Winfield v Jones

[2010] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

WINFIELD v JONES

[2010] SADC 24

Judgment of His Honour Judge Beazley

3 March 2010

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES

Assessment of Damages – plaintiff injured on 10 September 2001 in motor vehicle accident in which her father died – plaintiff suffering from pre-existing biliary dysfunction; narcotic seeking behaviour and reactive depression prior to accident - plaintiff had pre-existing degenerative spinal changes which were asymptomatic before the subject accident - physical injuries sustained by the plaintiff in subject accident substantially resolved, leaving a minor impairment of the cervical and thoracic spine and right hip – the significant issue at the trial was the extent to which the subject motor vehicle accident was causative of the plaintiff’s persistent psychiatric condition – conflict of expert evidence in part based upon different understandings as to the aetiology of the plaintiff’s psychiatric condition – relevance of pre-existing physical and psychiatric condition – difficulty in disentangling factors contributing to ongoing psychiatric condition - whether plaintiff's grief "normal" and non compensable - whether family's abnormal reaction to loss of her father too remote - the plaintiff had not been employed for 10 years prior to the subject accident - whether she retained any residual earning capacity irrespective of the subject accident.

Held: The plaintiff's damages assessed at $119,952.05 inclusive of interest to judgment.

Wrongs Act 1936 (SA) s 35A(1), referred to.
Shorey v PT Ltd (2003) 77 ALJR 1104; City of Brimbank v Halilovic [2000] VSCA 12; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Cameron v Sullivan [1962] QWN 32; Nominal Defendant v Clancy [2007] NSWCA 349; Tame v NSW (2002) 211 CLR 317; Pham v Lawson (1997) 68 SASR 124 at 150; Nader v Urban Transit Authority (1985) 2 NSWLR 501; Trevorrow v SA [2007] SASC 285; NSW v Moss (2000) 54 NSWLR 536; Wilson v Peisley (1975) 50 ALJR 207; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Purkess v Crittenden (1965) 114 CLR 164; Hoffmueller v Commonwealth (1981) 54 FLR 48, discussed.

PROCEDURE

Subpoenas – plaintiff had made applications for Centrelink benefits before and after the subject accident – defendant causes subpoena to be issued seeking access to the documents comprising the plaintiff’s file with Centrelink- whether application by the defendant is exempted from the prohibition against release contained in s 207 of the Social Security (Administration) Act 1999 (Cth) – alternatively whether the Court may direct the plaintiff to execute an authority obliging Centrelink to release relevant documents to the defendant.

Held: The documents sought by the defendant from Centrelink not exempted from prohibition in s207 of the Act. Subpoena issued at request of defendant set aside. The court however empowered to direct the plaintiff to execute an authority to Centrelink to release specified documents.

Social Security (Administration) Act 1999 (Cth) s 207; Social Security Act 1991 (Cth) s 1182, referred to.
Federal Commissioner of Taxation v Nestle Australia Limited (1986) 12 FCR 257; El–Helou v Smith [2009] NSWSC 741; Campbell v Biernacki [2009] TASSC 117; Merkuloff v Yalisheff [2003] NSWSC 1183; Smith v Swinfield (1981) FLC 91-084; Campbell v Biernacki [2009] TASSC 117; Attard v Hore [2002] QSC 437; Wray v Wray [2007] NSWSC 164; Suncorp Metway Insurance Limited v Brown [2004] QCA 325, considered.

WINFIELD v JONES
[2010] SADC 24

Introduction

1. The plaintiff claims damages for personal injuries allegedly sustained by her, as a passenger, in a motor vehicle accident which occurred on 10 September 2001. The trial proceeded before this Court as an assessment of damages. 

2. Some six years had elapsed between the date of the motor vehicle accident and the commencement of the trial. That long delay, together with the plaintiff’s unfortunate pre-accident employment, personal and medical history, has made the task of assessing damages more complex than it might otherwise have been.

3. The trial substantially involved the question of whether the plaintiff in fact continues to suffer from a persistent psychological condition; and, if so, the extent to which the subject accident, as contrasted with non-compensable factors, was causative of the plaintiff’s losses.[1]

   [1]    Tame v New South Wales (2002) 211 CLR 217

4. At the commencement of the trial many volumes of documents recording the plaintiff’s pre-accident medical and personal history were produced in answer to subpoenas issued upon the application of the defendant.

5. That documentation dominated the evidence at the trial.  The credibility and the reliability of the lay witnesses, and the resolution of the differing opinions of the expert medical witnesses, in particular those of the respective psychiatrists Dr Tottman and Professor Goldney, in a large manner depended upon the construction of often cryptic notes contained in those records.[2]

   [2]    cf Airlink Pty Ltd v Paterson [2009] NSWCA 257

6. There is however no dispute as to the nature of the subject motor vehicle accident nor the events immediately preceding it.

   The Accident

7. The plaintiff, then aged 40 years, and a resident of Mount Gambier, had been informed at about 9.30 am on the day of the accident that her daughter, residing in Adelaide, was at risk of self harm.  The plaintiff’s father had volunteered to drive her from Mount Gambier to Adelaide. He commenced driving his Toyota Celica motor vehicle at about 11.30 am, with the plaintiff as passenger.  At about 3.45 pm, a Mercedes Benz four wheel drive motor vehicle driven negligently by the defendant in a southerly direction veered across the Dukes Highway near Tintinara in the South East of the State, and collided head on with the Toyota Celica.

8. The plaintiff’s father died immediately upon impact.  The plaintiff was trapped in the motor vehicle alongside the body of her deceased father for approximately three hours.  The plaintiff experienced a loss of consciousness but regained it at the scene.  She recalled that there was a “lot of smoke coming from the Toyota Celica, and the engine was still running”.  She feared that the motor vehicle might catch fire while attempts were made to extricate her.

9. She was conveyed by helicopter to the Flinders Medical Centre at about 5.30 pm where it was noted that she was experiencing nausea. Her initial complaints were of pain in the cervical and upper thoracic spine, right hip and right forearm. She had suffered a 3 cm laceration above her right eye and various other bilateral lacerations and bruising. She discharged herself that evening.  On the next day, and later, on 1 October 2001, the plaintiff presented to her treating doctor, Dr Klaveniek, with symptoms of recurring headaches; neck pain; right arm, hip and leg pain.  She was described as being “greatly psychologically distressed”.[3]  She also complained of ongoing nightmares, flash backs, poor sleep, poor concentration and anxiety. 

   [3]    Report of Dr. Klaveniek, 14/4/03 - Exhibit P4.5; and T. p.216; and Flinders Medical Centre Notes Exhibit D.15(4)

   The Proceedings

10. The plaintiff commenced these proceedings in the Mount Gambier Magistrates Court on 23 October 2001. Thereafter they have had a long and tortuous history.

11. Ultimately, they were removed into this Court, and the defendant admitted liability for the motor vehicle accident.

12. In her pleadings the plaintiff claims for non-economic loss; past and future loss of earning capacity; past voluntary assistance; future care and past and future medical expenses.

13. The plaintiff alleged in those pleadings that in consequence of the subject accident, she has suffered physical and psychological disabilities which included:

    ·Lacerations and bruising to her face, legs, knees and torso.

    ·Glass embedded in her face and head.

    ·Back pain, chest pain, neck pain, interscapular pain radiating to her neck and through her chest to her sternum.

    ·A right arm injury.

    ·A right hip and leg injury.

    ·A closed head injury.

    ·Headaches.

    ·Dizziness.

    ·A psychiatric injury variously diagnosed as a post-traumatic stress disorder; a reactive depression; or a Major Depressive Disorder.

    ·Post concussion syndrome.

    ·Chronic frontal lobe syndrome.

    ·Memory deficit.

    ·Anxiety, nightmares, sleep disturbance, decreased energy and appetite.

    Background

14. It is common ground that over the 6 intervening years to trial most of the symptoms from the plaintiff’s alleged physical injuries have substantially resolved.  She had attended upon Dr Klaveniek on 22 August 2006, feeling better, and having regained some weight.  She had seen him regularly since the subject accident complaining inter alia, of symptoms of depression; of pain in the cervical and thoracic spine, and right hip; and consequential headaches. 

15. There is no doubt that the plaintiff suffered from a post-traumatic stress disorder, and a major depressive disorder following the subject accident.[4] The aetiology of the plaintiff’s persistent emotional disability, and the attempts to disentangle pre-accident and non-compensable factors contributing to that overall disability, presented significant difficulties at the trial.

    [4]    Exhibit D4.11 – the report of Prof Robert Goldney dated 29/08/06, which includes a synopsis of the opinions of Dr Tottman, Mr Reid, Ms Kirkby and Dr Klavenick.

16. There is also no doubt that prior to the subject accident the plaintiff had led a troubled life.  She had a very extensive history since 1984, of severe abdominal pain, radiating through the right upper quadrant of her back and lower chest. This condition was described in the medical notes as “a recurrent biliary dysfunction”.  The condition is a matter of some complexity in the context of this trial.  The bases of the plaintiff’s complaints may be partly physical in nature; partly narcotic seeking behaviour; or depression from those and other stressors in her life. 

17. Despite some equivocation by her when giving evidence, I have no doubt that the plaintiff had, at times, engaged in narcotic seeking behaviour.  She had lost 20 kilograms in weight between 1997 and 1999. She was regarded, almost universally by those who treated her over the 10 years pre-dating the subject accident, as exhibiting such narcotic seeking behaviour.[5]

    [5]    See generally the Flinders medical notes and the Hawkins Medical Clinic notes - Exhibit D15 (1) and (4). In other, including the Mount Gambier Hospital notes, shortly before the accident on 20/8/01, the plaintiff was treated as having a genuine pain disorder.  Dr Tottman expressed the opinion that the absence of attendances in January to May 2001, and her then presentation was indicative of no addiction at that time.

18. Her pre-accident debilitating medical conditions included depression, which was reactive to her abdominal pain; agoraphobia; and the previously described recurrent biliary dysfunction. 

19. She had not been engaged in any remunerative employment for a period of 10 years before the subject accident.

    ·The plaintiff’s case

20. It was the plaintiff’s case that her pre-accident biliary dysfunction had “settled considerably”, and that her depressive condition was “virtually under control”, in 2001, prior to the subject accident, such that she was contemplating re-entering the work force.[6]  She said that she was still considering her options at the time of the accident. She concedes that she would have been unable to immediately undertake employment at that time in consequence of an earlier incident on 20 November 2000 in which she had dislocated her right shoulder. 

    [6]    T. p 34

21. Surgery for the reconstruction of her right shoulder eventually took place, after the subject accident, on 7 November 2001, and the plaintiff has made a full recovery from it.

22. The plaintiff also asserted that before the subject accident she would participate in recreational activities; socialise with family and friends; and enjoy weekly outings.  All of that had changed following the subject accident.

23. The plaintiff concedes that there has been considerable improvement in her post accident medical conditions in recent times, however asserts that she has continuously suffered from a persistent disabling psychological condition, which was caused by the accident.  The plaintiff has remained on a Disability Pension, granted to her some years before the subject accident.  With the exception of a short, and apparently unsuccessful period of employment in 2006 for a Bed and Breakfast business in North Queensland, she that asserts she has been unable to engage in remunerative employment since the subject accident.

    ·The defendant’s case

24. The defendant, by contrast, refers to numerous attendances, by the plaintiff upon various medical practitioners, which had occurred on a regular basis until days before the subject accident.  He asks the court to infer from those voluminous medical records that the plaintiff had sought continuous treatment for these debilitating pre-accident medical conditions, such that it could not be maintained by the plaintiff that they had either resolved, or were under control, prior to the subject accident.

25. The defendant asserts that the plaintiff was so disabled by her pre-existing medical conditions, that irrespective of the subject accident, she would have been unable to engage in remunerative employment, nor have any greater enjoyment of the amenities of life.

