g) Future paid domestic assistance	$63,785
(h) Future gratuitous domestic assistance	$119,066
(i) Fox v Wood	Nil
(j) Future out-of-pocket expenses	$15,000
(k) Past out-of-pocket expenses	$40,701.76
Total	$746,765.76

Disposition

246. The plaintiff is entitled to a verdict and judgment in her favour in the amount of $746,765.

Costs

247. As the plaintiff has succeeded in the proceedings, she is entitled to have her costs of the proceedings paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other costs order.

Orders

248. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $746,765;

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.

APPENDIX

Period	Weeks	Hourly rate	Hours per week	Calculation
1. 05.05.05-20.05.05	02.14	$21.14	8	$361.91
2. 21.05.05-19.08.05	12.85	$21.80	8	$2241.04
3. 20.08.05-18.11.05	12.85	$21.87	8	$2248.23
4. 19.11.05-17.02.06	12.85	$21.95	8	$2256.46
5. 18.02.06-19.05.06	12.85	$21.72	8	$2232.81
6. 20.05.06-18.08.06	12.85	$22.10	8	$2271.88
7. 19.08.06-17.11.06	12.85	$22.31	8	$2293.46
8. 18.11.06-17.02.06	13.00	$22.90	8	$2381.60
9. 18.02.07-18.05.07	12.71	$22.97	8	$2335.58
10. 19.05.07-16.08.07	12.71	$23.24	8	$2363.04
11. 17.11.07-15.02.08	12.85	$23.45	8	$2410.66
12. 16.02.08-16.05.08	12.71	$23.04	8	$2342.70
13. 17.05.08-15.08.08	12.85	$23.34	8	$2399.35
14. 16.08.08-21.11.08	13.85	$23.46	8	$2599.36
15. 22.11.08-20.02.09	12.85	$23.66	8	$2432.24
16. 21.02.09-15.05.09	11.85	$23.48	8	$2225.90
17. 16.05.09-21.08.09	13.85	$24.00	8	$2659.20
18. 22.08.09-20.11.09	12.85	$24.24	8	$2491.87
19. 21.11.09-19.02.10	12.85	$24.75	8	$2544.30
20. 20.02.10-21.05.10	12.85	$24.67	8	$2536.07
21. 22.05.10-20.08.10	12.85	$24.64	8	$2532.99
22. 21.08.10-19.11.10	12.85	$24.91	8	$2560.74
23. 20.11.10-18.02.11	12.85	$25.65	8	$2636.82
24. 19.02.11-20.05.11	12.85	$25.65	8	$2636.82
25. 21.05.11-19.08.11	12.85	$25.68	8	$2639.90
26. 20.08.11-18.11.11	12.85	$25.41	8	$2612.14
27. 19.11.11-17.02.12	12.85	$26.37	8	$2710.83
28. 18.02.12-18.05.12	12.71	$26.36	8	$2709.80
29. 19.05.12-16.11.12	26.00	$27.03	8	$5622.24
30. 17.11.12-17.05.13	17.00	$27.70	8	$3767.20
31. 18.05.13-15.11.13	25.85	$27.82	8	$5753.17
32. 16.11.13-16.05.14	25.85	$27.96	8	$5877.25
33. 17.05.14-07.07.15	59.28	$28.42	8	$13477.90
TOTAL	$101,165.46

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Decision last updated: 25 August 2015