Yeremich v Bascombe - [2005] WADC 193

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: YEREMICH -v- BASCOMBE & ANOR [2005] WADC 193

CORAM: FENBURY DCJ

HEARD: 21, 22, 25, 26, 27, 28 JULY
& 17 AUGUST 2005

DELIVERED : 7 OCTOBER 2005

FILE NO/S: CIV 1527 of 2003

BETWEEN: LAZARKA YEREMICH
Plaintiff
AND
TRACEY MELISSA BASCOMBE
First Defendant
RICHARD DONALD JOHN MENKENS
Second Defendant

Catchwords:

Damages - Personal injury - Motor vehicle accident - Soft tissue injuries to the cervical thoracic and lumbar spines - Aggravation of pre-existing spinal degeneration - Clinical depression and anxiety - Pre-accident susceptibility - 20 per cent of worst case

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
First Defendant              :     Mr J R Brooksby
Second Defendant         :     Mr G W Massey

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant              :     Greenland Brooksby
Second Defendant         :     Gary Massey & Associates

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Case(s) also cited:

Nil

FENBURY DCJ:

Issues

This is a claim for damages for personal injury arising out of a motor vehicle accident that occurred on 11 June 1999. It was a two car collision at a T‑junction. The plaintiff was travelling in the vehicle that was in the terminating road as either a front seat passenger or driver. She was the registered owner of that vehicle.
The plaintiff alleges she was the front seat passenger. The insurer of the first defendant alleges that the plaintiff was the driver. The second defendant, the plaintiff's then partner, now husband, admits that the plaintiff was a passenger and that he was the driver of her vehicle. Obviously the first defendant was the driver of the vehicle in the continuing road.
If the Court finds for the plaintiff on the issue of who was the driver of her vehicle, in other words that she was not, then the issue of the respective driving culpability of the first and second defendants will lapse given that they are both covered by insurance policies held by the same insurer, being the Insurance Commission of Western Australia and given the second defendant does not does not pursue a claim in this action.
If the Court finds the plaintiff was the driver of her vehicle then issues of whether the first defendant was negligent and if so whether the plaintiff contributed to the accident would need to be considered.
The case also requires an assessment of damages. That assessment is particularly difficult given the nature and extent of the plaintiff's relevant pre‑accident history, the variety and spread of her alleged residual disabilities and the fact that more energy and focus was devoted by the defence to the determination of issues of liability than quantum.

Who was driving the plaintiff's vehicle?

The plaintiff said her husband, a computer systems consultant, needed a computer part to carry out repairs. She said he did not know how to get to the computer shop they had been to previously and she said she agreed to go with him on the evening in question and show him the way. She did not know the address but she knew how to get there. She intended to go with him, show him, but she would remain in the car. As the plaintiff was scantily clad ‑ on that June night, wearing a short nightie and nothing else – she intended to remain in the vehicle.
They travelled in the vehicle the second defendant normally drove. However, it was registered in the plaintiff's name as was the other family vehicle. When he arrived home to pick her up to go to the computer shop, the second defendant had to wait quite some time for the plaintiff to complete her ablutions. The second defendant was the holder of an extraordinary motor drivers licence that enabled him to drive in the course of his employment. According to the evidence the trip to the computer shop fell within that category.

Who was driving the plaintiff's vehicle?

The plaintiff is a 33 year old married legal practitioner with one child. She was born and educated in Western Australia, attending Methodist Ladies College and Murdoch University. She was admitted to practice in June 1998. At the time of the motor vehicle accident she worked as an employed solicitor for a legal firm specialising in personal injury work.
The plaintiff gave evidence that her husband, the second defendant, was driving her vehicle at the time of the accident. This evidence was consistent with all her contemporaneous oral and written accounts of the accident, for example, (Patient Care Record – Fremantle Hospital – 11 June 1999 – Exhibit 11.26.)
The plaintiff's oral account that I infer was given to the ambulance driver, was given when the plaintiff was still in shock post‑accident. From the plaintiff's education, experience and occupation, I think it can be inferred that she was familiar with the process of seeking damages for personal injury arising out of motor vehicle accidents.
It does not seem to me to be the case that she was seriously physically injured in the accident. She had bruises and soft tissue injuries and perhaps some shock. If the plaintiff was indeed the driver of her vehicle, then she has set out, immediately following the accident, on a deceitful course that she would have known could lead to loss of her career, if not her liberty. One can ask therefore why would she do so? Could it be for personal gain? I think that is unlikely if she believed the lights were green. She would have a claim in that scenario even if she was driving.
It is unlikely, I think, that this particular plaintiff would have decided to, and commenced lying about this issue from the first instant. Indeed, given her spouse may have been in jeopardy of driving contrary to an extraordinary motor driver's licence, I can see the possibility of a person in her position lying by saying that she was the driver.
As I have said the plaintiff has given consistent evidence on this point. She was unshaken in cross‑examination and further, I think it is inherently unlikely that she would set out to lie in the circumstances. This is the more so given her husband, the second defendant, had an extraordinary motor driver's licence and was at risk of being alleged to have driven contrary to that licence.
Apart from the satisfactory nature of the plaintiff's evidence on the point (not to mention the satisfactory evidence of the second defendant, her husband) there is other evidence that corroborates the plaintiff's evidence. In particular I refer to the evidence of the location of bruising on the plaintiff's body. The evidence of the physiotherapist was to the effect that the plaintiff had bruising to the left hand side of her body and seatbelt burn to her left shoulder. Furthermore, the triage nurse at Fremantle Hospital – Exhibit 11.26 et seq – recorded the plaintiff complaining of pain to the left leg and left arm. This evidence is consistent with impact from the left and the plaintiff being the passenger not the driver.
The case put on behalf of the first defendant on the issue of the identity of the driver of the plaintiff's vehicle relies on the evidence of two witnesses named Kylie Pitman and Clare Woods.
These two witnesses were in a car park some short distance, say at least 50 metres, from the accident and according to their evidence they went to the scene of the accident before anybody had left their vehicle.
Kylie Pitman said that she helped a man out of the passenger side of the red car, which was the plaintiff's car. She sat him on the kerb. He had a sore leg. She said the man's wife got out of the driver's seat of that car. She seemed okay. She was wearing a short nightie. She had no underwear on.
Although the witness got confused about which car it was that the plaintiff was in, she was quite firm in her evidence that it was the plaintiff who was the driver. She doesn't say she saw the plaintiff driving. Her evidence is that the plaintiff got out of the driver's side of the vehicle.
The plaintiff concedes she got out of the driver's side of the vehicle. She said this was so because the passenger door side of her vehicle was unserviceable, it having been near the site of impact. Photographic evidence tends to substantiate what the plaintiff says about the door. Yet Kylie Pitman says she took the second defendant out of the passenger door. This is contrary to the evidence of the second defendant and the plaintiff.
I accept that the passenger door of the plaintiff's vehicle was unserviceable. I think Kylie Pitman is mistaken about which door the second defendant came out of but, further, that she is assuming the plaintiff was the driver merely because she exited the vehicle from the driver's door.
Clare Woods gave similar evidence to Kylie Pitman. She arrived at the scene behind Kylie Pitman. She said there was a female driver and a male passenger in the red car. She said that she did not remember the female passenger (who must be the plaintiff) getting out of that car but she remembered that she was a big girl in a nightie. This description can be said to fit the plaintiff. Clare Woods saw Kylie Pitman help a male passenger out of the red car onto the kerb. She said the plaintiff seemed to be in shock. She made some comment about being supposed to be wearing glasses but she was not wearing any.
In cross‑examination Ms Woods said that she heard a screech prior to hearing the accident. This is contrasted to the evidence of the first defendant and the plaintiff to the effect that no brakes were applied prior to the accident. Ms Woods did not know whether the passenger's door of the red car was serviceable or not. She said that her recollection was unclear.
The state of the evidence is therefore that two independent witnesses say that the plaintiff was the driver of the red car. Given the conflict of evidence particularly in the evidence of Kylie Pitman on the serviceability of the passenger's door of the vehicle, and my view about that, I think it likely these witnesses have inferred the plaintiff was the driver because she was either seen briefly sitting in or exiting from the driver's side of the vehicle.
Not only was there evidence that the passenger's side door was unserviceable, but the first defendant's vehicle ended up close to it and may well have impeded exit from that door.
The standard of proof to be met by the plaintiff on the issue of whether she was the passenger in the vehicle is the civil standard being the balance of probability. It is asserted on behalf of the first defendant that the plaintiff was the driver, contrary to the plaintiff's sworn evidence and her claim in this action. The standard of proof to be met, although still the civil standard, must be met by clear and cogent evidence (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362 – 363). I am satisfied on the balance of probabilities that the plaintiff was the passenger in her vehicle as she has always said. The onus of proof, to prove the contrary, falling upon the first defendant, has not been met. Although both Kylie Pitman and Clare Woods gave their evidence in a satisfactory fashion, and I have no doubt they honestly believe that the plaintiff was the driver, I am not convinced of their reliability. I think they are mistaken.

Visual aids

It is also alleged that the plaintiff drove without suitable visual aids. This issue only arises if the plaintiff was the driver of the vehicle. I observe in passing that the plaintiff's prescription for her spectacles was in excess of minus point three for each eye. From personal experience I would say that a person with that degree of myopia is dependent upon visual aids at all times, let alone for driving. Except for the excessively vain, which the plaintiff is obviously not, people with that degree of impairment wear their visual aids at all times. It is disconcerting and irritating not to do so. The plaintiff allegedly stated to Clare Woods that she had not been wearing her glasses whilst driving that evening. She said in evidence her glasses came off in the accident. It is common ground she was not wearing glasses when she got out of the vehicle. She said she asked her husband to help her find them which he did.
In my view there is room for misunderstanding on the part of Clare Woods and her account that the plaintiff told her she had not been wearing her glasses at the time of the accident. I accept the plaintiff's evidence on that issue. It is more likely than not that she was wearing her glasses, the more so, I think, because darkness had fallen and the effects of her visual impairment would therefore have been accentuated. Again, I say that from personal experience.