26. The defendant further asserts that in addition to any post traumatic stress disorder symptoms caused by the accident, other factors underlying the plaintiff’s post accident psychiatric condition include the plaintiff’s persistent pre-accident reactive depression; allegedly ongoing narcotic seeking behaviour; the grief and bereavement arising from the loss of her father; and the abnormal antipathetic response of the plaintiff’s family to the loss of her father.  The defendant asserts that any symptoms of post traumatic stress disorder had resolved within a very shot time after the accident.

27. At the trial the defendant asserted that the post accident complaints of neck pain, and other apparent physical symptoms were in fact symptoms of the plaintiff’s pre-accident depression; or, in some cases, narcotic seeking behaviour presented as “genuine sounding symptoms”.  Accordingly he submitted that the plaintiff’s post accident condition was such as to render the risk “far-fetched or fanciful”.[7]

    [7]    Tame v NSW supra at [201]; contrast Hoffmueller v Commonwealth (1981) 54 FLR 48

    The Issues

28. The significant issues at the trial were:

    ·The credibility of the plaintiff in light of her undoubted difficulties in chronologically detailing her pre-accident history.

    ·The aetiology of the plaintiff’s persistent psychiatric condition, and the extent to which the subject accident was causative of it.

    ·Whether the plaintiff’s Post-traumatic Stress Disorder had resolved soon after the subject accident.

    ·The difficulty in disentangling the causes of symptoms and the significance of the pre-accident symptoms of a psychological nature.

    ·Identifying the true nature of complaints made by the plaintiff to medical practitioners prior to the subject accident and the level of such symptoms.  In so far as the complaints were based on narcotic dependence, as opposed to a biliary dysfunction, when was it that the plaintiff ceased to be so addicted?

    ·The significance to be attached to the voluminous pre-accident medical records of the plaintiff produced on subpoena, and whether they contained sufficiently adequate detail to identify the state of the plaintiff’s pre-accident health in 2001.

    ·The extent to which any disability sustained by the plaintiff in the subject accident has resulted in any loss of earning capacity productive of financial loss.

    ·Whether the plaintiff was so disabled by her pre accident medical conditions that, irrespective of the subject accident, she would have been unable to engage in remunerative employment, nor have any greater enjoyment of the amenities of life?

    ·Whether the grief and bereavement, and the abnormal response of the plaintiff’s family to the loss of her father are non-compensable?

    ·Whether the plaintiff has in fact been engaged in remunerative employment, in particular, in the State of Queensland since the subject accident.

    Procedural matters

    ·Subpoenaed documents and adjournment of the trial

29. I have already referred to the voluminous subpoenaed records produced at trial. These included her files with the Royal Adelaide Hospital; the Flinders Medical Centre; the Noarlunga Health Services; the Hawkins Medical Centre; the Moore Street Clinic at Willunga; the Nhill Medical Centre; the Whyalla Hospital; the Christies Beach Medical Centre; the Bridge Clinic; the Mount Gambier Hospital; the Balranald Hospital; the Penola Medical Clinic; the Mossman Medical Centre; the Cairns Base Hospital; the Warinilla Clinic; the Health Commission; the Department for Families and Communities; Housing SA; SAPOL; SA Ambulance Service; Medicare Australia; the notes of her General Practitioner, Dr Klavenick; and certain specified Centrelink documents.

30. The plaintiff was cross-examined extensively, inter alia, about her attendances recorded in the notes of the various medical clinics and hospitals.  It became immediately apparent during the cross-examination of the consulting psychiatrist Dr Tottman, by senior counsel for the defendant, that some of the medical practitioners, who had provided expert reports, had not been made aware of the plaintiff’s personal and medical history as set out in those records.  The question which arose was whether they had respectively obtained a sufficiently detailed pre accident history from the plaintiff.

31. It is trite that an expert opinion is only of such value as the foundation upon which it is based.  Further there is a need for such expert witnesses to reveal the factual and intellectual bases of their opinions.[8] Accordingly, the trial of the assessment of damages was adjourned to enable each of the medical practitioners to consider a summary of those voluminous subpoenaed documents and determine whether, in light thereof, they respectively wished to alter the opinions which they had previously provided.  In the case of Dr Tottman the review of that additional material took approximately six hours of reading; and additional consultations with the plaintiff.

    ·Subpoena directed to Centrelink

    [8]    See Ramsay v Watson (1961) 108 CLR 642; City of Brimbank v Halilovic [2000] VSCA 12; and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305

32. One such subpoena was the subject of detailed argument at the trial.

33. A subpoena, issued upon application by the defendant, was directed to Centrelink, seeking production of various documents in the plaintiff’s Centrelink file.  The documents sought by the defendant were undoubtedly directly relevant to the assessment of the plaintiff’s damages. They would have included correspondence from the plaintiff’s treating practitioner Dr Klaveniek with respect to the plaintiff’s Disability Pension.[9]  They would also be likely to assist the Court in obtaining a more complete understanding of the plaintiff’s psychological history; the nature and extent of her attempts to find employment; and the quantification of benefits received by her.

    [9]    Dr. Klaveniek T. p  210

1. Centrelink opposed the production of documents sought in the subpoena.  It was represented by counsel, Mr D’Assumpcao. Counsel for the plaintiff adopted the argument presented on behalf of Centrelink. The respective submissions of Counsel were directed to the proper construction of the relevant Commonwealth legislation.

2. After hearing submissions I delivered some brief ex tempore reasons for my conclusion that the documents sought by the defendant were caught by the prohibition from production, contained in s 207 of the Social Security (Administration) Act 1999 (Cth) (the “Act”).

3. I intimated that I would expand on those reasons in this judgment.  Accordingly these are my reasons for setting aside that subpoena. 

4. Section 207 of the Act provides that:

   An officer must not, except for the purposes of the social security law ... be required:

   (a)     to produce any document in his or her possession; or

   (b)     to disclose any matter or thing of which he or she had notice;

   because of the performance or exercise of his or her duties, functions or powers under the social security law ... to:

   (c)     a court; or

   (d)     a tribunal; or

   (e)     an authority; or

   (f)      a person;

   having power to require the production of documents or the answering of questions.

   ·Centrelink’s submissions

5. Counsel for Centrelink, Mr D’Assumpcao, submitted that s 207 constituted a blanket prohibition upon the production of the Centrelink documents to third parties. The rationale for such a prohibition, it was submitted, was the need to protect confidential information provided by applicants for social security payments. It was submitted that if such confidentiality was rendered nugatory, it would dissuade applicants from making full disclosure of their circumstances. The exemptions in the section are limited to the protection of the public purse, and, in particular the prevention of fraudulent claims.

6. Mr D’Assumpcao submitted that the expression “for the purposes of social security law” in s 207 ought be construed strictly; and that while there was a dearth of authority as to the proper construction of s 207 of the Act, by analogy provisions in similar fiscal legislation had been construed narrowly.[10]

   [10]   Federal Commissioner of Taxation v Nestle Australia Limited (1986) 12 FCR 257

7. He conceded that the defendant had received a recovery notice from Centrelink pursuant to s 1182 of the Social Security Act 1991 (Cth); and that it thereby had an interest in determining the correct amount to be paid under that Notice. He submitted however that a Notice under that complementary legislation had no bearing on the question of an exemption from the prohibition. He submitted that in consequence of the prohibition in s 207, the court should set aside the subpoena issued by the defendant.

8. Those submissions are consistent with conclusions reached in the subsequent decisions of the Supreme Court of New South Wales in El–Helou v Smith[11], and Tasmania in Campbell v Biernacki[12].

   [11] [2009] NSWSC 741

   [12] [2009] TASSC 117

   The Defendant’s submission

9. Mr Livesey QC, who appeared for the defendant, submitted that Centrelink had issued a Notice pursuant to s 1182 of the Social Security Act 1991 (Cth). Sub‑division C of that complementary legislation had the effect of suspending the defendant’s liability to make payments of compensation to the plaintiff. He submitted that such a Notice disclosed a nexus with the plaintiff’s claim, including the protection of the public purse such that the relevant documents sought by the defendant fell within the expression “for the purposes of the Social Security Law”, and were thereby exempted from the prohibition in s 207 of the Act.  Accordingly, he submitted, there was no statutory prohibition against their production by Centrelink.

10. He submitted that the public interest in the administration of justice is paramount, and that it dictates that an order for the production of all documents relevant to the plaintiff’s claim for damages ought to be made.  He submitted that any ambiguity in the expression “for the purposes of the social security law” ought to be construed consistent with the interests of the administration of justice.[13]

    [13]   See the dicta in Merkuloff v Yalisheff [2003] NSWSC 1183 at [18]

11. In Smith v Swinfield[14] Needham J, in considering similarly phrased Commonwealth taxation legislation, had said:

    The interest of justice required that litigants be able to conduct their cases with a full capacity to produce documents and information unhindered by any implications against such production but, of course, it is in the power of the legislature to prohibit production of any document in Court if the legislature considers that there is a public interest in the non-production of that information or document which has a higher priority than the public interest in the administration of justice.

    [14] (1981) FLC 91-084.

12. I have some sympathy for the position of the defendant.  It is clearly in the interests of justice that the defendant be permitted to inspect documents directly relevant to the plaintiff’s claim for damages, in particular, for economic loss.  A question has been raised in other jurisdictions as to whether proceedings ought be stayed to ensure that a plaintiff exhausts all options open to him to access and produce such relevant documents.[15]

    [15]   See Campbell v Biernacki [2009] TASSC 117 at [20].

    Discussion

13. Ultimately the validity of the subpoena must be resolved by the proper construction of the Social Security Administration Act. Unguided by direct authority, in my opinion the intention of the Australian Parliament in s 207 is abundantly clear. The section constitutes a blanket prohibition against the disclosure of confidential information provided by applicants for social security save for the proper administration of the social security law itself. In my opinion that expression “for the purposes of Social Security law” is indeed limited to ensuring the protection of the public purse.

14. As the Court said in Campbell v Biernacki (supra) at [28]:-

    If the Commonwealth’s records in relation to Social Security benefits and their recipients were not kept secret, needy individuals might be reluctant to apply for such benefits.  The Commonwealth Parliament has therefore legislated to maintain the secrecy of such records.

15. Section 1182 of the Social Security Act provides a mechanism, by the issue of a notice, for the recovery of monies to the Commonwealth. In my opinion that section does not assist the defendant. Section 207 is directed to the confidentiality of information provided by an applicant for Social Security payments. The documents sought by the defendant are of no relevance to the Notice. Indeed s 208 and s 208A of the Act reinforce this construction by providing quite restricted additional exemptions. While I readily accept that the public interest in the administration of justice would, in the absence of a statutory prohibition, demand the production of clearly relevant documents, in my opinion the intention of Parliament so clearly expressed in the statutory prohibition in s 207 of the Act must prevail. 

16. Accordingly, I concluded that the prohibition in s 207 denied the right of the defendant to obtain by subpoena the production of the documents sought by him; and I ordered that the subpoena be set aside.

17. This left open the question whether the plaintiff, as the person entitled to the benefit of the prohibition, could be directed by order of the Court, to access specified documents and produce them to the court.

18. In my opinion a court can make such an order and ought do so if the documents, so specified are directly relevant, and there could be no prejudice to the plaintiff.  Such orders have been made regularly.[16]  I heard submissions as to whether I ought make an order requiring the plaintiff to execute a document in the form of a request to Centrelink seeking the release of those relevant documents.

    [16]   See Attard v Hore [2002] QSC 437; Merkuloff v Yalisheff [2003] NSWSC 1183; Wray v Wray [2007] NSWSC 164; Suncorp Metway Insurance Limited v Brown [2004] QCA 325 and El-Helou v Smith [2009] NSWSC 741

19. I intimated that I was favourably disposed to order the plaintiff to provide an authority to Centrelink to release to her such statements as were made by her in relation to her capacity to work, or relating to her disabilities, from 1995 to the present.  Eventually some of the Centrelink records were produced to the defendant following the execution of such an authorisation.

