Yvonne Leighton v Andrew Blundell - [2011] ACTSC 136

YVONNE LEIGHTON v ANDREW BLUNDELL
[2011] ACTSC 136 (31 August 2011)

TORTS – negligence – motor vehicle accident – damages – whether ongoing symptoms result of degenerative condition – reduced capacity to work – loss of past and future earning capacity – damages awarded.

TORTS – negligence – motor vehicle accident – defendant’s negligence materially contributed to the plaintiff’s ultimate condition – general damages – damages awarded.

Civil Law (Wrongs) Act 2002 (ACT), s 100
Workers Compensation Act 1951 (ACT), s 184

Luntz, H., Assessment of Damages for Personal Injury and Death (LexisNexis Butterworths, 2002) 4^th Ed

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Watts v Rake (1960) 108 CLR 158
Chappel v Hart (1998) 195 CLR 232
Shorey v PT Ltd (2003) 197 ALR 410
Purkess v Crittenden (1965) 114 CLR 164
Brenner v Holdom [2011] ACTSC 123
Namala v Northern Territory of Australia (1996) 131 FLR 468
Griffiths v Kerkemeyer (1977) 139 CLR 161
Becker v Queensland Investment Corporation and Anor [2009] ACTSC 134
Fox v Wood (1981) 148 CLR 438
Koeck v Persic (1996) Aust Torts Rep 81-386
Limro Pty Ltd v McKenna (FCAFC, 26 July 1990, unreported)

No. SC 846 of 2006

Judge: Refshauge J
Supreme Court of the ACT

Date: 31 August 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 846 of 2006
AUSTRALIAN CAPITAL TERRITORY )

YVONNE LEIGHTON
Plaintiff

v
ANDREW BLUNDELL
Defendant

ORDER

Judge:  Refshauge J
Date:  31 August 2011
Place:  Canberra

THE COURT ORDERS THAT:

There be judgment for the plaintiff in the sum of $866,266.66.

The parties be heard as to costs.

After an adulthood marred by tragedy and adversity, the plaintiff, Yvonne Leighton, appeared by November 2004 to have turned the corner, returning to the workforce with a job that she appeared to like.

On 18 November 2004, when driving to work, a motor vehicle collision shattered that expectation completely.

As a result of the collision, Ms Leighton suffered injuries which she says have been continuing and have, in particular, disabled her from her employment. As a result, she commenced proceedings for the recovery of compensation for the injuries and disabilities she has suffered.

In the circumstances, liability was accepted by the defendant and in these proceedings was not in issue. The only question before me is as to the damages payable to Ms Leighton to compensate her for the injuries she has actually suffered.

While the defendant agrees that, because of the collision, Ms Leighton should be compensated, he denies that her ongoing medical symptoms and her disabilities are the result of the collision but are, instead, caused by degenerative conditions which are not compensable by him.

A brief life history up to the collision

To understand the whole of this case, it is appropriate to recount Ms Leighton’s personal history up to the collision.

Ms Leighton was born in Crookwell, New South Wales. She is now 56 years old. The family moved to Canberra when she was about four years old. Her father was a drainer and came to Canberra for work.

She was educated at government primary and secondary schools, leaving at about age fifteen or sixteen. While at school she had worked at a local pharmacy on Saturday mornings and when she left school worked in a local dental practice as a dental nurse.

After about twelve to eighteen months she gained employment as a clerical assistant in the Department of Air.

In 1972 she married Glen Luton, a mechanic with a local car dealer. They had one child, Rachel, and Ms Leighton ceased work for about two years. She then returned to work, this time in the Bureau of Statistics as an assistant training officer. Around this time, her marriage broke down and the marriage was terminated.

In 1976, she re-married. With her new husband, Mr Dainty, the local Queanbeyan postmaster, they had one child, Brooke, shortly after. She took some time off work. That marriage also broke down, however, and they separated.