The plaintiff ‑ Pre‑accident

The plaintiff was born on 14 November 1967.
In 1986, when she was about 19, she suffered a back injury whilst surfing. A rope gave way. She had back pain and leg symptoms and in due course attended Rockingham Hospital where a CT scan identified a disc bulge at L4/S1. The plaintiff underwent traction, took medication, and was referred to Shenton Park Hospital. She had an epidural injection of Depomedrol which gave her fast relief.
The plaintiff then spent two years pursuing a nursing career. She then decided to re‑sit her TEE examinations and pursue law. In spite of personal fall‑out and a depressive episode from this, she enrolled at Murdoch University and completed a law degree between 1990 and 1995.
The plaintiff graduated and commenced articles with a firm of solicitors known as Bradford & Co in 1996. Bradford & Co specialise in personal injuries matters. The plaintiff had non‑specific work place problems at that firm which culminated in her falling out with Mr Bradford who was her principal. Mr Bradford apparently declined to fulfil his commitments to the plaintiff's clerkship.
During her time at Bradford & Co the plaintiff also commenced receiving treatment for depression. She was prescribed antidepressants by her general practitioner. She was referred to a psychiatrist and received some treatment.
In cross‑examination the plaintiff said that she had had her first bout of depression shortly after leaving high school in 1985 when she was in conflict with her family over whether or not to continue a nursing career. She said that she was under stress at that time and under pressure from her family. She saw her general practitioner but did not take antidepressants that had been prescribed for her.
The plaintiff also said that she suffered depression "on and off" during her time at Murdoch University between 1990 and 1995. She did not have any treatment during that period either. It was when she was with Mr Bradford that she had treatment by way of antidepressants for the first time.
The plaintiff said that she was quite disillusioned by what had happened to her at Bradford & Co. Somehow or other she managed to get admitted to practice on 4 February 1997 however, otherwise, she decided to take some time off out of the law.
In October of 1997 the plaintiff decided to "try again" (T12) and applied for a position with the Aboriginal Legal Service in the civil section. She practised in various fields including personal injuries. According to the plaintiff she was not prescribed any antidepressant medication during this time, which was in 1998, but she did take medication when she felt she needed to, accessing accumulated stocks.
In January 1999 the plaintiff slipped on a cake of soap and fell in the ALS bathroom. She hit her "arm and elbow" on the bank of lockers to the right hand side and hurt her "lower back in the fall" (T13). The plaintiff only had one day off work. However she said she suffered right leg symptoms and became convinced she had suffered another lower back injury that reminded her of her windsurfing injury in 1986, some 13 years before.
The plaintiff left her employment with the Aboriginal Legal Service in about April 1999 and commenced employment with the legal firm Friedman Lurie Singh, again, solicitors who specialise in personal injury work. The plaintiff felt she had not been supported in her time with the Aboriginal Legal Service and she was promised continuing legal education opportunities with the firm. She had been concerned at the Aboriginal Legal Service that she had no guidance and that she had very much been left to her own resources.
The plaintiff commenced her employment with Friedman Lurie and Singh on a salary of $40,000 per annum before tax "with the prospect of future increases commensurate with my performance and abilities". (T14).
The history that the plaintiff gave to psychiatrist Dr Sam Febbo, as set out in his report of 2 November 1999 (exhibit 12, p 29) was put to her. At p 32 of that book Dr Febbo described the plaintiff's past psychiatric history, as related by her, in the following terms:
"Ms Yeremich said that in 1987 she experienced quite significant depression which lasted for about a year. She said that the depression related to her studies and to family concerns. She said that her sleep became disturbed, she ate excessively, she was very teary, experienced migraines "for weeks" and, in addition, there was significant suicidal ideation. She saw a general practitioner and was prescribed antidepressant tablets but did not take this medication.
In 1996 Ms Yeremich became depressed again, during her articles year. She said that she experienced considerable doubt in herself and indeed experienced quite considerable suicidal ideation, disturbed sleep, impaired energy, and feeling on edge. In addition she experienced a sore neck, but she said that 'the pain was not like now'. She said she was particularly teary and experienced various somatic manifestations of anxiety. She was commenced on the antidepressant Prozac in late 1996 and remained on this antidepressant for about a year. She said that her depressive symptoms improved with this medication. I understand that during the episode of 1996 Ms Yeremich saw the late Dr Rose Toussaint (psychiatrist).
Ms Yeremich said that earlier this year she again began to become 'depressed'. She recalled having become teary. I understand that this related to ambivalence about leaving the ALS. She said that she had her interview with Friedman & Lurie Singh in March 1999 and when she was offered the job 'she felt sick'. She said that after the interview she went to Thailand on holiday. She said she 'got depressed a lot in Thailand'. She said that she was crying a lot and her sleep was disturbed. She was uncertain as to whether her concentration had also deteriorated because at the time she was on holiday. She said that her condition was akin to 'grief' about having to leave the ALS.
Ms Yeremich said, however, that at the time of the accident she was not depressed."
The plaintiff admitted in cross‑examination that this was her history and that she commenced two separate court actions against Mr Bradford being a claim for workers' compensation for severe stress and depression and a claim for unfair dismissal. The plaintiff received a common law settlement for the action relating to depression. The plaintiff was cross‑examined on her workers' compensation application dated 24 January 1987 which was Exhibit 8. The form was filled out by the plaintiff in her own hand. She described her depression as being of "gradual onset from February/March 1996".
In the box entitled "What actually happened and what caused the occurrence?" the plaintiff wrote:
"Gradual onset over a period of time. However precipitating factor on this occasion being principal's refusal to provide assistance despite numerous requests/pleas, with urgent client matter. This is only one of multiple occurrences/events leading up to occurrence of 16.1.97."
And then in the box entitled "Describe the most serious type of injury or disease caused by the occurrence" the plaintiff wrote:
"Chronic and severe agitation, panic, anxiety, fear, stress and depression relating in emotional/physical psychological debilitation."

And later in the document the plaintiff wrote:
"The present injury/disability is (underlined) attributable to numerous occurrences throughout my employment with Bradford & Co."
Finally, in the box entitled "Was the part of the body affected or injured by this occurrence healthy before the occurrence? If not give details" the plaintiff wrote:
"Predisposition to anxiety/depression."
The only other matter to which reference should be made concerning the plaintiff's pre‑accident history is the fact that she had at least two other motor vehicle accidents.