    Overview of the evidence

20. The plaintiff; her de facto husband, Ricky John Moore; and her daughter Jamey Lee Scholz, all gave evidence as to the plaintiff’s pre and post-accident history.

21. The plaintiff’s aunt, Patricia Dawn Norris, gave evidence as to the plaintiff’s condition shortly after the accident; and as to her more recent post-accident history in the Daintree area of North Queensland.

22. The consulting psychiatrist Dr Vance Tottman; the psychologist Nonie Kirkby; the plaintiff’s general medical practitioner Dr Thomas Klaveniek and the occupational therapist Anne Morgan, were each called by the plaintiff. They respectively gave oral evidence as to the alleged disabilities sustained by the plaintiff in the subject motor vehicle accident.  Expert medical reports and notes prepared by them were respectively tendered without objection.

23. Dr Klaveniek was the only medical practitioner called to give oral evidence who had treated the plaintiff before and after the subject accident. 

24. A bundle of medical reports prepared by the neuropsychologist Mark Reid, the rheumatologist Dr Mark Litwin, the physician Dr Adrian Winsor and the ear, nose and throat specialist Dr Philip Jumeau, were tendered by the plaintiff without the need for them to be called.

25. The defendant called the clinical psychiatrist Professor Robert Goldney to give oral evidence in addition to the tender of expert medical reports prepared by him. The defendant also tendered, without objection, expert medical reports prepared by the rheumatologist Dr Mark Awerbuch without the need for him to be called.

26. I have already referred to the voluminous subpoenaed documents produced by, inter alios, numerous medical clinics and hospitals. These documents were tendered by the defendant, ultimately without objection; and included the treatment notes prepared by various authors, over many years, including the treatment provided by the Flinders Medical Centre Pain Clinic in the first half of 2000.

27. To a large extent the plaintiff’s personal and medical history is detailed in those voluminous subpoenaed documents.  I have at all times been conscious of the submission by counsel for the plaintiff that a cautious approach should be taken in respect of those documents.  While the medical notes at times make oblique references to items such as “abdominal pain” and “headaches” prior to the subject accident; the cause of the apparent symptoms, whether that be “narcotic seeking behaviour”, or “pancreatitis” or otherwise cannot be fully tested in the absence of their authors or at least more detailed notes.  Further the fact that a particular note at the Bridge Clinic on 11 May 2000 refers to complaints of “headache and neck ache” does not without more establish that the plaintiff had the same symptoms before and after the subject accident.

28. Dr Tottman explained in cross-examination that it would be essential to determine whether the narcotic medication was given, rather than merely sought by the plaintiff; and whether it was intravenous or oral medication.  The voluminous notes are in many respects missing that degree of detail.  In addition, it is necessary to understand what else was going on in her life in the period immediately before the accident, including her relationships with her de facto, and her children.

29. While most of the direct facts were not in dispute, the respective counsel submitted that quite different inferences ought to be drawn from those facts. In particular, the inferences to be drawn from the number and the nature of the plaintiff’s pre and post accident attendances upon medical practitioners were canvassed at length in their respective submissions.  I have done my best to compile the relevant number of attendances from the primary sources in the respective medical notes.

30. I will set out in a chronological form some of the background history.  Despite the plaintiff’s evidence that she could not recall some of the events, I find that they correctly reflect her history.  I have not set out all of the historical facts, whether in dispute or not, as these reasons would have been even more prolix.  I have however considered and taken account of all of the submissions from both counsel, whether or not detailed in these Reasons.

31. The narrative of the facts in these reasons reflects my findings. Where matters have remained in dispute, I have made specific findings at the completion of the narrative. 

    Chronology

    ·The plaintiff was born on 22 December 1960 and was thus aged 40 years at the date of the subject accident. 

    ·Her secondary education ceased in Year 9 when she left to work as a cleaner in her grandparents business for about a year and a half. 

    ·On 25 September 1977 she gave birth to her first daughter Kelly and moved to Mount Gambier for family support. 

    ·In 1978 – 79 the plaintiff fell on cement and underwent surgery for the removal of her coccyx.

    ·In or about 1982, when Kelly was aged about 5 years, she undertook a hairdressing course for about 12 months before being employed as a hairdresser in Tintinara and at Mount Newman in Western Australia for 18 months to 2 years. 

    ·Upon her return to Mount Gambier the plaintiff was employed for about 1 or 2 years as a sewing machinist with Fletcher Jones; and then off and on as a waitress and bar worker over a 5 year period; she had also undertaken a training course and had been employed with insurance companies for about 6 months and had worked as an assistant manager in a video store at Morphett Vale.  She had also performed seasonal work shifting irrigation pipes for Yates Seed Company. 

    ·In or about 1984 the plaintiff first suffered severe pain in her abdomen whilst on a cruise. She was prescribed Pethidine and Maxalon over an 18 month period consuming significant quantities 4 or 5 times a day.

    ·The plaintiff underwent a Cholosystectomy for the removal of gallstones in late December 1985.

    In consequence of that stomach problem the plaintiff admitted to engaging in narcotic seeking behaviour from 1985 and that she became frustrated and depressed in consequence of the pain suffered by her since that time. 

    ·Throughout 1987 she attended regularly at the Aldinga Medical Centre seeking narcotics for this “biliary dysfunction”.

    ·On 11 November 1987 the plaintiff gave birth to her second daughter Jamey-Lee Scholz.  She made a decision to take time off work and was in receipt of a supporting mothers benefit. 

    ·Throughout 1988 she attended upon the Aldinga Medical Centre on about 10 occasions seeking narcotics.

    ·In 1989 she presented for one only attendance at the Mount Gambier Hospital in March seeking medication for pain and once at the Aldinga Medical Centre in May.  She continued playing competitive sport at a state level until an injury to her ankle. 

    ·By 1990 the plaintiff had returned to employment with Fletcher Jones as a sewing machinist for about 12 months and as a field hand with Yates Seed on a seasonal basis.  In 1990 the only attendance for medical treatment by the plaintiff, save for successful surgery to her ankle, was upon the Hawkins Medical Centre for pain suffered in a collapsed chair fall while working at Fletcher Jones in or about August. 

    ·The plaintiff said she ceased work because of an increase in symptoms in relation to her “biliary dysfunction”.  She did perform some work as an escort at or about time.

    ·In 1991 the plaintiff sought pain relief purportedly for “biliary dysfunction” on 10 occasions principally between mid August and early September. On 26^th December her brother assaulted her causing a fractured right cheek bone.

    ·In 1992 she attended upon medical clinics for pain relief on 3 occasions between late July and early October.

    ·In 1993 the plaintiff lived a transitory existence and had approximately 23 attendances upon medical practitioners resulting in at least six treatments of Pethidine or Morphine.

    ·In 1994 the plaintiff was assaulted at Warrnambool in Victoria.  She sought pain relief for “biliary dysfunction” on approximately 3 occasions.

    ·In 1995 the plaintiff attended principally at the Whyalla Hospital on some 9 occasions seeking relief for her “biliary dysfunction”.  In July the Flinders Medical Centre notes detailed the history of an assault in respect of which she received fractured ribs on the left side, “with blunt trauma to the abdomen”.

    ·In 1996 the plaintiff sought relief for her “biliary dysfunction” on some 7 occasions principally at the Christies Beach Medical Centre.

    The plaintiff’s grandson Craig was born to her daughter Kelly.  The plaintiff would visit them in Adelaide every 6 weeks or so for a weekend.

    ·In 1997 the plaintiff attended upon medical practitioners on approximately 10 occasions seeking relief for pain and “depression”.  She was first treated by Dr Klaveniek.

    ·In 1998 the plaintiff attended medical practitioners on approximately 31 occasions seeking pain relief.  The SA Health Commission on 26 February informed Dr Klaveniek that the plaintiff was “drug dependent” and that she might present with genuine sounding symptoms in seeking narcotics.

    ·In 1999 the plaintiff sought pain relief on 63 occasions.  She underwent an endoscopy and subsequent ERCP. This diagnosed a narrowed sphincterotomy.  An abdominal x-ray disclosed partial small bowel obstruction.[17] By September she was unable to perform her daily tasks because of pain and from vomiting caused by the biliary dysfunction, and her narcotic seeking behaviour.

    ·In 2000 the plaintiff had presented in an emaciated state and had been diagnosed by Dr Klaveniek as suffering from a Chronic Pain Syndrome and Adjustment Disorder.  She attended seeking pain relief on some 23 occasions and was referred to the Flinders Medical Centre Pain Clinic.  In April the plaintiff’s de facto Ricky Moore sustained severe injuries in a motor vehicle accident.  In April 2000 she presented to the pain clinic taking morphine for pain; antidepressants and anxiety medication. In July 2000 the plaintiff separated from Mr Moore.  On 15 November the plaintiff fell from a ladder dislocating her right shoulder.

    ·In 2001 prior to the subject accident the plaintiff had attended upon clinics and practitioners in respect of alleged abdominal pain on 4 June, 11 July, 16 July, 22 July, 26 July, 6 August, 20 August, 21 August, 23 August, 28 August and 31 August 2001.  Between April 2000 and September 2001, the plaintiff attended to seek narcotic medication on average once every three weeks.  Further, there was no attendance at all between 22 January 2001 and 28 May 2001.  The attendance at the Mount Gambier Hospital on 6 August was treated with immediate effect by 75 mgs of Pethidine and Maxolon.

    ·On 10 September 2001 the subject accident occurred.  On 5 November the plaintiff’s right shoulder was reconstructed.  On some 20 occasions post the subject accident the plaintiff has sought pain relief, ascribing some of her problems to her stomach condition; some to her post operative right shoulder and some to other stressors.

    ·In 2002 there were some 8 attendances upon medical practitioners and in particular Dr Klaveniek principally between 2 August and 21 November.

    ·In 2003 the plaintiff faced a series of events in which her daughter Jamey-Lee was at risk however attended on only 1 occasion in respect of abdominal pain.

    ·In 2004 the plaintiff had some 6 attendances upon medical practitioners seeking narcotics for abdominal pain.  In mid 2004 the plaintiff and her de facto husband Mr Moore left Mount Gambier to travel around Australia before ultimately living permanently in North Queensland.

    ·In 2005 the plaintiff had approximately 7 attendances upon medical practitioners for neck, back and headache but only one for pain relief for abdominal pain.

    ·Throughout 2007 although the plaintiff sought treatment for depression and back pain there was no treatment for “biliary dysfunction”, save for an attendance at the Nhill Hospital on 12 November 2007.

    [17]   See Discharge Summary -  Exhibit  D7

    A synopsis of the evidence other than that detailed in the Chronology

    ·The lay witnesses

    ·The Plaintiff

1. Ms Winfield explained when giving evidence in chief that she was emotional and had trouble remembering events.[18]  She said that she first developed abdominal pain in about 1984, and that for about 18 months thereafter; she had received increasing injections of pethidine.  By late December 1985, when she underwent a cholesystectomy, for the removal of two gallstones, she was receiving up to 4 or 5 injections a day.

   [18]   T. p 53

2. She described how over the next 5 to 10 years she would attend upon medical practitioners seeking pain relief.  During parts of her evidence in chief, and in cross-examination, she had admitted that she had become addicted to pethidine; seeking that drug even when she had no abdominal pain.[19]

   [19]   T. p 124

3. However somewhat later in cross-examination, she explained that she had been confused when she had given that evidence, and denied that she had been addicted to pethidine at any time.[20]

   [20]   T. p 286

4. She explained that she would get angry, frustrated and depressed because medical practitioners had labelled her a drug addict; and had refused her pain relief even when she was actually in pain.

5. Eventually when cross-examined about the number of attendances upon medical practitioners detailed in the voluminous medical records, she conceded that indeed she had engaged in narcotic seeking behaviour until about 18 months before the subject accident.[21]

   [21]   T. p 363

6. The plaintiff had given birth to her younger daughter Jamey Lee in November 1987.  She had returned to work part-time in 1990, as a sewing machinist at Fletcher Jones, and finally a field hand at Yates Seeds.  She said that she had ceased work because of her abdominal pain; but continued to play competitive softball until the mid 1990’s.