During the separation, she had a relationship with Frank Spulak and a child, Joel, was born. Around this time, Ms Leighton commenced work at a motel in Narrabundah as a receptionist. She and Mr Spulak married in 1983.

In 1984, Ms Leighton joined a company which conducted a number of sports stores selling running shoes and the like. The stores were located in Belconnen, Woden and Queanbeyan. She had a responsibility for the stores, and had six full-time staff and a number of weekend casuals reporting to her.

In the same year, she had a hysterectomy and the next year left her work to become office manager of another company in Fyshwick which converted cars from petrol to LPG. The business employed three or four mechanics but she was not directly responsible for any staff.

Problems, however, developed between Ms Leighton and her husband and they ceased living together, he moving in with another woman. The three children remained living with her. Unfortunately, Mr Spulak killed himself in Ms Leighton’s garage on 30 September 1987. She discovered his body. He left a note, blaming her. He had apparently threatened suicide if she would not take him back.

Ms Leighton sought and received counselling for the effects of this trauma, but, although she had some time off, she kept working, though it was a difficult time for her, especially around Christmas.

At some stage, she commenced work at Bill Lilley Motors at Queanbeyan as she had formed a relationship with the principal of that business, Bill Lilley.

In June 1991, she and Mr Lilley were married. At first, it was a very happy marriage. There were, of course, no children from the marriage, but she had three children by previous marriages and he had two sons, though they were adults at that time. They lived on a farm, which Ms Leighton very much enjoyed.

Ms Leighton continued to work in the office of the business, doing the banking, the bookwork and answering the phones. The business was a substantial one with three other women in the office, three salesmen and a workshop.

Towards the end of the 1990s, Mr Lilley experienced a problem with an investment scheme in which he had been involved. It appears it was a pyramid selling scheme. As they do, the scheme collapsed and the fair trading authorities investigated. They threatened to charge Mr Lilley, but that would have jeopardised his dealer’s and service station licences and so Ms Leighton took responsibility for the failure of the scheme.

This placed strains on the marriage, though Ms Leighton described Mr Lilley as moody anyway. It made things quite hard, however, for six to 12 months.

At some stage, Mr Lilley became involved with the Church of Scientology.

Although she attended the meetings of the Church, which she thought were “very strange”, his involvement put stresses on the marriage. Mr Lilley became a committed Scientologist and pressured her and her son, Joel, to join the Church. She did, in fact, attend an induction course but did not become involved.

Ms Leighton described Mr Lilley as becoming aggressive and violent as a result of these stresses and that he “withdrew from her” because she would not join the Church. He was also violent towards Joel, who was then about sixteen or seventeen years old. Indeed, on one occasion, Ms Leighton said he became physically violent towards Joel and she had to get him out of the house.

At some stage, she stopped working in the business. She was becoming depressed. She also experienced chronic cervical pain from about early 1999, though there was no identified injury that caused it. She was examined in Sydney by a specialist rheumatologist in January 2003.

She also found out that Mr Lilley was involved with another woman, also a Scientologist. At this time, Joel was in America. She travelled to America to visit. While in America, she became unwell and had to seek treatment there. When she returned, she confronted Mr Lilley about the other woman and he told her to leave the house immediately.

Feeling that she had no option, she left. She moved into a townhouse in Jerrabomberra.

In October 2001, Ms Leighton had some bladder surgery. Her general practitioner also treated her for depression and she found this period a very difficult one. She developed agoraphobia, though she did force herself to get out, for example, for shopping.

She applied for, and was granted, a disability support allowance for about 18 months to two years. That allowance was based on regular reports from her general practitioners that she was suffering depression and was described as chronic neck and back pain.

The divorce proceedings were unpleasant. Mr Lilley made threats to her and the proceedings had ultimately to be resolved in the Family Court of Australia. This, no doubt, increased her depressive symptoms.

In August 2000, however, she approached Adecco, a recruitment firm, and was assessed and put on their books.

She was assessed by Adecco as

Very professional presentation, very well spoken, great sense of humour and very chatty and friendly – a bit of a “cack” really – 46 years going on 21!!!! Can be serious when required and has a professional approach.