The accident

As I have found, the plaintiff was sitting in the front passenger seat of the Hyundai sedan driven by her husband, the second defendant. The vehicle entered the intersection heading for a driveway on the other side. The first defendant's vehicle collided with the left hand side of the plaintiff's vehicle, near where the plaintiff was sitting. According to the plaintiff and the first defendant, neither vehicle braked before impact.
The extent of the damage to the plaintiff's vehicle is evident from the bundle of photographs, exhibit 2. The impact is to the front half of the passenger door, and the left hand front wheel housing behind, above and in front of the left hand front wheel. The left hand wheel appears unserviceable. The impact damage is moderate but the vehicle is not driveable.
The plaintiff described the collision as happening slowly, and the impact as involving a "huge amount of force" (T19). She felt a "very strong pain" in her chest and she said "I actually heard crumbling metal and I actually thought that my chest was being pierced on the left hand side by the pain that I was feeling".
The plaintiff described her experiences in the most dramatic terms, but this is not unusual in accident victims, and I do not place any great significance upon that aspect. However, the way the plaintiff described the accident does seem to me to provide some insight into her makeup, and by way of example I quote her evidence from the bottom of (T19)"
"… I was very dazed and stunned and I just remember crying and sitting there and not making any effort to move and choking and coughing. There was a lot of smoke in the (sic car) and I couldn't see. And then the next thing that I recall is that the smoke just flooded out because Richard opened the drivers side door and it suddenly all became clear because smoke flooded out through that door. The door had obviously been closed while I was in the car and he came in through, yes, kneeling on the seats and was grabbing at me and shouting at me and he was frantic and trying to get me to respond and to move and to move faster but I was just slapping him away and saying 'don't touch me, don't touch me', and I can't explain why but actually at the time I really thought my chest had been pierced and I thought there was actually metal connecting me to the car through my chest because the pain was so intense there. And also I felt – I thought I had blood all over me, all over my legs. I could feel it was wet, everything was wet, but it turned out that it wasn't blood. That was the milk containers that had exploded on impact which were at my feet with the diet Coke bottle. And I'm not clear on this but somehow he managed to, despite my fighting him off, managed to unbuckle my seat and grab me and pull me and I assisted. I remember getting out pretty much out of my own steam but he was pulling at me and he was frantic and trying to make me go faster and I was fighting him."
There was no evidence that either car had caught alight and it is probable that what the plaintiff saw was steam.
Upon the attendance of the ambulance, the plaintiff was provided with a wheel chair and a collar. She felt ‑
"Very intense deep smarting (sic pain) down my left hand side. Very numb and intense, the entire left hand side of my body. I had a bit of neck pain but really all I felt was just a deep intense ache a sort of smarting and numbness on my left hand side. Particularly around the chest and the left leg and thigh" (T29).
The plaintiff was taken to hospital. She was not admitted. After x‑rays (which obviously revealed no fractures) she was sent home and advised to attend upon her general practitioner.
Not surprisingly, the next morning, the plaintiff felt, as she put it, like she had been "run over by a truck basically – I'd been beaten badly and felt very sore and achey and stiff all over, miserable" (T30).
The plaintiff rested on the day after the accident and then on the following day decided to seek some medical attention because she felt a lot worse. She decided not to return to the medical practice she had attended when she had had her slip and fall at the ALS because they "simply wouldn't listen" to her, and so she attended upon Dr Lim at the Hatherley Medical Centre in Winthrop. When asked about her pain state by that time she said:
"It's honestly hard for me to recall now. It's been such a long time. The only real recollection I have is just – actually it's the stiffness. I recollect more the stiffness rather than the pain and feeling quite intensely achey and sore just all over, I couldn't, you know, say I was more painful in one area than another. It was just absolutely shockingly bad all over. So it was very hard to describe.
Did you go back to work on the Monday? --- No. I really can't recall how long it was. Dr Lim was just giving, you know, time off as we went along. I was feeling very bad and I was starting to get very worried because the pain was starting to really get quite intense and he was assuring me that I was fine, that there was no problem; there was nothing wrong; I didn't have any injuries. So I didn't feel that way, but I felt, you know, I'll just have to do my best and at some stage I decided to try and go back to work."
When asked what sort of problems she had later in the following months or two, the plaintiff said:
"Well, once again I don't know how accurate I can be this far after, but I do recall having quite significant strong neck and arm pain and chest pain particularly that was really concerning me. … I had had pain before – neck pain before – and had not actually got formal treatment, but I'd get massages from Richard or whatever. It was usually at times of stress I'd get a stiff neck and I'd end up with a headache and a sore neck and occasionally I'd end up having shoulder pain as well and shoulder blade pain, but this was just incomparable to that. It was quite diffuse. It was very intense and far ranging in terms of just everywhere. In fact, one thing I do recall is I recall thinking that the only areas that didn't particularly really hurt were just at the lower sort of parts around my waist here and it was easier to say where I didn't hurt rather than where I did hurt. I do recall that. So, yes, it was quite intense and extensive."
According to the plaintiff however, she was well motivated to work. Her husband, the second defendant ‑
"… fashioned for me a sort of table that's very similar to the lectern on the bar table, but it was on that sort of angle, 45 degrees – a large piece of wood and on each side it had a curved metal frame that I could lay down and it had a ledge on the bottom – and had books and read while I was lying down or semi reclined and just dictate into the Dictaphone. So they would have a secretary come and pick up my notes and my tapes and transcribe them and then they'd email them to me so I could check them over and make any changes and if I was satisfied, I'd email them back and someone would sign them in my absence in my name, and it would go on basically. I took some calls at home. I spoke to clients and I managed – I actually did this – by then I was seeing Dr Swan and this was against her orders. She asked me not to continue doing this. She thought it was hindering my recovery, but she accepted that I had a real need to continue working even on the psychological level, to feel that I was still making a contribution to – you know, the generosity of the partners as well, but also the commitment I'd made to them in terms of the employment. So I carried this on as best I could and I think it wasn't until around November that I realised she was right that I couldn't cope and it was just making things worse for me on many levels, and I realised I couldn't go on." (T32)
Later the plaintiff was asked ‑
"What physical or other reasons caused you to stop working? --- Basically it was – physically it was a huge, huge burden on me.
But in terms of what physically? In terms of your body what parts of your body were affected that stopped you from working? --- I had – well, actually the major problem was chest pain. I had quite crushing chest pain at some stages and it would come on – it was generally there all the time, but I'd occasionally have instances where I'd have very acute attacks that were quite frightening and I ended up actually going to hospital in an ambulance on two occasions thinking I was having a heart attack they were that severe, these chest symptoms, and that was subsequently ruled out and I was relieved to learn that it certainly wasn't what I suspected and it was in fact as a result of my chest injuries and thoracic spine injury that I'd sustained. I also had – the next significant symptoms I had were arm and neck pain – neck"
Which arm? --- Both arms – occasionally just one, occasionally both, occasionally the other – it really varied and it was related to my activities. So, you know, as long as I didn't do much and remained relatively sedentary and spent a lot of time lying down and not sitting upright or working at a desk or at a computer or walking, I could keep the symptoms under control. But it would vary and it would depend on what I'd been doing to basically bring it on and the pain was quite distinctly travelling down my arms into certain areas and certain fingers and certain hands at various times. There was also just an incredible headache, sort of migraine, that was just constant – just permanent – and it was really wearing me down and getting me quite tired and ragged around the edges and not able to cope."
The plaintiff said that she'd had neck pain before the accident but it was not comparable with the neck pain she had after it. She said that she had had pre‑accident back and chest pain and upper body pain, but had obtained relief through treatment. At the time of the accident she said she had no chest pain. She had had a bit of neck pain from time to time pre‑accident, but this was relieved by massage. This pain was exacerbated by the stress of leaving her employment with the ALS and changing to Friedman Lurie Singh.
Prior to the accident she had occasional headache which was associated with neck pain. She was asked ‑
"What sort of difference did you have in terms of headache after the accident as compared to before? --- Honestly, they're incomparable. It was exponentially worse.
Do you still suffer from them? --- Yes absolutely."
The plaintiff described how she had back pain prior to the accident but that this had been exacerbated by the accident. Her low back pain intensified, and where as previously she had sharp twinges down one of her legs that twinge pain remained and intensified, and began to happen down the other leg as well. She also had symptoms in the front of her thighs and upper legs. She had a numb patch on the left top side pre‑accident, and another numb patch on the other leg, post‑accident.
The plaintiff said that she had had some psychiatric treatment prior to the accident which was in 1996. She began to take anti‑depressants prescribed by her GP, Dr Swan. She takes four tablets a day of Prozac. She also takes Mersandol Forte for pain relief and Fentanyl durogesic patches.
The plaintiff said that after the accident initially she attended upon a new GP, Dr Lim. Dr Lim referred her to Professor Mastaglia who is a consultant neurologist. This was at the plaintiff's request. Professor Mastaglia ordered MRI investigation which "confirmed that there were issues in all levels of my spine, thoracic, cervical and lumbar".
The plaintiff also said she had attended upon Mr Woodland who was an orthopaedic surgeon. She was referred to him by her second GP, Dr Swan. The plaintiff said that Mr Woodland was very concerned about her cervical and thoracic spine and felt her cervical spine would require surgery because her spinal cord was quite compressed and that there was a pre‑existing stenosis.
The plaintiff stated that she underwent a cervical laminectomy at three levels on 26 June 2003. In spite of pessimistic medical predictions the plaintiff had improvement in some of her symptoms following this surgery.
The plaintiff said that she was referred to Dr Graziotti, a pain specialist. Her main pain was from the lumbar region of her spine. She received Pethadine injections.
The plaintiff was then asked about the effect that the accident had had upon her; about what "changes" it had made to her "everyday life". She said at (T 42):
"Basically – my life is certainly not the same. I'm not the same person. I spend most of my time trying to think of ways to do as little as possible. … We don't go out anymore. … We used to travel like huge amount overseas, sometimes a couple of times a year. … I couldn't do any of the things we used to do. For example, we had booked for white-water rafting and volcano trekking and things like that. We couldn't go and do those things … I used to do a lot of renovations around our existing house … sanding windows … standing on ladders and sanding by hand and scraping things down and repainting … I also did a lot of tiling. … A lot of painting … then I used to go to a gym with my colleague and friend from University … I was quite fit … I used to do a lot of walking and bushwalking with Richard. We have a park across the road from our house and there's a basketball square there, a small one, and we used to go and walk across and play one on one on weekends. We used to go fishing. … Basically I've become really much of a recluse and I really don't go anywhere. … (She spoke about having acquired a bigger motor vehicle to protect her in car accidents etc.) … So, yes, everything has changed and it's with a view to minimising my activities to make sure that I can suffer as little pain as possible … ."
The plaintiff described a very painful post‑surgery recovery. Some short time thereafter she became pregnant and this relieved her symptoms remarkably. She began to suffer from some depression. She stated that she and her husband did not have firm plans for children but they did intend to have a child at some stage.
At (T 47) the plaintiff was asked:
"I just want you to tell his Honour briefly in summary from the problems that you have arising from the accident in your body on an ongoing basis, that is, what aches, pain etc? --- Alright. I'll just preface that with a comment; that is, it's not a daily occurrence. I can go sometimes a matter of days if not a week or so with really hardly any pain at all. That's really related to what my activity is and what I've been up in the preceding week. But basically, if I've been quite active, the pain I usually feel is generally the chest pain that runs around my chest from my spine around both sides. It's quite a compressing pain. It's a crampy feeling. It's quite wide, it’s a very wide band of pain that runs around my chest and generally, up until a few years ago, I wasn't able to wear a bra because I was very, very tender. Now I have improved so I am able on various occasions to wear a bra, but I tend not to because it does exacerbate it if I wear it for long periods of time. I have pain through my arms."
The plaintiff described occasions when she has very severe chest pain requiring an attendance at hospital. She gets arm pain on and off.