7. She said that, apart from those occasions of severe abdominal pain, she was fine for most of the time – “quite happy and normal, happy with my life”.

8. The plaintiff said that in the 18 month period before the subject motor vehicle accident, her abdominal pain had become both less frequent and severe.  These abdominal problems would only arise “a couple of months” apart, and would last only a couple of days.  She ascribed her improved condition to hot baths, hydration, relaxation techniques and an altered diet.

9. The plaintiff said that at that time she was coping with the rebellious nature of her younger daughter Jamey Lee, and was “looking at” future employment as a hairdresser; in field work or in a coffee shop.

10. She recalled having:

    quite a bit of energy ….I spent a lot of time with my parents, renovating their home; painting, tiling, landscaping and gardening ….I was excited about my grandson, Craig ….I would drive up to Adelaide every six weeks or so for a weekend.[22]

    [22]   T. p 35-36

11. She explained, in chief that she would go, in that 18 month period, fishing and camping, attend family barbecues; perform gardening and housekeeping duties.  She said that she had built a “bridge and waterfall” in the back yard of her Housing Trust home.  She was cross-examined extensively about the number of times that she attended upon doctors and hospitals seeking pain relief in 2000 and 2001 before the accident.  She said that in 2000 she had extra stressors which included the temporary breakdown of her relationship with Mr Moore and problems with Jamey Lee.  It was at that time she was somewhat frail and had asked the Housing Trust for a house with flat ground access.  She maintained that in 2001 she was seeking pain relief on only about 3 or 4 occasions; and that even after the accident the attendances reduced, such that by 2004 she couldn’t remember another occasion.[23]  She admitted in cross-examination that she had had a recent occasion of abdominal pain at Nhill on 12 November 2007.[24]  She had undergone a right shoulder operation in early November 2001, and was given pethidine for pain relief.  She said that after six weeks she had no ongoing problem with her right shoulder.

    [23]   T. p 35 and p 105

    [24]   T. p 397

12. She said that following the accident she felt like she had been “beaten up”, with pain to the right side, the hip, arm and neck.  She said that she had a lot of “head pain”.[25]  She had cuts above the eye, and to both hips.  She had black plastic in and around her ears, head and face.  She had recurring headaches, dizziness; neck pain; right arm, hip and shin pain; and was continuously depressed.  She had nightmares and flashbacks about the accident.

    [25]   T. p 48

13. The plaintiff recalled crying all the time; becoming panicky and nervous and losing 5 or 6 kilograms in weight.  She said that before the accident she did not socialise much; but after the accident she did not socialise at all, nor did she go to the shops.[26]  She completely lost interest in life, and did not even care about her daughter Jamey Lee.

    [26]   T. p 59

14. The plaintiff spoke of her grief at her father’s loss which had continued until the trial.  She would visit his grave every day for about 2½ years, clinging to his photograph at all times.  She had told others of experiencing her father’s voice.  The circumstances of the accident were traumatic with the plaintiff seated beside her deceased father, and fearing for her own life or at least the risk of serious injury.

15. She spoke to Lifeline.  She wanted psychological help but couldn’t afford it.  By 2004 she and Mr Moore had decided to go on the road and eventually decided to settle in Queensland.  Her right hip hurt significantly, and over time she could only walk a few hundred metres to half a kilometre.  She denied telling Mr Awerbach in 2005 that she could walk 2 kms.  She said that there had been gradual improvement since mid 2006;[27] and considerable improvement in 2007.

    [27]   T. p 63-64

16. Her neck pain continues but has lessened since 2006.  Early on it was so bad that she couldn’t wash her hair or bend or lift.  She couldn’t do any housework.  She couldn’t remember any neck pain before the accident.[28]

    [28]   T. p 66

17. She explained that before the accident she and Mr Moore had a healthy sex life.  There was none in the first year after the accident, and it had remained only on an intermittent basis ever since.

18. Her back pain also improved in 2006.  She said that she had headaches constantly but that these also improved in 2006.  She had previously endured “flashbacks” all the time.  Since about 2006, she only did so on 2 or 3 times a week.  The plaintiff described the scar above her eyebrow which still can be seen.  She said that it still bothers her and makes her feel ugly.

19. She said that for many years since the accident, she would cry all the time – now it happens about 2 or 3 times a week.  She continually thinks of her father, and still grieves about his loss.  Contrary to the evidence of her aunt, Ms Norris, she said that she had done the cooking since about 2005, and her self esteem had improved in 2007.  She explained that she has been unable to look for work principally because of her depression.  Now she is considering improving her skills to undertake a small business course.  She hopes to find employment in managing Caravan Parks.[29]  She is willing to undergo psychological treatment to overcome her depression, and get out into the community.

    [29]   T. p 112

20. The plaintiff was cross-examined about her personal history.  She denied being assaulted by a rival in the escort business, or assaulted by her brother in 1994,[30]  despite to them references in the subpoenaed documents.  She denied that at any time had she been treated at the Warinilla Clinic for drug addiction.

    [30]   T. p 301

21. She conceded that she had failed to tell Dr Tottman about the detail of her pre-accident abdominal pain.

22. The plaintiff was asked whether she had obtained paid work while in Queensland.  She denied that she had.  It was put to her subsequently that she had in fact been employed by the “Daintree Secrets Bed and Breakfast” business.  Initially she denied that she had been paid, but subsequently admitted that she had.  Eventually an invoice dated 18 December 2006 was produced, which disclosed that she had worked 19.25 hours for housekeeping and stock take work at the rate of $15 per hour.  She explained that she had negotiated for the rate of $20 per hour but only if her performance was satisfactory.  She said that, in the event, it was unsatisfactory.

23. She said in re-examination that she had performed the stock taking component of the work, while Mr Moore had performed the bulk of the cleaning work.

    ·Ricky John Moore

24. The plaintiff’s partner, Mr Moore, had lived with the plaintiff since August 1994.

25. He said the plaintiff had suffered from pains in the stomach when he had first met her.  At their worst in 1997-1998 he described her as frail, anxious and depressed.  She did not wish to go out when she was that ill.[31]

    [31]   T. p 519

26. Those pains would occur several times a week; and if really bad, they could keep her in bed for three to four days.

27. He explained that when the pain was extreme she would attend upon various medical practitioners seeking pain relief.  He soon had the impression that she was being labelled as a drug addict.  They would both get frustrated and angry about being kept waiting at hospitals for hours.

28. Mr Moore said that these pain episodes did not occur all the time, and when she was not in pain, she was a “normal” person who had a good social life.

29. He said she would also get depressed if she was in pain or faced some family crisis, such as the rebellious conduct of her younger daughter Jamey Lee.[32]

    [32]   T. p 530

30. He said that in early 1999 it was suggested that the plaintiff be referred to the Flinders Medical Centre Pain Clinic.  The plaintiff’s condition had improved with consuming ice chips; the introduction of a non-spicy diet; meditation and general massage therapy.[33]  They decided to send Jamey Lee to Mount Gambier to live with her grandmother.  These changes were all designed to reduce the stress upon the plaintiff, and that over time, those alternative forms of treatment started to help her, such that the number of severe attacks was reduced.

    [33]   See Discharge Summary (6/7/99), Ex D7

31. He was cross-examined about the large number of attendances upon medical practitioners in 1999 and 2000.  He repeated that the severe nature of those attacks had reduced, but there were some other factors causing temporary set backs.  He agreed with the proposition “that the problems didn’t stop; we just knew how to control them better”.

32. He explained that in early 2000 he was in financial difficulty and had lost his car.  In April 2000, just before the plaintiff was at the Pain Clinic, he fell off his motor bike and had “broken his back”.  He and the plaintiff temporarily separated in July 2000.  He remained in Murray Bridge.  At that time she was attending hospitals for pain relief on a much reduced basis.  She was however still somewhat fragile at that time, and had sought a Housing Trust home which did not require her to climb stairs.

33. He said that they soon got back together again in Mount Gambier after a previous lease of premises in Murray Bridge had ended.  His injury had a positive effect on the plaintiff in that she had to do more work and look after him.

34. He said that during the period of 12 months before the subject accident the plaintiff’s stomach complaints reduced significantly, and the plaintiff became less depressed.  He said that apart from the stomach problems:

    we would go out to play pool, bush walking; fishing; general camping; parties (both 21^st and anniversaries) and weddings.  Normal, a normal social life we led, apart from her sickness episodes.[34]

    [34]   T. p 533

35. He said that during that time the plaintiff led a normal life – renovating her father’s kitchen and painting their own rental premises at Mount Gambier.  He said that at that time they discussed her resuming a career as a hairdresser or a return to Yates Seeds.[35]  He had resumed driving trucks notwithstanding his severe back pain.

    [35]   T. p 538

36. He explained that there was a set back in November 2000 when she dislocated her right shoulder.  This had the effect that she was unable to do heavy work or gardening work for a period.

37. He described how she appeared when he first saw her the day after the subject accident, as “very down, like an old woman …..who had been through a threshing machine”.  He said she was totally distraught, and continuously crying.

38. He described her complaints of nightmares, flashbacks, neck pain and headaches which have continued to the present, albeit on a reduced basis.  Their sexual life had been reduced to “almost nothing”.

39. He said that following the accident, the plaintiff cried constantly and lost interest in doing anything; indeed even looking after her daughter Jamey Lee.  In November 2001 she had undergone a successful reconstruction of her right shoulder, and had required pethidine for that pain.  He said that there were fewer attendances for abdominal pains.

40. He said that in addition to his driving work between the date of the accident and mid 2004, he was required to do the cooking, vacuuming, general housework, shopping, washing and gardening.  He also spent about 10 hours a week comforting and encouraging her.  He was cross-examined about the number of hours per week which he had said that he devoted to this voluntary assistance.  It appeared to total something near to 40 hours per week.  Mr Moore acknowledged that he was attempting a broad estimation only.  He said that it could not have totalled 40 hours per week but said that it did involve a lot of work.

41. He said that she had been in constant pain in her neck, back, and with headaches, until about June 2004 when they decided to leave Mount Gambier.  He distinguished her condition from the pre-existing abdominal pain, which had been occasional only.

42. They decided to travel and ultimately reside permanently in North Queensland, where they have no gardening to do, and they are generally assisted by the plaintiff’s aunt Patricia Norris.

43. He said that while they were on the road, and since living in Queensland, her condition had gradually improved, particularly from 2006.  He said that she has had few bouts of abdominal pain with only one in 2007 resulting in a trip to hospital.

44. He explained that the plaintiff has not been using pethidine; and has recently made contact with a business college to improve her computer skills.

45. He said that in 2006 she did some work for Daintree Secrets involving stocktaking; making beds; cleaning the showers and bathrooms over a 4 day period, and that he had helped her do that work.

    ·Jamie Lee Scholz

46. The plaintiff’s younger daughter, Ms Scholz, had been the subject of detailed evidence at the trial.  Her allegedly rebellious behaviour, particularly in Adelaide prior to April 2000, had been referred to in the plaintiff’s medical notes as a major source of stress to the plaintiff.

47. When she gave evidence, she conceded that she had been a “relatively rebellious child”; and that prior to returning to live in Mount Gambier in early 2000, had caused a great deal of stress to her mother.[36]

    [36]   T. p 639

48. When asked about her mother’s health in the lead up to the accident, she said that while the plaintiff had been sick on occasions, it was much less than prior to April 2000.  She explained that in the 18 month period before the subject accident:

    The plaintiff was very social.  She laughed and sang a lot.  She used to wake me up by singing and opening my blinds.  She was very content … she was motivated.  She wanted to go to barbecue, she wanted to go places and she wanted to help other people.[37]

    [37]   T. p 640-641

49. She conceded that her mother would occasionally feel a little bit intimidated with crowds even at the local supermarket.  Mr Scholz said that the plaintiff would go with her to the movies, and as a family they would go on camping trips.