Ms Leighton did not work between these temporary positions and when she returned to employment in July 2003.

In January 2001, Ms Leighton enrolled in a correspondence course of interior design with the Interior Design Academy. She had a long-standing interest in interior design. At the end of the course, she was awarded a diploma. She has, however, earned no money from this qualification, though she has done some unpaid work for friends.

She was given work to do in Commonwealth Public Service agencies, initially on the switchboard. These positions appeared to continue until about April 2001.

On 29 October 2002, Ms Leighton underwent an x-ray of both hips. As noted above (at [29]), she also experienced chronic low back pain and left lower limb pain. This was not related to specific postures, movements or activities, though it disturbed her sleep at night. She says that she was “driven mad by pain”. No pathology was discovered on investigation, which included neurology review, CT scan of the lumbo-sacral spine and nerve conduction studies.

During her time with Adecco, no medical or similar problems seem to have been noted until the motor vehicle collision.

In about July 2003, she was employed through Adecco at the Canberra Avenue Executive Centre as a receptionist for about nine months. Through another recruitment agency, Omega, she also worked at AusTrade as a visa clerk and receptionist while at the Executive Centre.

In March 2004, Ms Leighton travelled to Thailand to an orphanage for which, through Rotary, she had raised money to assist the diversion of young girls from prostitution and sex slavery. She took a team of five women and was involved in painting the orphanage and teaching English and sewing. She planned to return there at least twice a year.

Some time before the collision, she also worked as a contract administrator for a company associated with the Canberra Executive Centre, not arranged through Adecco. All of these positions meant that she was very busy, working at various places for a full working day and a full working week. She was coping well, though her medical records show some ongoing complaint not of a particularly serious nature.

In August 2004, Adecco referred her to ACTEW Corporation Ltd. She said she was employed there on a full-time basis for an initial period of three months. She says that at the end of that period she was asked to stay on, though the Adecco records show the job was only for the period 30 August 2004 to 31 December 2004 and no evidence was led to support her suggestion of further employment after that date.

It also appears that on 25 November 2004, she submitted an application through Adecco for a permanent position of administration assistant at the Housing Industry Association, but was not interviewed.

On 15 November 2004, Ms Leighton consulted her general practitioner for some tenderness in her left chest up towards the shoulder. An x-ray was taken and some medication prescribed. She also had a colonoscopy following by a gastroscopy in November 2004. She also, at some stage, had an ultrasound investigation but it was found to be normal without any sign of gallstones.

At some stage, Ms Leighton complained of problems with asthmatic breathing but has had no recurrence.

The collision

As at 18 November 2004, Ms Leighton was living at Jerrabomberra, a suburb of Queanbeyan. She was employed in Canberra and was driving to work soon after 8.00 am on that day.

The traffic had become stationary when she reached an incline in the road, past the Harman Naval Station and approaching the Canberra suburb of Fyshwick. She was in the right-hand lane of the westward carriageway, travelling towards Canberra.

The vehicle she was driving, a Mitsubishi Magna station wagon, was an automatic and she had her foot on the brake. She was wearing a seatbelt. She had the car radio on, playing music, and she was singing to it.

Suddenly, Ms Leighton was thrown forward and then backward and forward again. Other than this description, I did not have any evidence of the force of the collision, though it was caused, it appears, by the force of not just one but two cars behind her, one colliding into her and the other colliding into it whether before or after the earlier, I cannot say.

She saw smoke “coming past the car” and thought it was “going to blow up”. She felt she had to get out of the car fast for, if she did not, the car might “blow up” and she would be killed. She left the car hurriedly by the driver’s side door and then fell over, being unable to find her feet.

She noticed that the two other vehicles behind her were involved in the collision.

She had alighted onto the edge of the road and then onto the grass on the median strip between the two carriageways of what was a divided highway. She was clearly unsteady on her feet and fell over.