Comment on plaintiff's presentation in court

Having reviewed what the plaintiff said in evidence‑in‑chief about her residual disabilities I think it appropriate, at this stage, to comment upon my own observations of her in the witness box. The plaintiff gave evidence over a considerable period of time during which there was the interposing of a number of witnesses. Her evidence‑in‑chief continued until after lunch on the first day. She was then cross‑examined for the rest of that day. Her cross‑examination resumed on the second day when the evidence of the psychiatrist, De Felice, was interposed. The evidence of Dr Graziotti was also interposed. The cross‑examination of the plaintiff resumed at 12.45 pm and continued after lunch until about 3 o'clock when the evidence of Dr Lim was interposed. The plaintiff resumed cross‑examination at about 10.45 on day three until Dr Swan was interposed. The plaintiff's cross‑examination resumed again at 12.30 on the third day and concluded sometime around 2.20 pm.
The plaintiff was in court in the witness box for substantial periods of time over about three days.
On no occasion did the plaintiff display any physical discomfort whatsoever in the witness box. On no occasion did she ask for a break, to stand up, or move about the way many plaintiffs do. There was no sign of her suffering any pain at all in the witness box.
The plaintiff's responses to questions were always appropriate albeit sometimes lengthy. She was sharp, and displayed considerable concentration and mental acuity. She gave as good as she got during cross‑examination. She was firm, adamant, clear and, being a lawyer who practiced in personal injuries, she was able to debate issues as an equal to cross‑examining counsel.
Quite frankly, in spite of what she says about her disabilities, the plaintiff displayed none whatsoever in the lengthy period of time I had to observe her in the witness box and in Court. Given that the practice of law is not a significantly physically demanding occupation, save for posterioral immobility being an occasional problem, and perhaps heavy file shifting, it is difficult to see how the plaintiff is unable to work in the legal profession. As I think the plaintiff conceded, her problem is motivation.
I am not suggesting that the plaintiff has not suffered from the physical symptoms that she has said she suffered since the accident, or at least some of them. She has plenty of medical support for her having back symptoms and I shall come to that shortly. I simply wish to state at this stage in these reasons that having reviewed what the plaintiff said about her problems, none of them were evident in Court. I realise that she may well have taken medication and been having a good day. But she seemed to me to demonstrate a significant degree of retained earning capacity in the legal profession. And if she was medicated I wonder if she could work with medical assistance.
I do not think the plaintiff's court performance was ever put to medical witnesses as being evidence that threw doubt on those that said she was totally incapacitated. Certainly counsel for the first defendant focused on this issue in final submissions (par 100 of his submission). As a "body" of evidence therefore, this material was "there" in the Court, and identified by counsel for the first defendant (it being obvious in my view), but not tested in the sense of being drawn to the attention of any expert witness. Some of the expert witnesses spoke about the plaintiff having some retained capacity and I shall mention this aspect when I come to consider that question.

Plaintiff cross‑examination

Before reviewing the medical evidence I shall make some further mention of the cross‑examination of the plaintiff.
The plaintiff was asked about her employment record. She left Bradford & Co having had a falling out with Mr Keith Bradford, such that he declined to move her admission to practice.
The plaintiff then commenced employment with the Aboriginal Legal Service. She had the fall at work that I have previously mentioned. The plaintiff also had a falling out with her supervising solicitor at the ALS. The plaintiff was then asked about her confrontation with the only two legal employers she had had, and her attention was drawn to the various claims she had made including worker's compensation and unfair dismissal claims against Bradford & Co, and worker's compensation claim against the ALS. She was asked whether she regarded herself as confrontationist, and she said "possibly".

As I have mentioned, the plaintiff's evidence was that she attended upon Dr Lim, a general practitioner, for the first time, shortly after the accident. She had briefly seen a Dr Rogers prior to that post‑accident. The plaintiff described personal difficulties she had with Dr Lim at (T63‑64). The plaintiff said that she had some familiarity with medical matters generally and the difficulty she had with doctors arose when she felt she was being poorly advised. The plaintiff explained how she ceased having contact with Dr Lim, and eventually consulted Dr Swan, a female general practitioner.
It was apparent from matters raised by counsel during the cross‑examination that the plaintiff has had a tendency in her short working life to have conflict in the workplace, and, it would seem, occasionally with her medical practitioners. The extent to which the plaintiff might have exercised her capacities to earn income but for the accident needs to be assessed in the light of those matters. The plaintiff was quite candid in her discussions of these matters with counsel. She was dismissive of any suggestion that she was any more confrontationist than other people, and certainly had no view at all that any of the matters of disputation were her fault.
Having regard to how much difficulty she had in such a short working life, and having regard to her depressive symptoms, it is difficult to conclude that, but for the accident, she would have been likely to have worked full‑time at all material times in the legal profession.
The plaintiff was also asked about occasions since the accident when she has appeared to demonstrate that she has earning capacity of some kind. At (T163) she was asked about a remark she made to Dr Graziotti to the effect that she had worked for six or seven hours a day on her computer. The plaintiff's response was a bit vague, I thought, and I shall again set it out:
"This is November 2002 --- he says similarly when she sits on the computer for hours at a time.
What were you doing on the computer hours at a time? --- I may have been working on that. Other things I was doing was – I do recall spending quite a long period of time at the computer working on documents, I think, for my then solicitors. I think there may have been a pre trial around that time and they requested a lot of information from me which – it took me 6‑months to get around to doing it and then I had to do it, and I recall telling him about that and explaining – basically what I would do is I would sit down to do something and I'm the type of person that no matter what, I want to get it finished and get it done and I just carry on and plough through and I would find symptoms increasing but I wouldn't stop because I couldn't lose that train of thought on what I was doing. So I'd work, I told him, for up to – I recall at least on 2 occasions working for up to 6 or 7 hours at the computer and whether it was to do with the contracts that I was drawing up for them or any correspondence or whether it was to do with later the – for example, my solicitor asked me the other day – there was a 19 page document that I'd written and if it was that early on I would have been doing it at the home computer at the desk. I think I mentioned it in evidence‑in‑chief later on my husband, when I couldn't do this anymore, my husband purchased a lap top for me and actually fashioned a lectern that I could lie in bed – on either side of me on a 45 degree angle – and the computer lap top is attached to it in such a way that I can put my arms up and type and use it, and that's the last 4 years at least. That's how I've been working on the computer. …"
When pressed on the significance of her being able to do work at a computer of six or seven hour duration, the plaintiff at (T164) said:
"… the problem is, Mr Brooksby, not so much that I can't actually do things. There's not much that I'm actually limited from doing. I'd happily admit that – that, you know, I can pick things up. You know I can do a lot of things. The problem is I've learnt time and time again in the past that when I do these things and I carry on, what happens is I get an exacerbation of pain that knocks me out for quite a while after and I really, really pay for it in the end, and I've conditioned myself to just really stop doing these things because quite frankly I just don't want to go through the pain any more. I'm tired of it."
Counsel then asked the plaintiff:
"It's a question of pacing yourself, isn't it. I mean you go from doing nothing to what you describe as fairly frenetic activity and wonder why you pay for it? --- No the point is it's a question of two things isn't it. Motivation and pacing yourself? ---and certainly motivation is an issue for me yes at the moment, and yes, pacing myself has always been an issue. I've always pushed myself too hard."
The plaintiff was then taken back to the issues of her relationship with Dr Lim and the reasons for her dissatisfaction with is treatment. These issues were not particularly helpful in relation to the medical aspects of the claim. They demonstrated how difficult a person the plaintiff may be to deal with, which, to my mind, impacts more on her claim for economic loss.
At (T218) the plaintiff said that she had not applied for full‑time nor even part‑time employment since the accident. She was asked:
"Have you ever registered yourself with any of the legal recruitment agencies available for any form of locum work or part‑time work or even full‑time work?"
Answer: "no, there's no point. I simply could not do it."
In short the plaintiff claims total incapacity for gainful employment. I am unconvinced that this is so.