50. The plaintiff had performed the majority of the housework in that 18-month period including the laundry; the vacuuming; the cooking and the cleaning.  Ms Scholz said that the plaintiff had undertaken a lot of gardening; and with the help of Mr Moore, had built a pergola; renovated and maintained a garden in their backyard; and had painted the kitchen at the plaintiff’s parent’s home.

51. Ms Scholz had accompanied her mother on a holiday by motor vehicle driven by the plaintiff to Queensland.

52. As to the first time she had seen the plaintiff after the accident, Ms Scholz said the plaintiff was “just a shell of herself”, with skin looking “older and sunken”.  She explained that she had seen the plaintiff sick with “tummy problems”, but her appearance after the accident was much worse.

53. Ms Scholz said that thereafter she had observed the plaintiff to cry “all the time”; complain of headaches; and that she lost interest in doing anything; whether it be domestic duties or looking after Ms Scholz.

54. Ms Scholz explained that the plaintiff became depressed:

    just very unsocial, very afraid to go outside or go anywhere.  She just wanted to sit and stare at the picture of Pop and stay there …. she wouldn’t even open the door to our friends.[38]

    [38]   T. p 658

55. She gave the examples of the plaintiff being unable to drive her to school because of an apparent panic attack; and “freaking out” when she was left on her own at a shopping centre.

56. She conceded that for part of the time before April 2000, she had been living with her grandparents and not with the plaintiff.

57. She said that as part of her rebellious behaviour she would “make up things” when speaking to counsellors and social workers.

58. She distinguished the plaintiff’s symptoms before and after the accident.  She compared the “slight anxiety” in socialising before the accident, with effectively “major anxiety” after the accident.  While she conceded that there were times before the accident that she was worried about the plaintiff’s health, she said that that for the most part she would recover quickly from a sickness event.

    ·Patricia Dawn Norris

59. The plaintiff’s aunt, Ms Norris, has resided in the isolated Daintree area of North Queensland since 1979.

60. She said that straight after the subject accident, she had spent two weeks caring for the plaintiff in Mount Gambier.

61. She described the plaintiff as being in shock and disorientated, with her face swollen.  She said the plaintiff had blood deposits around her ears, and red marks on her right hand side.  She explained that the plaintiff had held on to the photograph of her father; cried continuously; and complained about headaches and pain in the lower back.

62. She said that the plaintiff had resided with Mr Moore and herself in the Cooper Creek area of the Daintree since about 2005.  Ms Norris recalled that the plaintiff had looked much older than her age, and was emotionally flat when she first arrived.  She explained that over the last couple of years the plaintiff had only complained of headaches a few times, and she had simply used Panadol for relief.  Ms Norris said that there had been no improvement in the plaintiff’s depression.  She described her as an “emotional” cripple”,[39]  who seemed totally preoccupied with her father, and remains quiet and withdrawn.  She does little or no housework.

    [39]   T. p 481

63. Ms Norris said that she had arranged for a friend to give the plaintiff some work at Daintree Secrets.  That work involved stocktaking and cleaning the rooms.  She said that it didn’t work out because the plaintiff was too slow.

64. Ms Norris said that the plaintiff does not socialise, save for visiting Ms Norris’ daughter on a fortnightly shopping trip to Mossman.

65. She said that she has discussed the need for the plaintiff to get some professional psychiatric treatment, and that the plaintiff had agreed to undertake that treatment.

66. For a period of about eight months, the plaintiff and Mr Moore had resided independently of her at Cow Bay in Queensland.

    The expert witnesses

    ·Dr Thomas Klaveniek

67. He had been the plaintiff’s treating medical practitioner at Christies Beach for two periods; initially between 1997 and April 2000; and finally from 11 September 2001 until 22 August 2006 when she moved to Queensland.

1. He was therefore ideally placed to assess the plaintiff’s medical condition before and after the subject accident.  Dr Klaveniek said that he had been involved in the treatment of what he described as a “chronic pancreatitis disorder”, with ongoing issues of recurrent abdominal pain and the use of narcotics for pain relief.[40]

   [40]   T. p  214

2. In his initial report,[41] Dr Klaveniek had made no reference to any pre existing medical conditions; and was cross examined about each of the consultations with the plaintiff between 1997 and the date of the accident.

   [41]   14 April 2003 - Exhibit P4.4

3. Dr Klaveniek said that he had treated her for ongoing complaints of upper abdominal pain between 1997 and January 2000 when she was referred to the Pain Clinic at the Flinders Medical Centre.  He opined that she also suffered from depression which was reactive to her abdominal pain and other stressors.  He said that the plaintiff informed him of her perceived problems with her younger daughter and her relationship with her de facto Ricky Moore.  He said she was generally treated with intramuscular injections of narcotics.  Dr Klaveniek said that he had received correspondence from the SA Health Commission, and was aware of the risk of the plaintiff presenting with genuinely sounding symptoms while in truth narcotic seeking.

4. In the documents supplied by Dr Klaveniek to Centrelink in support of a Disability Pension in October 1999, he had expressed the view that the plaintiff would be unable to perform any work for about 2 years.

5. He said in evidence that as at April 2000 he felt that “perhaps there had been a slight improvement overall”,[42] in the complaints of abdominal pain.  As to the use of narcotics, Dr Klaveniek said that “it was intermittent at that time and [that he] had consciously reduced the amount of narcotics that she was receiving from [him]”.

   [42]   T. p 214 - 217

6. Dr Klaveniek had seen the plaintiff on 11 September 2001, the day following the accident; and on 1 October 2001.  He recorded her symptoms at that time as recurring headaches, dizziness, neck pain, right arm, hip and shin pain and that she was “greatly psychologically distressed”.  He noted residual bruising near the laceration to the right eyebrow; to her right elbow and her right knee.

7. He concluded that in the subject accident the plaintiff had aggravated mild pre existing degenerative changes in her cervical spine.  He accepted that she could not walk long distances because of continuous pain in her right hip; and noted the plaintiff’s complaints of ongoing nightmares; flashbacks; anxiety and increasing neck pain.

8. Dr Klaveniek was cross-examined about his expert report in which he had said that the plaintiff’s pre accident conditions had not been a major feature of her post accident presentations.  He had prescribed Pethidine following her right shoulder reconstruction on 7 November 2001.  He acknowledged having prescribed narcotics to the plaintiff, and that there had been complaints of abdominal pain on and after 1 August 2002.  He repeated that he was at all times conscious of the risk that the plaintiff may have been narcotic seeking. 

9. Dr Klaveniek noted some improvement from about December 2002 despite ongoing complaints of migraines; neck pain and right hip pain.  By 16 June 2004 he noted a reduced range of movement in the neck on examination.  He considered the possibility of Rheumatism.  Throughout 2005, and early 2006 the complaints of headaches, and neck and right hip pain remained consistent.  He noted that the plaintiff had reported feeling better on 22 August 2006, and that her weight had increased.  She still grieved for the loss of her father.  Dr Klaveniek maintained the opinions that he had expressed in his reports.  He assessed her physical injuries as a 5% loss; and her post traumatic stress disorder as a 15% loss of total body function.

   ·Dr Adrian Winsor

10. The Musculoskeletal Physician, Dr Adrian Winsor first examined the plaintiff soon after the accident on 14 September 2001.  In his report, Dr Winsor detailed the history of; inter alia, recurrent biliary dysfunction; her addiction to Pethidine; and her treatment at the Flinders Medical Centre Pain Management Unit.[43]  He noted that upon examination, there was local tenderness in the interscapular region over T3 to T7, minor restriction of the cervical range of movement and local tenderness in the right hip. 

    [43]   29/9/03 - Exhibit P17

11. Dr Winsor opined that “the plaintiff has suffered persistent and intrusive pain associated with movement and activity of her thoracic and cervical spine and right hip that has affected her ability to stand, walk and undertake domestic tasks; and her recreational activities” – and that these were consistent with soft tissue injuries affecting her thoracic spine and cervical spine, and symptoms of depression reactive to those injuries and/or post traumatic stress disorder.  He expected the symptoms to persist, but reduce in severity over time.  He assessed the plaintiff as suffering a 5% loss of function in each of the thoracic spine; cervical spine, and right hip; resulting in a combined loss of function of 15%.

    ·Dr Marek Litwin

12. The Rheumatologist Dr Marek Litwin first examined the plaintiff some 3 years after the accident on 10 June 2004.  In his reports,[44] Dr Litwin noted that the main complaints related to the cervical and upper thoracic spine; and the right lateral hip.  A change in the x-rays showed “considerable spondylosis or degenerative change at the mid and lower cervical levels”.  He noted upon examination that she was tender from C5 to T1 over the spinous processes.  While blood screens disclosed a positive rheumatoid factor, he could not find that the plaintiff was suffering from rheumatoid arthritis.  He assessed the plaintiff’s whole body impairment at 4%.

    ·Dr Mark Awerbuch

    [44]   12/7/04 and 5/2/05 - Exhibit P18

13. The Rheumatologist Dr Mark Awerbuch first examined the plaintiff on behalf of the defendant for medico/legal purposes on 20 June 2005.  In his reports,[45] Dr Awerbuch opined that the plaintiff did not suffer from rheumatoid arthritis.  He accepted that she would have received soft tissue injuries in an accident of that nature, such that she would have required home help for several weeks.

    [45]   23/6/05 and 14/2/08 - Exhibit D4.12

14. While he could find no objective evidence of any residual physical impairment, he acknowledged “the theoretical possibility that she might nevertheless experience a range of symptoms as a result of psychological sequelae”.

    ·Dr Philip Jumeau

15. The ENT Surgeon Dr Philip Jumeau first examined the plaintiff on 26 October 2005 in respect of the complaints of dizziness which allegedly commenced after the subject accident.  While he noted tenderness in the occipital region upon examination he was unable to establish the cause of her dizzy spells.

    ·Anne Morgan

16. The Occupational Therapist, Anne Morgan examined the plaintiff on 23 and 25 August 2006 and 1 August 2007.  She was unable to visit the plaintiff’s accommodation.  She tested the plaintiff’s physical capacity on two occasions, about 12 months apart.[46]

    [46]   See reports 19/10/06 - Exhibit P4.7 and 2/8/07 - Exhibit P19

17. She accepted the suggestion put in cross-examination that at the time of the second test in 2007, the plaintiff appeared less anxious and depressed.  Further, there was marked improvement in her fitness level.  Ms Morgan noted that it was “virtually impossible to determine the effect of the motor vehicle accident alone on her functioning, as it occurred on top of the complex medical history”.[47]

    [47]   Exhibit P4.7 at p 10

18. She assessed the plaintiff as having a reduced tolerance for standing or sitting for more than one hour; and for stooping, lateral reaching or reaching above shoulder level.

19. Ms Morgan opined that the plaintiff required a gym or hydrotherapy exercise program, twice a week for 6 to 8 weeks to build up limb strength.  She said that the plaintiff may then be able to tolerate more domestic chores, and reduce the need for future help.  It was, she said, reasonable for the plaintiff to continue in a gym program for 6 to 12 months, on an ongoing maintenance basis.

20. Ms Morgan acknowledged that such programs were unlikely to be employed by the plaintiff because of her lifestyle choices in Northern Queensland.

21. She concluded that the plaintiff’s capacity to work was restricted by fatigue.  If she were required to work on even a part-time basis, the consequence would be a reduction in her capacity to manage daily and domestic duties.

22. Mr Livesey QC tested Ms Morgan’s understanding of the plaintiff’s pre-accident capacity.  She conceded that a person with biliary dysfunction, and a narcotic addition, who had not worked for 10 years would be at a great disadvantage on the labour market.  She contrasted the position of the plaintiff being capable of work in between the incidents of pre-accident illness, with the permanent nature of the physical disabilities suffered in the subject accident.

23. She concluded that the plaintiff was capable of only “occasional” work in a “light category”.  Given the requirements of constant standing and handling stock, the plaintiff could not, on either assessment, perform the work of a hairdresser on a full time basis.

24. She did however expect further improvement in her physical functions if the plaintiff’s psychological state improved.

    ·Mr Mark Reid

25. The neurologist Mr Mark Reid examined the plaintiff on 14 November 2005 and 31 July 2007.[48] 

    [48]   Reports 15/11/05 and 2/8/07 - Exhibit P19 and notes  - Exhibit P20

26. In his report of 15 November 2005 Mr Reid concluded that the plaintiff had developed symptoms of a Post Traumatic Street disorder and of a Major Depressive Disorder over the two year period following the accident.  This was further compounded by a lack of support from her family who had blamed her for her father’s death.

27. He noted that by July 2007 the plaintiff had experienced a reduction in her symptoms including the Post Traumatic Stress Disorder over an 18 month period.

28. She had improved to a level of contemplating part-time work involving the use of a computer. 

29. Mr Reid was critical of the lack of appropriate treatment which has delayed the plaintiff’s recovery, however is of the opinion that she will continue to improve over time.

    ·Oenone Kirkby

30. The Psychologist, Oenone Kirkby was consulted by the plaintiff once in 2002; on four occasions in 2005 and twice in 2007.[49]

    [49]   Reports 18/8/05 - Exhibit P4.9 and 1/8/07 - Exhibit P4.10

31. Ms Kirkby had not sought from the plaintiff any psychological history predating the subject accident, nor had she read the historical medical records of the plaintiff.

32. She was of the opinion that you could not divide up the cause of emotional distress into categories. 

33. She accepted that if symptoms of anxiety and depression were reactive to a physical condition, and that underlying physical condition was “alleviated”, then the patient could expect some lessening of the symptoms of anxiety and depression.

34. She diagnosed the plaintiff in 2005 as having a Major Depressive Disorder with symptoms consistent with post traumatic stress.  She recommended the funding necessary for the plaintiff to continue psychological counselling.  She was only permitted 5 counselling sessions with Ms Kirkby.

35. By 2007 she had varied her diagnosis to include a Post Traumatic Stress Disorder.

36. She noted that the plaintiff’s condition had improved and her prognosis was generally good.  She maintained however that the plaintiff still required psychological counselling.

    ·Dr Vance Tottman

37. The Consultant Psychiatrist, Dr Vance Tottman first assessed the plaintiff on 14 November 2005.

38. He had no doubt that the plaintiff has suffered from chronic Post Traumatic Stress Disorder.  Each of the four criteria of that disorder were satisfied.  In particular the nature of the accident involving the death of her father; and the quite intense fear, helplessness and horror she genuinely felt, satisfied the first criteria overwhelmingly.

39. He also concurred in the view of Ms Kirkby that the plaintiff additionally had a Major Depressive disorder.

40. He opined that the major depressive disorder was brought about by the death of her father coupled with the feelings of rejection and blame directed to the plaintiff by members of her immediate family.  In his first report[50] Dr Tottman recommended appropriate antidepressant medication, and consultations with a consultant psychiatrist every month or two for 12 months.  He assessed the overall cost of such attendances at $1,000 - $2,000 and medication at $28 per month for 2 – 3 years.

    [50]   Dr Tottman ultimately provided 4 reports; 22/11/05 - Exhibit P4.1; 29/8/06 - Exhibit P4.2; notes 3/8/07 - Exhibit P4.3; and final report 27/8/07 - Exhibit P4.4

41. He examined her again on 25/8/06, and concluded that the Post Traumatic Stress Disorder had settled, and was no longer overwhelming.

42. In answer to the opinion expressed by the psychiatrist Professor Goldney that only one third of her current presentation ought be attributed to the subject accident, one third to her family’s rejection of her; and one third to factors, some of which predate the accident; Dr Tottman said one could not be so specific as to apportion causes.  He said that all of these traumatic factors in her life “intermingle – indeed compound”.[51]

    [51]   T. pp 171 - 173

43. When cross-examined Dr Tottman said that it was quite reasonable to expect her psychological condition to settle within 6 to 12 months of the trial.

44. When the plaintiff’s complex medical history was disclosed to him,[52]  Dr Tottman said that it was reasonable to conclude that the plaintiff’s biliary dysfunction would not have resolved itself in an 18 month period to the date of the subject accident.  He agreed that if indeed the plaintiff had severe symptoms of biliary dysfunction; pethidine addiction; combined with agoraphobia and anxiety then she would at that time have had no capacity for work.  He said further that it was necessary to examine the full history of the plaintiff, and not individual events or complaints in isolation.  Factors of importance include whether the plaintiff had been able to wean herself off narcotic analgesics, and there had been a lessening of her biliary pain.

    [52]   T. pp 189-190

45. Dr Tottman had reviewed the voluminous subpoenaed medical records; and further consulted the plaintiff; after which he continued his evidence.  He repeated that the plaintiff suffered from both a Post Traumatic Stress Disorder and a Major Depressive Disorder, the latter being contributed to by the Post Traumatic Stress Disorder, the adverse reaction from her family and the pathological grief of the plaintiff.

46. He said as a general proposition that “any interference with function after 6 months would be due to the Post Traumatic Stress Disorder or the pathological grief”.[53]  When cross-examined Dr Tottman was reminded of his third report in which he expressed the opinion that the Post Traumatic Stress Disorder did not impinge significantly for more than several months after the motor vehicle accident.  Dr Tottman noted that the plaintiff was still having flashbacks of the nature of seeing her father smiling at her.  He repeated that it was not realistic to attempt to disentangle the factors giving rise to the ongoing depression.  He described the plaintiff’s grieving as “intense mourning ….. it is pathological grief which is very debilitating, the plaintiff’s whole life is very much curtailed, and is not able to function in a normal sort of way ….”.

    [53]   T. p 752-753

47. Dr Tottman was critical of the lack of detail in the subpoenaed pre-accident medical notes, as to whether the narcotic medication was given intravenously, or orally; and the strength of the same.  He expressed the opinion that the attendances between April 2000 and the date of the subject accident were “not an issue of biliary dyskineria”.  Further, the fact that she did not present at all between January 2001 and 28 May 2001 was inconsistent with narcotic addiction.

48. Dr Tottman did however accept that the plaintiff had grossly understated the number of her attendances seeking pain relief for her stomach problems both before and after the subject accident, even after he had warned her “to tell him the absolute truth”.[54]

    ·Professor Robert Goldney

    [54]   T. p 770

49. Professor Robert Goldney was called by the defendant to give evidence.  He had prepared two reports.[55] 

    [55]   29/8/06 and 17/8/07- Exhibit D4.11

50. He was critical of the failure by Ms Kirkby to obtain a detailed pre-accident  psychological history from the plaintiff.  He described the plaintiff’s pre-accident condition, as outlined in the medical notes, as:[56]

    When one looks at the symptoms there is a constellation of symptoms.  There are symptoms of anxiety, depression, panic, not wishing to go out.  There are also some actual bodily symptoms.  Now, if one tries to explain one particular condition – I think it is almost certainly an anxiety disorder, then you get into the dilemma of what specific sort of anxiety disorder and it is probably an agoraphobic condition … there are periods in a person’s life when everything is going okay in their personal life when the symptoms will be pretty much in abeyance, but one will be pretty much confident that they are likely to reoccur at various times in her life.

    He expressed the opinion that the plaintiff had not recovered from the “constellation” of symptoms, prior to the subject accident, and she was not fit for work at that time.

    [56]   T. p 780

51. He broadly agreed with the proposition that the post traumatic stress symptoms would begin to subside after several months following the accident but thereafter, her depression was related to her intense mourning added to by the response of her family members.

52. He expressed the view that the plaintiff’s pre-existing depression made her more vulnerable than someone not so predisposed; leading to greater consequences for the plaintiff.

53. He explained that she would have benefitted from treatment after the accident.  She might subsequently wonder why there was a need to go to a psychiatrist.[57]  He thought it was unlikely that the plaintiff could have quickly recovered from a long history of narcotic dependency.

    [57]   T. p 785

54. When cross-examined by Mr Krupka, counsel for the plaintiff, he conceded that he did not seek to re-examine the plaintiff after he had reviewed the voluminous medical records.  He had examined her for the first time on 24 August 2006.  In his report Professor Goldney had concurred in the respective diagnosis of Post Traumatic Stress Disorder and additionally a significant depressive condition.

55. He was of the view that on her presentation to him at that time, she is capable of undertaking study for a course in small business.  He noted that she still had “significant symptoms of ongoing emotional distress, although by no means totally disabling”.

56. He assessed her overall emotional disability as 20%, with one third related to the subject accident; one third to the reaction of her family and the other third to other life stressors.

57. Professor Goldney conceded that he was in a less advantageous position in first examining the plaintiff some five years after the accident.  His opinions were based upon his assessment of the data contained in the voluminous medical records.  He could not accept the proposition that the data had in fact shown a lessening of biliary dysfunction symptoms and narcotic seeking behaviour in the lead up to the accident, consistent with an overall improvement.

58. Professor Goldney conceded that he ignored the observations of the plaintiff’s partner and daughter as to the plaintiff allegedly performing the majority of the pre-accident house work, as inconsistent with his construction of the data in the medical notes.[58]

    [58]   T. p 801-802

59. He accepted that the worse her psychiatric state before the accident the greater her potential vulnerability for further psychiatric insult from distressing events such as the subject accident.  He further accepted that such a disorder may cause tension headaches; neck pain; nightmares and flashbacks.[59]  It can further result in symptoms of depression and agoraphobia.[60]

    [59]   T. p 803

    [60]   T. p 805

1. Patricia Dawn Norris presented as an extremely caring person who had lived a stress free existence in North Queensland, and had attempted to provide a similar lifestyle to the plaintiff.  I was favourably impressed by her as a witness of truth.  While she had a tendency to use emotive language to describe the plaintiff’s depression and to suggest that there had been little improvement in that condition, I accept that she was attempting to accurately relate her impression of the plaintiff’s health particularly since 2005.

2. Save therefore for the reservations I have expressed about the plaintiff in particular; I accept that the lay witnesses who gave evidence were truthful and did their best to accurately recall and relate the events about which they were called to give evidence.

3. All of the medical witnesses gave their evidence in an objective and impartial manner.  I have referred to the criticism by Professor Goldney as to the failure of Ms Kirkby to take a detailed history from the plaintiff.  Ultimately I have preferred the respective evidence of Dr Tottman and Professor Goldney to that of Ms Kirkby for that reason.

4. Professor Goldney was also critical of the continued prescribing of narcotics by Dr Klaveniek.  I do not accept that criticism.  In my opinion Dr Klaveniek was faced with a history of severe abdominal pain, and he treated that condition appropriately in light of that history.  He had treated her between 1997 and 2000, at which time he had referred the plaintiff to the Flinders Medical Centre Pain Clinic.  During that three year period the plaintiff had undergone various medical procedures.[73]

   [73]   Discharge Summary 6/7/99 -  Exhibit D7

5. Although the respective counsel concentrated their submissions upon some asserted differences in opinion as between the expert psychiatrists Dr Tottman on the one hand and Professor Goldney on the other, in my opinion any such differences were minor.

6. One such issue was whether it was possible to disentangle and apportion the factors contributing to the plaintiff’s major depressive illness following the subject accident.  On that issue, I prefer the evidence of Dr Tottman supported as it was by the evidence of the plaintiff’s general practitioner Dr Klavenek.  Dr Tottman had explained that all of the traumatic factors in the plaintiff’s life had intermingled and compounded.  I prefer their opinions to that of Professor Goldney because of their more detailed involvement with the plaintiff.  However that difference in opinion is ultimately of no significance in the assessment.  While Professor Goldney, in his report of 29 August 2006 apportioned one third of the plaintiff’s emotional disability to the subject accident, one third to the reaction of her family and the other third to other life stressors I took him to speak in a general sense about the factors which came to bear upon the plaintiff following the accident.  He certainly was not purporting to offer an opinion on the “ultimate issues” which are for this court to determine.