Medical evidence

Following the accident on 11 June 1999, the plaintiff attended upon Dr Lim, a general practitioner, who treated her until they had a falling out after about two months. The plaintiff then consulted another general practitioner, Dr Swan, from 17 August 1999.
Dr Lim wrote one report dated 13 October 1999 which is document 1 in exhibit 11. Dr Lim referred the plaintiff for a cranial CT scan and a CT scan of her cervical spine. He also referred the plaintiff for x‑rays and a bone scan. He said the plaintiff suffered cervical degenerative disc disease with a posterior disc protrusion at C6/C7, and a posterior disc bulge and prominent disc space narrowing at C5/C6. His diagnosis was that the plaintiff had suffered a soft tissue neck injury with probably a left C6 nerve root entrapment. He thought it possible she suffered acute exacerbation of her pre‑existing chronic lower limb symptoms. His view was that she was suffering from anxiety and depressed moods.
Dr Lim referred the plaintiff to Professor Mastaglia, a neurologist. In cross‑examination, Dr Lim was referred to his clinical notes which became exhibit 13.1. In those notes Dr Lim records observations about the difficulties he had in dealing with the plaintiff. It is not necessary to give detail about the sorts of things that Dr Lim recorded. Suffice it to say he had a lot of problems with the plaintiff as a patient.
I found it difficult to see what problem it was the plaintiff had with Dr Lim. He came across as a highly professional and personable medical practitioner. Nevertheless, it did not seem that Dr Lim's evidence was contentious. Defence counsel was more interested in the inferences that can be drawn from the way the plaintiff's relationship with Dr Lim evolved.
Dr Swan was the other general practitioner called to give evidence. She produced nine reports which are in exhibit 11, documents 9 to 17 inclusive. Both in her oral evidence and in the reports, Dr Swan listed the numerous medications that had been prescribed for the plaintiff. There was no suggestion that this was unjustified.
A perusal of Dr Swan's medical reports shows that she occasionally engages in hyperbole. For example, she described the plaintiff as having "suffered a massive injury" (exhibit 11 document 10) and she described the plaintiff's injuries as "severe" (exhibit 11 document 11). When cross‑examined about this Dr Swan explained that she finds writing reports for medico‑legal matters as "absolutely tiring and nauseating" (T209).
Dr Swan's first report was dated 8 December 1999 and her reports range to 4 October 2002. She assessed the plaintiff as being totally disabled until at least 12 March 2001 (exhibit 11 document 12). Thereafter she seemed to think the plaintiff had some partial work capacity but difficulty in exercising it.
Dr Swan described the plaintiff as being partially disabled to work from 12 March 2001 and continuing.
"She has limited hours of 2 hours per day and restricted duties."
"I would anticipate continued improvement if she is able to return to full‑time work has not been determined." (sic).
"His future work capacity has been compromised." (sic)
And at par 6:
"She is unable to stoop, sit, stand or bend for prolonged periods. She is limited to 15 minutes at the computer on manual reading at a time. She is limited to light duties. I don't give alternative occupations." (sic).
Dr Swan's views vary little over the following period. In par 8 of her report of 24 December 2001, after saying that the plaintiff remains totally disabled to work, she said at par 8
"I expect continuing improvement but if finalisation was decided upon now I believe an estimation can be made in Ms Yeremich's case. Unfortunately it is of ongoing disability, ongoing medication and unable to work in the open job market, or unable to work on a regular basis part‑time".
In her next and last substantive report of 4 October 2002, Dr Swan said that the plaintiff has ongoing disability but that there may be some improvement for part‑time reduced level work for eight hours per week. She also said the plaintiff:
"Should avoid any lifting and stooping work, and should be able to alternate her standing to sitting for four times an hour. She is able to read but concentration will be reduced".
Dr Swan painted a gloomy picture of the plaintiff's prospects. Curiously in her last report she opined that the plaintiff's pregnancy "will aggravate her symptoms". According to the plaintiff it did not. She had some respite from her various ailments when she was pregnant.
Dr Swan's evidence was not substantially challenged in the defence case. However, although she was the treating general practitioner, both in her presentation, her language, and the quality of her written reporting, I must say that I was unimpressed with her as an expert witness. She obviously runs a very busy medical practice. She appeared often to be in a rush when she was seeing the plaintiff. Her written reports were brief and slapdash. I do not place a lot of weight on the opinions she has expressed. I do not mean this to be a personal criticism of her. She candidly stated she dislikes the process.
The length of the list of complaints and ailments prepared and provided by the plaintiff to Dr Swan (exhibit 15), is consistent with other comments I have made earlier in these reasons. Defence counsel's description of it as a "fairly impressive litany of complaints" (T206) is fair. It is revealing of the plaintiff's personality.
The plaintiff was referred to two specialists in the course of her treatment. Initially she was referred to Professor Mastaglia, consultant neurologist, by Dr Lim. She first saw Professor Mastaglia on 18 August 1999. Professor Mastaglia wrote two reports, one dated 18 August 1999 to Dr Lim (exhibit 11 document 24), and also a letter dated 7 September 1999 to Dr Lim (exhibit 22), and finally a letter dated 28 February 2002, being a letter to the plaintiff's then solicitors (exhibit 11 document 25).
Professor Mastaglia, after referring the plaintiff to various investigative procedures, identified three separate disc lesions in the plaintiff's lumbar spine, and also significant abnormality in her cervical spine. He recommended the obtaining of neuro‑surgical opinion. His view was that the plaintiff had sustained multi injuries involving both her cervical and lumbar sacral spine in the motor vehicle accident.
In his last report dated 28 February 2002, addressed to the plaintiff's solicitors, he reports having reviewed the plaintiff on 21 February of that year. He commented about the plaintiff having a moderately severe stenosis of the spinal canal at the C5/6 level. He also observed abnormality at the T8/9 level. On p 3 of that report, Professor Mastaglia summed up his views in the following terms:
"On the basis of my recent assessment I would therefore conclude that your client has very significant persisting problems related to her cervical, thoracic and lumbar sacral spinal injuries and that she remains significantly disabled as a result of these. … Your client remains substantially disabled as a result of her injuries and is currently not working. It is possible that she may be able to return to some part‑time work in the legal profession at some stage. However, she would need to avoid activities such as sitting at a computer terminal for long periods, or lifting or carrying heavy files. … I would rate your client's injuries as being of moderate severity … I believe that she will be left with a permanent residual disability".
In cross‑examination, Professor Mastaglia was asked whether the plaintiff's spinal stenosis was a congenital condition. Professor Mastaglia's view was that the plaintiff's condition was not congenital, and that it was acquired and "secondary to the disc degeneration and osteophytic valve formation". When pressed he conceded that the connection between symptoms and the plaintiff's accident becomes more tenuous the longer the passage of time before the symptoms become apparent. Professor Mastaglia said that the plaintiff had pre‑existing problems in her lumbar and lumbar sacral spine. When pressed, Professor Mastaglia conceded that he had made his assessments upon the basis that the plaintiff had recovered from any pre‑accident events, and that she was symptom free.
Of course Professor Mastaglia is a neurologist and his ability to comment upon the plaintiff's work capacity needs to be considered in the light of that fact.
The plaintiff was then referred to Peter Woodland, an orthopaedic surgeon, whom she saw for the first time on 5 November 1999. Mr Woodland is an orthopaedic spinal surgeon to whom the plaintiff was referred by Dr Swan in November 1999, five months post‑accident. He was the plaintiff's treating orthopaedic surgeon. He wrote a number of reports which are reproduced in exhibit 11, commencing at document 2. In the report at document 2 which is dated 16 February 2000, Mr Woodland set out the plaintiff's history and reviewed various x‑rays. He saw signs of long standing degenerative change in the plaintiff's lumbar spine, but also signs of new disc protrusions at L2/3 and L3/4. He saw several severe abnormalities in the form of multi level stenosis in the cervical spine from C3/4 to C6/7. He saw acute injury at cervical 5/6 in the form of acute posterior disc protrusion. He said:
"My assessment at the time was that although the investigations had indicated pre‑existing spinal conditions in both the cervical spine and lumbar spine, there did appear to be definite acute injury in the cervical spine at the C5/6 disc level, also most likely in the lumbar spine at the L2/3 and L3/4 levels."
Mr Woodland forecast the possibility of surgical treatment, particularly in the cervical spine. He felt that the plaintiff's lumbar spinal symptoms could be treated conservatively. He felt that plaintiff was significantly disabled as at February 2000.
On 30 January 2003, nearly three years later, Mr Woodland wrote another report which is document 3 in exhibit 11. Again, he records having noticed significant developmental cervical spine stenosis with superimposed C5/6 disc protrusion. He also again noticed disc protrusions in the lumbar spine, although apparently they had reduced in size. On the last page of that report he states:
"Lara's situation is complex in regard to her various symptoms. It is fairly complicated by what appears to me to be very protracted insurance claim for whatever reason."
In his report of 6 April 2003, Mr Woodland expressed the view that cervical spinal surgery was indicated. This was in part due to the risk the plaintiff had of quadriplegia should she sustain a further injury. The surgery was to be in the form of a C4/5/6 laminectomy. This procedure was in fact carried out by Mr Woodland on 26 June 2003 (exhibit 11 document 6). Apparently the plaintiff made good progress following the surgery and there were some improvements in her symptoms, however, she was still plagued by problems related to thoracic disc protrusion. In his report of 10 November 2004, Mr Woodland reports on the plaintiff's pregnancy. He supported the plaintiff's view that she would not be able to return to the workforce as a lawyer.
In cross‑examination, counsel for the first defendant articulated the task as being trying to work out "given her pre‑existing problems, essentially what the future would have held for this lady and what it currently holds for her" (T295). At (T296) Mr Woodland put it this way:
"Probably, the best way I could support her story is that she did have pre‑existing lumbar back symptoms and some lower limb symptoms, but then subsequent to the accident, and I believe my correspondence indicate that she had increased lumbar back and mainly left thigh symptoms".
Later, Mr Woodlands fully accepted, and had no doubt, that the plaintiff had pre‑existing spinal symptoms. He says at (T297):
"… I personally feel that without the road crash in 1999 she probably would have had ongoing lumbar back symptoms and she probably would have had some degree of lower limb symptoms in the long term, but it's very hard to quantify."
Mr Woodland then spoke about the severity of the spinal stenosis in the cervical spine. She was born with this condition, and it was this condition that was treated with surgery in June 2003. Mr Woodland describes at length the procedure of the cervical laminectomy, and then at (T300) he is asked what the future would have held for the plaintiff in any event, and he responds:
"My opinion is that if she had not had the car crash – she was 31 at the time – I believe that maybe by the age of 50 or in her fifties, she would have developed increasing significant problems that is very hard to quantify. … but as it turns out the narrowing of the spinal canal was the significant problem and that was actually diagnosed fortuitously by the car crash because she had a MRI scan and so in actual fact she and her legal team are probably worrying more about the spinal – or maybe they're not – but she's worrying more about the spinal pain whereas I was worrying more about the problems of developing spinal cord injury in the future. So my opinion is that if she had not had the car crash, she definitely did have pre‑existing cervical spine stenosis with narrowing of the canal and increasing pressure on the spinal cord and, in that situation I would often see people in their early fifties or mid‑fifties who then need to have surgery done because of increasing problems."
Mr Woodland then commented however, that he had not taken account of specific disc protrusion which:
"obviously accelerated her problems and caused her to have surgery later on, and that's assuming that the disc protrusion was caused by the car crash and I believe it was based on the information presented to me."
After discussing disc protrusions with the witness at (T306) Mr Brooksby then asked for Mr Woodland's opinion about the next best step for the plaintiff and Mr Woodland said:
"Well she should keep up a good regular exercise programme on a daily basis ideally; whether that includes walking, regular walking or swimming or swimming pool exercise or gymnasium work or bike riding.
But obviously she shouldn't go into it hell for leather to start with, but start gently and build up? --- Exactly, yes, and ideally on a daily basis.
There'd be no physical contra indication for an exercise programme? --- No that's right. On the contrary, people with spinal problems should try to keep up a good exercise programme within reason, and there are certain restrictions you would place on them. For example lifting weight for her should be perhaps less than 10 to 15 kilograms empirically but otherwise, no, she should keep up a good regular exercise programme.
And this would keep the muscles in good condition to keep the spine working properly? --- Yes.
I think we all know the benefits of exercise? --- Yes. We all should do that, particularly someone in her situation should do that. As well as losing weight and increasing your fitness, there are improvements in general well being and we know that there is a good treatment for back pain.
That's where I was coming to. That would, one would expect, improve her physical symptoms? --- Usually, yes, you'd expect improvement; usually, that's correct. Yes.
Improve her mood, although that's not your speciality? --- That's outside my field, but there's evidence that that is the case, too, yes".