7. Further he was not discussing the relevance, at law, of the plaintiff’s pre-existing condition, and her vulnerability to increasing those depressive symptoms from, as occurred here, a subsequent major distressing event.

8. Dr Klaveniek was the only practitioner who was called to give evidence who had treated the plaintiff both before and after the accident.  In Dr Tottman’s case he had not only consulted the plaintiff twice before trial but had consulted her on a number of occasions after receipt of the subpoenaed documents.  By contrast Professor Goldney first saw the plaintiff many years after the accident.  He relied thereafter upon the subpoenaed documents and ignored the statements of the family witnesses, whom I have generally accepted as witnesses of truth.  It was perhaps unfortunate, in hindsight, that Professor Goldney did not interview the plaintiff following the receipt of the subpoenaed documents, so that some of the cryptic notes could be explained. 

9. I also accept Dr Tottman’s opinion that, the plaintiff was not suffering from an addiction to narcotics in early 2001 nor, by inference, thereafter. Quite apart from Dr Tottman’s assessment of the contemporaneous medical notes, it is apparent, at least since 2004, that there has been no narcotic seeking behaviour.

   ·Findings as to the pre-accident disabilities

10. I turn first to the plaintiff’s pre-accident medical condition and her level of functioning.

11. I have already detailed in the chronology the history of the plaintiff’s biliary dysfunction which had first manifested itself with severe pain in her abdomen in 1984.

12. Despite that early pain and her subsequent narcotic seeking behaviour, the plaintiff continued to work part-time in various forms of employment including shifting irrigation pipes for Yates Seed Company, until 1990.[74]

    [74]   Indeed it seems that she worked as an escort in 1993-1994

13. The plaintiff’s attendances for pain relief after the birth of her younger daughter in 1987 fluctuated considerably.  They increased to major proportions from 1997 to early 2000, when there were other major stressors including her deteriorating relationships with her partner and her daughter.

14. There are differing opinions as to the precise diagnosis of the “biliary dysfunction”, however it is clear that over this period the plaintiff suffered from a combination of physical pain; narcotic seeking behaviour and a form of reactive depression.  The symptoms of that depression included panic attacks; agoraphobia; an anxiety condition and feeling of low self-esteem.

15. I have no doubt that when those symptoms were at their most severe, in the period 1997 to early 2000, the plaintiff was not only incapable of any remunerative employment, but was effectively unable to perform her daily tasks because of pain and vomiting.  Further in 2000 I accept that she was somewhat frail, when she sought from the Housing Trust, a house with no stairs.  This severe episode coincided with the injuries suffered by Mr Moore in an accident, and their interim separation.

16. I have reflected very carefully upon the evidence of an alleged improvement in the plaintiff’s condition in the 18 month period leading to the subject accident.

17. I accept the evidence of the respective medical experts that there was no miracle cure for this dysfunction.  I do not accept the submission that the plaintiff’s depressive condition was under control prior to the subject accident.

18. While the release of stress would reduce the severity of the symptoms, the underlying dysfunction continued.  I do however find that in the 12 month period before the accident there was a lessening of symptoms consistent with the objective evidence that between 22 January 2001, and 28 May 2001 there were no attendances upon medical practitioners seeking pain relief.

19. I accept the evidence of Mr Moore, and Ms Scholz that during that 12 month period, the plaintiff’s condition was better managed.  I further accept that in between bouts of illness, the plaintiff would lead a relatively normal existence; bush walking, general camping, attending the movies, socialising within a narrow group of family and friends, and performing general gardening and housekeeping duties. 

20. In light of the fact that Mr Moore had suffered his own serious back injury in April 2000, I accept that the plaintiff did the bulk of housework, some shopping, driving her daughter to school, and some gardening during that 12-month period.  While the plaintiff assisted to some degree in the renovation of her parent’s kitchen, I am of the opinion that she overstated her role in that work and the pergola and other work performed at her house. 

21. The fact remains that the plaintiff continued to have instances of severe pain or narcotic seeking behaviour between June and late August 2001; and in 2002 to 2004 following the subject accident. 

22. The plaintiff had not been engaged in any remunerative employment for a little over 10 years at the time of the accident.  I find that, even with the improvement in her condition, the combination of her shoulder injury, her biliary dysfunction and her depression, the plaintiff was not, irrespective of the accident, capable of performing any remunerative work, as at the date of the accident, nor until the end of 2003 at the least.  

23. I accept that the number of biliary attacks did lessen considerably such that after mid 2004 they were a rare occurrence.  This confirms the plaintiff’s evidence of improvement in her condition in consequence of alternative relief measures, and tends to disprove the suggestion that the plaintiff’s pre-accident condition was permanent.

24. The plaintiff was at the time of the accident in receipt of a Disability Pension and Supporting Person’s Benefit.  I do not accept however that, merely because she had no capacity at that time, the plaintiff would have been unable to engage in remunerative employment in the future.  Her tumultuous life in Adelaide had to change.  She moved to Mount Gambier.  But for the accident that she would probably have attempted a return to the workforce, in early 2004, in some restricted capacity.  I accept also that she would have continued to perform an increasing amount of housework as the number of biliary attacks lessened; and the other stressors including her relationships with her partner and daughter ceased to be of significance.

25. I do not accept that she would have been capable of returning to hairdressing because her pre-accident condition made her an unreliable employee in a stressful environment.  It is however probable that by the end of 2003, during which she had had only one attendance for abdominal pain, the plaintiff would have been able to undertake on a gradual basis some of cleaning duties offered to her eventually at Daintree Secrets.  I appreciate that she had more attendances in 2004.  It is obvious that in any assessment of past loss of earning capacity, a significant allowance must be made for adverse contingencies.  One was her difficulty in associating with persons outside her family circle.  This may have been more easily accommodated with work as a cleaner however it remained a problem for the plaintiff.  Further any increase in the number of hours eventually worked by the plaintiff, the greater was the risk of stress and consequential abdominal pain, irrespective of the accident.

    The effect of the subject accident

26. The expert psychiatrists and the respective counsel understandably concentrated upon her persistent psychological condition.  The plaintiff also suffered soft tissue injuries to the cervical and thoracic spine and to her right hip.  Those injuries were quite debilitating irrespective of whether they were organically or psychologically based.  I do not accept that they were symptoms of the plaintiff’s pre-accident depression, nor symptoms of “narcotic seeking behaviour presented as genuine sounding symptoms”.  I accept that the plaintiff was unable to walk long distances because of the right hip injury.

27. The neck, back and hip pain, and consequential headaches started to improve in about 2006 to 2007.

28. In my opinion the effect of the subject accident was to overwhelm the plaintiff.  It aggravated the pre-existing condition; which was compounded by the plaintiff’s “profound” grief; the abnormal response from her family, and the immediate effects of the Post Traumatic Stress Disorder she had sustained in consequence of the violent fatal accident and its immediate aftermath.

29. I accept the description of the plaintiff’s presentation, post the accident, given generally by the lay witnesses including her aunt Ms Norris.  The plaintiff effectively gave up on life particularly in the two year period after the accident. While she did not go out much before the accident, she did not go out at all after it.

30. There can be no doubt that the plaintiff sustained a major depressive disorder. The contributing factors to that disorder were, inter alia, her predisposition or vulnerability to greater levels of depression because of her pre-accident reactive depression; the post traumatic stress disorder; her profound grief at the loss of her father, and the other stressors which included her family’s unreasonable reaction to her father’s death.  I accept that the symptoms from the Post Traumatic Stress Disorder did dissipate quite quickly in the months following the accident.  I do not accept the submission that the plaintiff’s pre-accident condition was so idiosyncratic that it should render it as remote, far-fetched or fanciful.  The defendant must take the plaintiff as he found her.  Further I have no doubt, and I accept Dr Tottman’s evidence in that respect, that the plaintiff’s grief is not “normal” but is “profound” grief contributing to her overall persistent psychiatric condition.  It is accordingly a compensable component of the plaintiff’s post-accident condition.

31. In my opinion, while the contribution of the family’s adverse reaction to her overall condition was indeed significant immediately following the accident, there can be little doubt that by mid 2004, when the plaintiff left Mt Gambier, it ceased to have any significant effect.  I do not accept the opinion of Professor Goldney that in some way, artificially in my view, one can ascribe on a percentage basis, the contribution of the plaintiff’s pre-existing condition; and the abnormal response of the family to the plaintiff’s post-accident condition.

32. It is clear that in assessing damages I ought properly allow an appropriate discount for those periods of time during which the symptoms of the plaintiff’s pre-existing disorder might have prevented the plaintiff from engaging in remunerative employment.[75]  In this case I have already found that the plaintiff could not have engaged in remunerative employment until the end of 2003 irrespective of the accident.  I have also found that the effects of the family’s abnormal reaction had dissipated by about the same time.  Accordingly I do not need to resolve the vexed question as to whether the family’s abnormal reaction was too remote.  If I were required to so do, I would respectfully adopt the reasoning of McHugh JA in Nader’s case and conclude that the family’s adverse reaction, was reasonably foreseeable, and not too remote.

    [75]   See City of Brimbank v Halilovic, supra, at [26]

33. I find that the symptoms of the plaintiff’s pre-accident condition started to lessen significantly after mid 2004, and that the plaintiff’s physical injuries sustained in the accident generally resolved in 2006 and 2007.  I find that she will always continue to suffer from emotional distress in the future even though it will gradually lessen in intensity.

    Damages and orders

34. The award of damages is regulated by the provisions of s 35A of the Wrongs Act 1936, as it applied as at the date of the subject accident.  I turn to the award of damages under the different heads.

35. I approach the award on the basis that but for the accident the plaintiff would have been unable to engage in any remunerative employment until at least the end of 2003.  Thereafter while the plaintiff could have engaged in remunerative employment, it would have been on a part time basis in a low stress area.  She would have faced significant contingencies in maintaining her employment because of her pre-accident condition.  The effect of the accident is that the plaintiff has for the most part, lost the opportunity to find remunerative employment because of her increased level of depression and her even longer absence from the workforce.  The plaintiff’s post accident condition is largely attributable to the subject accident but partially attributable to the pre-existing condition.

    Non-economic loss

36. I find that the plaintiff’s ability to lead a normal life was significantly impaired by the injuries suffered in the subject accident for a period of more than seven days, pursuant to s 35A(1)(a) thereof.  The plaintiff has satisfied the pre-requisites to claim mental or nervous shock pursuant to s 35A(1)(c), by being a passenger in the motor vehicle.  The plaintiff’s injuries were most significant, with some of her symptoms having persisted now for about 8½ years since the accident.  They include the permanent adverse cosmetic effect of the scar above her eye; the pain and restriction in movement of her right hip; the adverse effect upon the sex life of the plaintiff and her partner; the severe neck pain and headaches; the flashbacks and nightmares, and her profound grief and depression. 

37. It is not an overstatement to conclude that her life was fundamentally changed by the accident.  Mr Krupka submitted I ought not reduce the award to allow for the non-compensable “normal grief” component, as that issue was essentially disposed of by the High Court in Tame v NSW. I adopt and apply the principles expressed in Pham v Lawson, supra, by Lander J.  In my opinion that principle was not disturbed by the High Court decision in Tame v NSW.  I respectfully agree with his Honour as to the artificiality of arriving at such a reduction.  In assigning a numerical value to calculate the damages to be awarded for non-economic loss, I will allow for the relatively short period of normal grief that Dr Tottman would have expected.[76]  The plaintiff’s counsel submitted that “no amount of money can compensate the plaintiff for her suffering.  Arguably, this is worse to her than becoming a paraplegic”.  While the plaintiff’s loss is significant I do not accept that submission.  As is plain the plaintiff’s amenity of life has improved markedly since 2006; albeit that her prognosis for a full recovery is guarded.