Mr Woodland seemed to be of the view that it would be possible for the plaintiff to have some regained earning capacity should she obtain some benefit from a regular exercise programme, however, he conceded that the longer a person is out of the workforce the more difficult it is for them to return. He suggested the plaintiff undergo a return to work programme perhaps following a work assessment and input from rehabilitation specialists.
The plaintiff was referred to Andrew Harper, occupational physician, by whom she was first reviewed on 19 December 2001. Professor Harper's reports appear at exhibit 11 documents 18 and 19. In short, Professor Harper's view was that the plaintiff's working capacity was very considerably reduced and that she was incapacitated to work as a solicitor due to her symptoms. This was because the plaintiff had limitations in sitting, standing, walking and working at a desk. He thought that the plaintiff's symptoms of depression, fatigue and the like were secondary to her physical intolerance, "or intolerance of certain physical postures". Professor Harper's view was that the plaintiff should avoid "prolonged sitting upright, desk work, prolonged computer work, heavy carrying, stress, repetitive reaching and work requiring sustained concentration". This was because these activities result in an aggravation of her symptoms and this was "very consistent with the nature of her underlying pathology". He supports these restrictions because they "interfere with her ability to be free of pain".
Professor Harper on p 2 of his second report details aspects of the plaintiff's life.
Professor Harper's view was that the plaintiff would need to continue her medication as this was part of her system of control of her symptoms. She had a chronic condition which was not changing, and the medication was therefore necessary. At (T324) Professor Harper said:
"… she's very limited in all activities of daily living. So one – I mean the first limitation is a limitation in terms of sitting at her desk. The second limitation is in terms of ambulation and actually doing things which limits her ability to use transportation and to get around – to get from home to office etc and then it's – so I think that it's – in terms of the general requirements of employment she doesn't fulfil them. I mean she really – her only option is as I see it is to pursue home employment where she could do some work at a computer at home using staggered hours, so she could do some work for an hour or less, break, and then do something else later on. She can't comply with work time, such as 'be here at 9 o'clock and stay here until 12 o'clock'. She would need to break up those three hours and she would have difficulty actually complying with the standard regulation of a workplace."
In cross‑examination, counsel for the first defendant took Professor Harper's attention to those observations in his report which described the plaintiff during his initial examination. Professor Harper agreed that the examination was "relatively normal". He said "I mean, there are some abnormalities, but there isn't anything there that is very dramatic or extreme. It is relatively normal". He then agreed that he was basing his assessment of the plaintiff more on the plaintiff's subjective complaints of symptomatology, but also upon her radiographic findings.
Interestingly, Professor Harper's observations on examination are similar to those that I made of the plaintiff in court. As I have said earlier in these reasons she gave no sign whatsoever of physical discomfort during the long hours she spent in the witness box. That is another way of saying I think, that her presentation was "relatively normal". And yet here she is having complained to Professor Harper of a list of complaints and sources of pain that is impressively comprehensive.
This issue was taken up by counsel at (T329) in the following exchanges:
"So when you offer the opinion you do in paragraphs 1 to 11, you're offering an opinion based upon what she complains of and what you know of the then radiological investigations? ‑‑‑ That's correct.
But I think that you'd agree that radiological investigations are of limited value in isolation in terms of attributing symptoms? ‑‑‑ Yes I agree with that.
It would seem to me the physical examination is not entirely consistent with her self reporting of pain? ‑‑‑ Well, I don't agree with that in that her disability is one of intolerance of sustained activity, whether it be prolonged sitting or any other prolonged static posture and that's not something you see on physical examination and I think that's important.
One can understand to some extent how prolonged sitting or doing anything prolonged might prejudice her competitiveness in the workforce, but it wouldn't keep her out of the workforce completely, would it? ‑‑‑ It depends on the degree of that. I think that that's – there are lots of people with reduced tolerance of sitting, standing and whatever else who can work. Now, in her particular case if it comes to tolerance of sitting at a desk, well, she just can't do it. In order to work at a computer ‑ ‑ ‑
Where do you get that from? ‑‑‑ Her.
Prolonged periods repeatedly? ‑‑‑ Yes.
Sitting tolerance is effected when she sits for prolonged periods repeatedly. But is that sufficient to keep her out of the workforce? ‑‑‑ I think it is".
There then developed a bit of heated discussion between counsel and the witness and Professor Harper stressed that in his view the plaintiff's underlying pathology explains her symptomatology and that therefore there was a "high degree of consistency". And later:
"… this person has got something going wrong in each level (of her spine) and she's had spinal stenosis in her neck so, you know, she's got plenty of pathology to substantiate her disability."
And then:
"But you don't know how much pain that's causing. You have to rely on her to report that? ‑‑‑ That's correct, as it's routinely done as an intrinsic part of medical practice".
Professor Harper agreed that the plaintiff would benefit both physically and mentally from exercise, and he also agreed that it appeared she had been relatively inactive in recent years. However, he shied away from counsel's suggestion that if the plaintiff engaged in exercise, building up slowly, that she would be able to return to the workforce, and he said:
"Her disability is severe in terms of her capacity to do repetitive activities and I don't think it is medically sound to propose that exercise is going to be the solution to her problem".
Professor Harper, as I suppose all medical practitioners called in support of a party's case would, has accepted the history provided by the plaintiff at face value. He bases his opinion upon an acceptance of that history, and says that it is consistent with the plaintiff's pathology. There is no doubt the plaintiff has significant pathology throughout her spine and that her complaints of pain are consistent. It is plain that the plaintiff does have some capacity to do the sorts of physical acts which would be required in solicitors' work but there seems to be issue about how long she could do it for, and whether she could do it on a regular basis. It is difficult, I think, to conclude that those sorts of challenges could not be addressed in some way in this modern day.
There were two orthopaedic surgeons called to give evidence by the first defendant, and they were experts to whom the plaintiff was referred for medico/legal reasons. In other words they were not treating doctors.
The plaintiff was referred by the first defendant's solicitors to Mr R C Edibam, orthopaedic surgeon, who saw her some time shortly prior to 26 August 1999.
Mr Edibam, as I think did some of the other experts, wrestled with the difficulty if not impossibility, of attributing cause to the plaintiff's symptoms in the light of her pre‑accident history. He also commented upon extensive pathology evident on the various radiological examinations the plaintiff had undergone over the years. As he said in his evidence at (T344) he was surprised "to see such gross degenerative changes as one finds in elderly people in a young person like her". … "it's an old spine in a young person. I don't know why."
Mr Edibam wrote three reports but it is probably only necessary to make reference to his last report dated 7 April 2005. On no occasion in any of his dealings with the plaintiff did he consider that she was inconsistent in her presentation. It is quite clear that he agrees the plaintiff has significant pathology which is consistent with her symptoms. He deals in detail with the examination of various parts of the plaintiff's body at exhibit 12.3 at p 40. I think it is useful to set out his conclusion at p 41 as follows:
"Ms Yeremich has a long history of ongoing back problems since 1986. She said she had suffered from left sided intercostal neuralgia, which was settling down.
She denied having any symptoms as far as her neck or upper limbs were concerned. It would be fair to say the motor vehicle accident probably produced symptoms in an asymptomatic degenerative cervical spine with localised cervical spinal canal stenosis.
The thoracic spinal symptoms had occurred prior to the accident as a result of physiotherapy treatment and she said the pain at that time was like a thin band, but following the accident the pain has been a broader band on the same side.
With reference to her lumbar spine she did have ongoing problems and pre‑existing degenerative changes, and as a consequence of the motor vehicle accident they became symptomatic."
In answer to specific questions, Mr Edibam thought the plaintiff would have required a cervical laminectomy had the motor vehicle accident not occurred, but was unable to put a timeframe upon this. He said he felt the motor vehicle accident had precipitated symptoms earlier than they would have otherwise occurred.
Mr Batalin was the other orthopaedic surgeon called by the defendant's solicitor. He first saw the plaintiff on 14 October 1999, some four months post‑accident.
Mr Batalin's evidence was not greatly different from that of either Mr Edibam or Mr Harper. In his first report of 14 October 1999 he said at p 18 of exhibit 12:
"There is no doubt that she has multi‑level, chronic, mid and lower cervical spondylitic changes which include multi‑level degenerative disc disease and tendency for lower cervical spine canal stenosis which appears to be maximal at C5/6 level.
She also has what I believe to be chronic, multi‑level spondylitic changes effecting most of her lumbar spine with evidence of chronic degenerative changes and left posterolateral disc protrusion at L2/3 and L3/4 level and right posterolateral disc protrusion at L5 S1 level".
In short, Mr Batalin seems to have reached the view that the plaintiff's symptoms and pathology are so complicated and extensive, that he is not able to attribute any particular symptom to any particular event. He felt that the plaintiff's prognosis was "guarded".
Mr Batalin again saw the plaintiff in September 2001 and in his report of 11 September 2001, and again lamented the difficulties the case presented. In the opening paragraph of his summary on p 12 of exhibit 12 he said
"As already pointed out in my last report, Ms Yeremich presents with a complex history of multiple accidents. Without accurate assessment of the patient clinically and radiologically before and after each incident, it is very difficult, if not impossible, for me to state how much of her current problems are attributable to the previous motor vehicle accident of 11 June 1999.
Clearly, with additional current information including the presence of CT scan of the lumbar spine on 28 May 1999, there has been clear evidence of previous lumbar disc pathology. At the time of the assessment there was suggestion of chronic pathology with partly calcified moderate left L3/4 disc bulge and focal right disc protrusion compromising the right S1 nerve root level at L5 S1 level.
Subsequent early investigations which followed the motor vehicle accident on 11 June 1999 also suggests some pre‑existing degenerative changes in the mid cervical region".
Mr Batalin also commented about there being no inconsistencies in the plaintiff's presentation. In par 8 on p 13 he said:
"The patient does have recognisable, multi‑level pathology affecting the cervical, thoracic and lumbar spine. This could contribute to overall disability and ability to work as a solicitor, particularly if it involves sitting for prolonged periods of time in a stooped position, or lifting heavy files or working in situations which subject her spine, including her neck, to repetitive bending, twisting and heavy lifting."
At the end of it, it would appear Mr Batalin's primary difficulty was in determining how much of the plaintiff's disability was attributable to the latest motor vehicle accident. Quite frankly, I have some sympathy for him in that.
In his last report of 27 May 2005 Mr Batalin notes restriction in movement of the plaintiff's cervical and lumbar spinal function. He reiterates the difficulties he referred to in his previous reports, but basically he does not seem to say anything new. He appears to concede the plaintiff would have problems working if prolonged postural immobility was required.
Having briefly reviewed the evidence of Messrs Edibam and Batalin, it is obvious that there is no great dispute about the plaintiff's pathology, nor that she has the symptoms about which she complains. It is difficult precisely to identify what of her previous incidents resulted in what symptoms, but the plaintiff was in employment at the time of the accident, and inferentially was able to cope with the physical demands of that employment as a solicitor at that time. Apparently she has attempted to do work relating to computer work since, with adapted devices put together by her husband, but she has not been able to stick at it because of pain and discomfort. However, there does not appear to be much contest on the medical evidence in this matter relating to the plaintiff's pathology and symptoms. This is so even from the defendant's witnesses.
The only other witness to be reviewed prior to a consideration of the psychiatric evidence is Dr P J Graziotti who is a pain medicine specialist. The plaintiff was referred to him for medico/legal reasons, and he wrote two reports dated 15 November 2002 and 26 July 2004, being documents 22 and 23 of exhibit 11. In fact the plaintiff was referred to Dr Graziotti by the plaintiff's treating orthopaedic spinal surgeon, Peter Woodland. Dr Graziotti explained having carried out a number of uncomfortable pain reducing procedures with the plaintiff in January 2002, comprising root sleeve injections, passive joint injections and localised epidurals. Dr Graziotti has provided medication including Fentanyl patches. When I say prescribed them, he has authorised supply of them by the Health Department to the plaintiff. He thinks the plaintiff will require Fentanyl for some time yet, perhaps two years after this case is completed.
Dr Graziotti's view was that given the plaintiff had had spinal surgery to her cervical spine, that she has a different work capacity in the long term to other people. His view was that:
"Once they have had surgery, and particularly on the cervical spine, and particularly if they are in a job which does involve a lot of computer screen work and that sort of thing, I would think that her future work capacity would be curtailed to some degree, and that it's unlikely that she will be able to work full‑time, which is the implication of that statement."
However, it needs to be noted that Dr Graziotti did not examine the plaintiff. He was there primarily as the person who authorised the continuing supply of Fentanyl as required by Government regulations.
Turning now to the psychiatric evidence, two psychiatrists were called. There was Dr Nick De Felice on behalf of the plaintiff. He first saw her on 5 April 2001. The defendant called Dr Sam Febbo, who first saw the plaintiff in October 1999 upon a referral by the Insurance Commission of Western Australia. I shall refer to Dr Febbo's evidence first, given he saw the plaintiff first.
Dr Febbo first saw the plaintiff in October 1999 and he wrote a report on 2 November 1999 which is document 2 in exhibit 12. I have already reported on the past psychiatric history given to him by the plaintiff. Dr Febbo had two interviews with the plaintiff. He concluded that the plaintiff had a significant susceptibility to depression, and he made a diagnosis that she was suffering from a major depressive disorder. The motor vehicle accident, the subject of this claim and its associated physical symptoms had a significant role in the development of that depression. He said at p 35 of exhibit 12:
"In my opinion the severity of the depressive and anxiety symptoms as described to me, would be associated with a significant partial incapacity in relation to social and occupational functioning and would add to any incapacity related to her physical condition. In addition, it is my view that her mental state would in turn be having a negative impact on her general presentation, including her pain experiences."
It seems to me Dr Febbo's opinions about the plaintiff's situation have what might be called a "Catch 22" feature about them. The plaintiff clinically is significantly depressed and this is caused by her physical disabilities and symptoms and it in turn exacerbates her perception of those disabilities and symptoms.
Dr Febbo said that there was a significant partial incapacity in relation to the plaintiff's work as a solicitor. However, he felt that there was a positive prognosis, and he felt at that stage that there was a low likelihood of permanent disability.
In his next report, dated 12 June 2000, some seven months later, he reports that there was a significant improvement in the plaintiff's mental state, however, her presentation was in keeping with a "partially treated major depression". He spoke of causation of her mental state and observed that some stress was related to "compensation/litigation issues" which were no doubt having a significant impact. At the bottom of p 27 of exhibit 12 he says:
"Whilst it is my view that, from the history I've obtained, there is a partial degree of incapacity related to her mental state, or in other words her psychiatric condition would add significantly to incapacity relating to her physical condition, some form of rehabilitation starting initially at a relatively basic level (having the effect of giving some structure to her day) but in time heading towards a gradual return to the workforce, would be of benefit to Ms Yeremich's mental state".
In his final report dated 6 July 2005, which appears at p 20 of exhibit 12, he reports on the plaintiff's surgery and motherhood. He observed that the plaintiff reported stress relating to the allegation that she was untruthful in relation to aspects of the accident and "this is a particularly serious matter considering she is an Officer of the Court". As to that, Dr Febbo was no doubt referring to the allegation made on behalf of the first defendant by the Insurance Commission of Western Australia that the plaintiff was the driver of the vehicle and not the passenger. That is a clear suggestion that that allegation has had a significantly negative effect upon the plaintiff's state.
Dr Febbo agreed that some of the plaintiff's symptoms fell within the category of a post‑traumatic stress disorder, but he did not think the plaintiff was suffering that disorder. He said:
"Whilst there has been some improvement in Ms Menken's psychiatric condition, the severity of the symptoms reported would be associated with a significant partial incapacity and would add to any incapacity from the physical perspective".
His view was the motor vehicle accident and the deterioration in the plaintiff's physical condition have been significant factors in the deterioration of her mental state. He said that:
"To a large extent the prognosis in relation to Ms Menken's psychiatric condition is related to her prognosis from the physical perspective. Having made this comment, it is likely that there will be some gradual improvement in the medium and long term in Ms Menken's psychiatric symptoms."

And later:
"From a purely psychiatric point of view, a gradual return to part‑time work is not contra indicated."
The psychiatrist called by the plaintiff was Dr Nick De Felice who wrote two reports dated 5 April 2002 and 15 February 2005 (exhibit 11 documents 20 and 21)
Except for Dr De Felice's view that the plaintiff was suffering from post‑traumatic stress disorder which, together with chronic pain, was perpetuating her major depressive symptoms, (and Dr Febbo does not think the plaintiff suffers from PTSD) there is not much difference between the views of the two psychiatrists who gave evidence in the case. Each of them has the view that the legal process does not promote recovery by a person like the plaintiff suffering from the problems she has. Each seems to feel that her situation may well improve when these proceedings are concluded. I do not think it is necessary to express a preference for Dr Febbo's view or Dr De Felice's view on the question of whether or not the plaintiff suffers from PTSD. They agree she suffers from a significant depressive disorder, and that she is incapacitated. They agree that the accident, the subject of this action, is a significant contributing factor. I do not see any point in further analysis of their views in that regard; save for the diagnosis of PTSD they appear to have very similar views.

Assessment

An indication of the first defendant's (or the Insurance Commissions) view's about where the main areas of contention lie in this case can be gleaned from the amount of attention devoted to them in counsel's written submissions.
In just over 20 pages of submissions containing 101 paragraphs, just over 17 pages containing 81 paragraphs, were devoted to the issue of whether the plaintiff was the driver of the vehicle instead of the passenger as she claims.
As can be seen above, I had little difficulty in resolving this matter in favour of the plaintiff.
In the result I am left with the barest indications from the first defendant about issues concerning quantum. Yet, detailed calculations have been articulated on behalf of the plaintiff in support of what is a very substantial claim.
Having said that, the brief submissions made by counsel for the first defendant on damages, as can be inferred from my comments made earlier in these reasons, seem to me to have some force. It would appear that most of the attention of the parties, and disputation about quantum is centred upon the allowance to be made for future economic loss. No specific submissions were made about the quantum of non‑pecuniary loss. As to past economic loss there is a submission there should be more than usual discounting because of the plaintiff's relatively short and problematic pre‑accident work history. No submissions were made about the extent of the claim for special damages.

Non‑pecuniary loss

It is common ground the plaintiff suffered injuries in the motor vehicle accident of 11 June 1999, more than seven years ago. The nature and extent of those injuries, both physical and mental, are fully covered in the extensive medical evidence I have surveyed above. Both counsel and the medical witnesses have spoken of how especially difficult it is to sort the plaintiff's claim, in light of her complicated history and her susceptibilities. Overshadowing the assessment is the feeling I have, touched on by some of the witnesses, that resolution of this claim should have some positive therapeutic beneficial effect upon the plaintiff. Nobody other than the Insurance Commission of Western Australia on the issue of driver identity, has suggested that the plaintiff is untruthful. That allegation itself, being upon a legal practitioner of the Supreme Court, would certainly not have helped her fragile mental state. No doctors doubt her in relation to medical, physical, mental matters.
Undeniably, the plaintiff has had a miserable time in the last seven years. Other than pleading injuries, the treatment, and her disabilities, the plaintiff has not articulated in her statement of claim materials relating to her pain and suffering or loss of enjoyment of life. However, there was an abundance of unchallenged evidence to the effect that her loss in that regard was significant. Obviously the plaintiff's susceptibility to depression must be factored in, as her pre‑accident spinal symptoms. In my view a fair assessment of damages for non‑pecuniary loss would be an assessment of this case as falling in the range of 20 per cent of a most extreme case. That amounts to 20 per cent of $268,000 (Government Gazette 22 April 2005) which is $53,600. Pursuant to s 3C(6) of the Motor Vehicle (Third Party Insurance) Amendment Act 1994, I am only able to award the sum of $52,700.