    [76]   T. pp 189-190; and T. p 816

38. The plaintiff is now aged 49 years.  She has suffered for some 8½ years since the accident.  She will continue to suffer some emotional distress gradually reducing in the future.

39. I assign a value of 18, on the scale from 0 to 60, which allows for the reduction of the “normal” grief component.  The prescribed multiplier for a 2001 motor vehicle accident is 1,680.  Accordingly the award of damages on this head is $30, 240.

    Past Loss of earning capacity

40. The plaintiff had not been in remunerative employment for about 10 years before the subject accident.  She had left school in Year 9, and apart from a relatively short period as a hairdresser had been employed in part time principally as a sewing machinist or field hand.  She had since 1990 been in receipt initially of a supporting parents benefit and subsequently a Disability Pension.

41. While the plaintiff is entitled to be compensated on a net basis for her loss of earning capacity rather than her lost income, that loss of earning capacity will not be recoverable unless it is or will be productive of financial loss.[77]

    [77]   Medlin v SGIC (1985) 182 CLR 1 at and 16, Husher v Husher (1997) 197 CLR 138 at 143; and Graham v Baker (1961) 106 CLR 340 at 347

42. The plaintiff was aged nearly 41 years at the date of the accident.  As I have found, she simply was in no position to perform any remunerative work as at the date of the accident or for at least 2 years thereafter because of her pre-accident biliary dysfunction.

43. The plaintiff’s counsel submitted that it was reasonable to have expected that the plaintiff could have worked as a part-time hairdresser or cleaner from an early 2002.  As I have indicated, I do not accept the basis of that submission.

44. I also do not accept the defendant’s submissions that the plaintiff had no residual earning capacity at any time.  I accept that from late 2003 the plaintiff’s biliary dysfunction symptoms had significantly reduced, despite a blimp in 2004.

45. Given the plaintiff’s employment history and the dearth of evidence of comparable wages, the plaintiff’s counsel provided a schedule based upon an asserted capacity to work for 10 to 20 hours a week at the legislated minimum wage.

46. In December 2006 the plaintiff agreed to undertake cleaning and stocktaking duties for Daintree Secrets.  She was paid at the rate of $15 per hour for 19.25 hours.  That rate is similar to the legislated rate employed by the plaintiff’s counsel in his “indicative” schedule of loss.  There is no need to set out that schedule in these reasons.  It has, inbuilt, an adverse contingency by the very fact it is the minimum wage.

1. In my opinion any attempted mathematical approach at an assessment in this case is too speculative and indeed artificial in the extreme.  To fix a figure at large and then attempt a deduction for the numerous adverse contingencies would be a futile exercise.  I am limited to taking a broad axe approach to the assessment of damages in a case with so many adverse contingencies.[78]

   [78]   Arthur Robinson v Carter (1968) 122 CLR 649

2. In general I would assess on the basis that the plaintiff had no earning capacity productive of financial loss in 2001, 2002 and 2003.  I have already referred to the plaintiff’s age, and her long absence from remunerative employment.  I also accept the evidence of Ms Morgan to the effect that a person with the pre-accident disabilities of the plaintiff, who had not worked for 10 years would be at a great disadvantage on the open labour market, irrespective of the subject accident.  The plaintiff’s schedule was based on 10 and 20 hours per week as a cleaner.  There is no doubt that the plaintiff’s pre-accident condition would have restricted the number of hours to the minimum at least until 2006.  As I have said there are a significant number of adverse contingencies including her pre-existing agoraphobia, and her vulnerability to stress which must be factored into the assessment.

3. Doing the best I can to assess this head of loss on a “loss of a chance basis” over the period since late 2003, and weighing in the contingencies to which I have referred, I fix a net loss of $30,000 from which must be deducted the net sum of $288.75 received by the plaintiff from Daintree Secrets.[79]

   [79]   Carson v Knott [1999] SASC 71

4. I award the net sum of $29,711.25 in respect of this head of damage.

   Past Superannuation

5. The plaintiff is entitled to an award for the loss of a chance to obtain past superannuation entitlements.

6. There was a dearth of evidence as to the quantum of that “entitlement”.  There is no justification for an award greater than the legislated employer contribution of 9%, whether it be on the basis of an asserted potential “increase in the fund” or otherwise.  There was no evidence tendered as to such an increase; and recent events would tend to suggest otherwise.

7. I fix the sum rounded up to $2,700 under this head of damage.

   Future loss of earning capacity

8. Counsel for the plaintiff submitted that the assessment under this head ought be based upon a notional retirement age of 65 years.  He submitted that the plaintiff now has little or no residual earning capacity in consequence of the subject accident.  It will be more difficult for her to obtain remunerative employment in the Daintree area of Queensland.  It was not unreasonable for her to move there, because the stress free environment has played a significant role in her improved health.

9. Many of the factors submitted in support of the plaintiff’s suggested approach, namely being out of the work force for so long; the history of post-accident psychiatric injuries and their impact on motivation and reliability apply, albeit to a lesser degree, to her pre-accident capacity.

10. Senior counsel for the defendant repeated the significant contingencies facing the plaintiff irrespective of the accident.  He submitted that, in contrast to the past loss of earning capacity, which is now a known fact, the plaintiff’s future loss of earning capacity is even more constrained by contingencies.  The court is required “take into account a range of possibilities broader in their extent than those which influence a discount for past losses.  These include ill health; accidents, changes in industrial climate and the “mere daily vicissitudes” which afflict all persons.[80]

    [80]   City of Brimbank v Halilovic, supra at [26], Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659

11. The plaintiff’s counsel submitted that I ought apply the appropriate multiplier of a female aged 49 years to age 65 years at the rate of a cleaner paid $16.49 per hour.

12. For the reasons I have expressed in respect of the past loss of earning capacity, the approach submitted by the plaintiff is artificial.  I further do not accept the suggested retirement age of 65 is a reasonable estimate for a plaintiff with her pre-accident disabilities.[81]

    [81]   cf. Medlin v SGIC (1995) 182 CLR 1

13. Anne Morgan had noted an improvement in the plaintiff’s physical condition in August 2007.  I accept that the plaintiff’s future is now somewhat brighter.

14. As it transpired, and unknown to her at the time, the plaintiff had performed some light work at Daintree Secrets.  Notwithstanding the rather pessimistic assessment of “occasional” work in a “light” category, I am of the opinion that the plaintiff will be in a better position to pursue part time employment in the nature of a cleaner after the end of this litigation as suggested by Dr Tottman.

15. Having again come to the view that the appropriate basis for assessment is to award a lump sum on a loss of a chance basis, and taking account of all of the contingencies to which I have referred I award the net sum of $35,000 on this head of damage.

    Future loss of Superannuation

16. The plaintiff is entitled to an award for this future loss.  I again assess the loss at the rate of 9%.  I award the plaintiff the sum of $3,150.

    Voluntary Assistance

17. Section 35A(1) limits the award to services provided by, in this case, the spouse or child of the plaintiff, and that recompense shall not exceed four times the state average weekly earnings.  There is little or no evidence of any assistance from the plaintiff’s daughters.  The assistance provided by the plaintiff’s aunt Ms Norris does not attract an award of damages.  The only assistance which would attract such an award is that provided by the plaintiff’s partner Mr Moore.

18. Section 35A(2) permits an award of damages for voluntary services in excess of the limit where the court is satisfied that here relevantly a spouse, has saved or will save the plaintiff the cost of engaging another person to provide those services.  The plaintiff could not afford psychological help beyond the limited number of attendances upon Ms Kirkby.  She was unable to attend to domestic duties at all, for about 12 months after the accident.

19. There was some evidence of the appropriate commercial rates from the reports of Anne Morgan.[82]

    [82]   See Van Gervan v Fenton (1992) 175 CLR 327

20. The plaintiff prepared a schedule applying indicative rates for the large number of hours deposed to by Mr Moore.  That schedule is based upon Mr Moore having performed about 23 hours a week of domestic duties, emotional support and massages over the 117 weeks at Mt Gambier, and at fewer times on the road, and in Queensland.  As I have previously found I do not accept that all of those hours were so performed by him.  I accept that he did “a lot” for the plaintiff soon after the accident.  The fact remains that, while at Mt Gambier, Mr Moore was suffering the effects of his 2000 motor cycle accident, and then returned to his occupation as a driver.

21. I readily accept that a court should not under compensate a plaintiff where “a lot” of care had been given particularly, in Mt Gambier in the first 12 months.

22. Doing the best I can with the limited evidence I have, I adopt a broad axe approach and will award the plaintiff a portion only of the sums claimed for the domestic duties, gardening, emotional support and massages.  I fix the sum of $7,000 for past voluntary services.

    Future care

23. Anne Morgan had not inspected the plaintiff’s Queensland premises.  They were markedly different from Mt Gambier with little requirement for gardening.  I have already referred to the plaintiff’s improvement since August 2006.  I am not satisfied on the evidence that there is a significant need for future care and I make a small award of $500 on a broad axe approach.

    Special Damages

24. As I have noted there was no agreement between the parties as to the special damages.  The aide memoire disclosed a total of $3,859.50 of which $708.70 had been paid by the defendant, $2,064.20 had been paid by HIC; and $1,086.60 had been paid by the plaintiff.

25. The defendant was prepared to agree as to the quantum only, those items on the schedule totalling $1,823.90.

26. That latter sum had included the major payment by the plaintiff of $996.45 for travel to medical appointments.

27. I have considered in detail all of the items in the schedule.  Apart from minor amounts for medication, and the previously mentioned travel claim, all of the items relate to attendances upon medical practitioners, a chiropractor and procedures ordered by them.  It was not suggested that the various treatments were unreasonable.  In my opinion they were all reasonable and necessary.  I also accept that the travel claim for trips to and from medical practitioners was entirely reasonable.

28. Accordingly the plaintiff is entitled to an award of special damages for the total sum claimed of $3,859.50 less the sum of $708.70 already paid to be defendant.  I therefore award the sum of $3,150.80.

    Future Expenses

29. Dr Tottman, in his first report had recommended appropriate antidepressant medication at $28 per month over 2-3 years and consultations with a psychiatrist every month or two for 12 months at an overall cost of $1,000 - $2,000.  Ms Kirkby also recommended treatment continue.  Although the plaintiff is now intending to seek that help, some 8½ years has elapsed and the plaintiff’s condition is improving.  Anne Morgan recommended gym programs, but felt that it might not be available because of the plaintiff’s choice of lifestyle in Queensland.

30. I accept the opinion expressed by Professor Goldney that the full recommended treatment may now be of little assistance because of the time which has elapsed since the accident.  I will however allow a sum of $1,000 to cover the possibility of the plaintiff undertaking some form of therapy.

    Interest

31. Pursuant to s 35A(1)(k) no interest is to be awarded on damages for non-economic loss or prospective loss.  In this case interest is to be awarded on the components of past economic loss, past superannuation entitlements, the past voluntary services, and that small portion of her special damages paid by her.  The assessment of the interest component is itself complex because as I have found the past loss of earning capacity did not commence until early 2004, whereas other components commenced shortly after the accident.

32. It is necessary to take a broad axe approach.  Applying an interest rate of 6% per annum but progressively over the period I award the sum of $8,000 as interest.

    Summary

    1.              Non-economic loss       $ 30,240.00

    2.              Past loss of earning capacity  $ 29,711.25

    3.              Past superannuation entitlements  $   2,700.00

    4.              Future loss of earning capacity      $ 35,000.00

    5.              Future superannuation entitlements       $   3,150.00

    6.              Voluntary Services       $   7,000.00

    7.              Special Damages  $   3,150.80

    8.              Future medical expenses       $   1,000.00

    9.              Interest  $   8,000.00

    TOTAL  $119,952.05

33. There will be judgment for the plaintiff in the sum of $119,952.05 inclusive of interest.