Past loss of earnings

The calculation put by the plaintiff is based on the assertion that she would have earned the same as Rebecca Sorgiovanni who is a fellow lawyer and good friend of the plaintiff from her university days. It was Rebecca Sorgiovanni who was instrumental in obtaining the plaintiff employment at Friedman Lurie Singh. She explained that the plaintiff was only working for Friedman Lurie Singh for eight to ten weeks prior to the accident. She described the plaintiff as a very good practitioner who had "the best abilities in dealing with clients, and certainly a grasp of legal principles at that time, well beyond mine" (T254). Ms Sorgiovanni started work at Friedman Lurie Singh receiving an annual income of between $35,000 and $45,000 as a restricted practitioner. This is what the plaintiff was receiving in approximate terms. Ms Sorgiovanni has had increments in the years since and presently earns about $100,000 per annum including a car bay and superannuation. There was no cross‑examination of Ms Sorgiovanni.
The plaintiff advances a claim for past economic loss based upon the proposition that her career path would have followed that of Ms Sorgiovanni's, and that she would have worked the entire time since the accident, save for three months maternity leave. The calculations set out in the schedule arrive at a total claim of $269,641.89 up to 7 October 2005. No allowance is made for the cost of child care following the birth of the plaintiff's child. The plaintiff relies upon the good work practices about which Ross Lonnie, a practitioner of the court who was briefed by the plaintiff, spoke. He said the plaintiff did a good job, so far as he observed, during her briefing of him in a significant number of cases while she was at the Aboriginal Legal Service.
The first defendant deals briefly with this claim without specifying figures. In his submissions at par 89 counsel submitted:
"Her work history is not good. She suffered from depression from an early age and had at least one and perhaps two bouts of depression causing significant problems during the course of her employment.
She fell out with the only two employers who had employed her prior to the accident to the point where the first employer (Bradford & Co) dismissed her and refused to move her admission to the Bar. She sued them for unfair dismissal and compensation for depression. A litany of complaints was filed with her application for compensation (exhibit 8).
She then fell out with her immediate supervisor at Aboriginal Legal Service (ALS) to the point where she was either leaving or going to leave as a result.
She then obtained a job at Friedman Lurie Singh & D'Angelo through a friend of hers, Rebecca Sorgiovanni. She was on probation at the time of the accident and her earnings in that period can only be the subject of conjecture. Indeed, it is a matter of conjecture whether she would have been able to stay at Friedman Lurie Singh & D'Angelo given her track record.
Matters to be taken into account in terms of loss of earnings therefore are:
(i)her track record of relationships with her employers;
(ii)the fact that she suffered significant depression on two occasions on two occasions in the past, and perhaps a third occasion at or about the time of her leaving ALS; and
(iii)she had a significant history of low back pain aggravated whilst at ALS by a fall in the bathroom.
Thus there is a significant history of depression and incapacity which would have made the continuation of her employment somewhat doubtful.
Her evidence in relation to having a family was a little unclear but it is probably beyond doubt that periods of time would have been taken off for the birth of her child or children."
I do not see any real difficulty in using the income achieved by Ms Sorgiovanni as a guide to what the plaintiff might have earned had she worked full‑time in the period since the accident. According to Ross Lonnie the plaintiff was competent as a practitioner. But I do have reservations about whether the plaintiff would have worked through that time without having difficulties in any event. She is a confrontationist as she has candidly admitted. She had spinal symptoms that were at risk of exacerbation from time to time, and she had a susceptibility to depression when life became stressful. I cannot agree that she would have been likely to have worked the entire time between the accident and now. The plaintiff came across to me in Court, apart from being intelligent and, as I have found, fundamentally honest, as a person with a difficult personality and her presentation and behaviour was such that I could easily imagine her having periodic incidents of precisely the sorts of difficulties in the workplace that she had pre‑accident.
I think the claim for approximately $270,000 is a fair assessment of an amount that she might have lost had she worked the entire time, but I cannot accept that she would have done so. I think for the reasons above she would have been likely to have had very significant periods out of the workforce. I would only allow her $150,000 for past economic loss.

Past loss of superannuation

The calculations for the loss of superannuation entitlements in the past set out in the schedule assumes continual employment. Obviously, the amount claimed of some $24,210 in toto needs to reflect the award made for past loss of earnings. I reserve the right to invite re‑calculation of this sum should my proposal be flawed, but I propose to discount the sum claimed by an amount similar to that which I have discounted the claim for past economic loss as put by the plaintiff. I awarded in round figures the plaintiff 55 per cent of the amount she sought for past economic loss. 55 per cent of the claim of $24,210 for past superannuation amounts to $13,315 which I award for past superannuation entitlements.

Interest on past loss of earning

I shall follow the methodology set out in the plaintiff's schedule in the absence of any reason why I should not do so. Thus:
$150,000 + $13,315 = $163,315 x 6% x .5 = $4,899.45 per annum = $408.28 per month.
$4,899.45x 6 years = $29,396.70
$408.28 x 4 months (to 7 October 2005) = $1,633, thus $29,396.70 + $1,633 = $31,029.70 which I allow as interest on past economic loss.

Future loss of earnings

The plaintiff's calculations for future loss of earnings assumes that she would have continued her career as a lawyer and worked until the age of 65 years, which from 7 October 2005, is a period of 27 years. A calculations is then proposed based upon the income that she would have been earning presently if she was working, being $100,000 gross per year calculated at $1,265.15 net per week. Using a multiplier of 709.8 (being the six per cent multiplier for 27 years) x $1,265.15 a figure of $898,003.47 is reached which is the calculation "less contingencies for a working life to age 65".
Obviously this calculation assumes the plaintiff is totally and permanently incapacitated from all employment.
I do not agree that this is so. She has been able to do periods of work at a computer, for example, six to seven hours per day for two days in a row. However, she says that she suffers afterwards. She has periods without pain, according to her. By reason of how she presented in the witness box, she does have some capacity to sit down and to do some work. Of course occasionally she would have discomfort but I cannot see why she cannot rely upon medication to assist her. As she conceded, motivation is a problem. The medical practitioners to whose evidence I have made reference have recommended that she exercise and reduce weight. These are all matters that she could do which would enhance her capacity.
Whether or not she would gain employment is another question. I consider, given her circumstances, that she could have difficulty in that regard, putting aside the way she personally affected any interviewer. I think there is a reasonable chance, once this litigation is over, and hoping that she acquires some motivation, that she can do something with her life. I cannot accept that she is totally unemployable in every way. Not all legal work requires computer operation or long or unbroken periods of postural immobility.
The evidence of the orthopaedic surgeon, Mr Woodland, who was her treating surgeon and who carried out the cervical laminectomy at (T300) was to the effect that "maybe by the age of 50 or in her fifties she would have developed increasing significant problems" and that this would have brought her to cervical laminectomy. Thus, notwithstanding the accident, she had physical problems awaiting her.
Putting aside the extent to which her personality, her pre‑accident symptoms and her susceptibility to depression would have impacted upon her future employment prospects, it seems to me that she would be unlikely to have continued in the workforce after she had the cervical laminectomy foreshadowed in her early to mid fifties. She is 37 now. In 15 years she will be 52. I think it might be reasonable to assume on all of the evidence that at best, she would have had about another 15 years employment. That is when she would have come to cervical laminectomy and then had the difficulties about which Mr Woodland and Dr Graziotti spoke.
However, that assumption makes no allowance for her other pre‑accident susceptibilities and problems of personality that she has displayed. The factors taken into account in assessing past economic loss are also relevant here.
A calculation applying the plaintiff's fundamental arithmetic, for 15 years until she turned 52 based upon the figures set out in the schedule of $100,000 per annum or $1,265.15 net per week x 6% multiplied for 15 years for $1.00 per week, no allowance for mortality, is 522 x $1,265.15 = $660,480.
To take account of the contingencies above described, I think a comparable discount to that I applied in the calculations for past economic loss is appropriate, thus 55% of that sum = $363,264, and I allow that sum for future loss of earnings.

Future loss of superannuation

I follow the calculation provided by the plaintiff, therefore $100,000 gross per annum x 9% = $9,000 divided by 52 = $173.07 x 522 = $90,342 – 55% = $49,688 less 30% being as per (Jongen v CSR) for working life to 52 = $34,782 which I allow.

Future treatment expenses

Counsel for the first defendant made no specific submissions about this claim. An amount of some $92,500 is sought for future treatment expenses. This assumes there will be no improvement in the plaintiff's situation, in the plaintiff's symptoms and in her need for medication and treatment. This is in spite of the fact that, following the conclusion of these proceedings, a significant stressor in her life should be no more. The calculation assumes a worst case scenario for the plaintiff in every way. It is true that the plaintiff has required enormous expenditure to date on medications and treatment. She has a very large debt in that regard.
I accept that she will have some needs for future treatment expenses in respect of accident caused disabilities, but she would be likely to have had significant amounts of those expenses in any event by reason of her susceptibilities and her physical pre‑accident condition, and her history. I do not pretend any arithmetic justification but would be prepared to allow her $50,000 for future treatment expenses.

Past medical expenses/special damages

Again, counsel for the first defendant did not make any submissions about this. The schedule provided by the plaintiff is detailed and, so far as I can see, justifiable in relation to the evidence. She takes a very large amount of medication and has done for a lengthy period of time. Nobody has suggested this is unnecessary. She has had a miserable time of it for a variety of reasons including those that can be put down to the accident upon which she sues. Of course she would have, again, been likely, in my view, to have suffered from various ailments during the relevant past period which would have required her to expend funds on medical expenses. It is impossible to calculate how much. But I think it would be fair to allow her a little more, in terms of proportions on the amount claimed, for this head of damages. I would allow her $60,000 for past medical expenses of the $87,702.10 she claims.
Non-pecuniary loss  $ 52,700.00
Past loss of earnings  $150,000.00
Superannuation entitlements  $ 13,315.00
Interest$ 31,029.70
Future loss of earnings  $363,264.00
Future loss of superannuation  $ 34,782.00
Future medical treatment  $ 50,000.00
Past medical expenses/special damages      $ 60,000.00
Total$755,090.70