Ms Leighton could not really see the source of the smoke. She saw the drivers of the other two vehicles talking to each other.

A friend of hers, who happened to be driving to work along Canberra Avenue, saw her and pulled over to assist. Ms Leighton then telephoned her employer and rang her daughter, who was also then living in Jerrabomberra, but her friend actually spoke to her daughter.

Ms Leighton did speak to the driver of the car which had collided into her car and also to the driver of the car behind it which had collided with the one immediately behind Ms Leighton’s car.

It is clear that the driver of the car behind Ms Leighton was negligent and, as noted above (at [4]), liability has been admitted.

Ms Leighton’s daughter arrived and Ms Leighton drove home, followed by her daughter.

Symptoms and medical treatment

When Ms Leighton arrived home, she was clearly distressed and she was physically ill. She was also experiencing a headache. Her daughter then took her to her local general practitioner, Dr Bernard Leung, whose rooms were about a block away from her home. Dr Leung wrote her a medical certificate to the effect that she was not fit for work on that day or the next day and saw her again the following Monday.

By the Friday, she was starting to get very sore along the left-hand side of her neck down to the point of her shoulder and just below the shoulder blade at the back. In addition, she felt pain in her lower back just above her buttocks on the left-hand side and, in her left leg; she experienced numbness and pins and needles in the upper thigh region down over the front of her calf to her toes.

Over the weekend she said she had a continual headache, developing on early Saturday morning to a “dreadful” migraine on the left side of her head which she felt behind her ear and went into her face and to the top of her head. She felt she could not move. She had difficulty sleeping. She dosed herself with Nurofen, a non-prescription analgesic.

She also experienced intense pain in the left-hand side of her neck down the back to just below her shoulder blade. The outer thigh of her left leg went numb and she experienced pins and needles which went down over the front of her calf to her big toe and the next one to it and she felt pain in her low back on the left side.

Over the weekend her daughter helped her, particularly with ensuring she had proper meals.

On Monday 22 November 2004, she saw Dr Leung again. She was clearly not able to return to work and obtained a further certificate from him. She saw Dr Leung again the following Friday.

Between those two appointments she was unable to do very much. She continued to have a very sore neck and shoulder and also experienced the headaches and the problem she had mentioned with her left leg.

Dr Leung prescribed Tramal and Celebrex for her and referred her to Ms Sally Hanrahan, physiotherapist. She saw Mrs Hanrahan on the next Friday also and on two further occasions. Mrs Hanrahan used heat packs and some massage and other treatment which may have been ultrasound therapy. Ms Leighton found that none of this treatment provided either temporary or permanent relief from her pain.

At some stage, she discussed with Dr Leung whether she could return to work and, sometime before Christmas 2004, she discussed the possibility of a graduated return to work, but it did not happen at that stage.

Sometime after Christmas, however, she returned to work but, at this stage, at the offices of Adecco, a recruitment firm, in Griffith, ACT. It involved mainly clerical work, filing and some reception work and she said it was for four half days a week with some restrictions, such as only sitting for fifteen minutes at a time to avoid prolonged keyboard work.

At this time Ms Leighton was taking an antidepressant, Cipramil, but in early January 2005 agreed with Dr Leung to discontinue its use.

On 8 February 2005, Ms Leighton was referred to Lisa Castles & Associates, Rehabilitation and Occupational Health Consultants (Lisa Castles) by the workers’ compensation insurer. That organisation was tasked with getting Ms Leighton back to work.

In late February or early March 2005, she had been referred to a different physiotherapist, Mr Jac Cousin. Mr Cousin examined her and considered that physiotherapy would not help her at that stage. She only saw him once.

On 12 May 2005, she saw Dr Colin Andrews, Consultant Neurologist on referral from Dr Leung because of her ongoing symptoms, mainly the pain in her neck and her migraine headaches. These symptoms had been persisting ever since the collision. She also mentioned her back pain to Dr Andrews.

Ms Leighton said to me that she was, at that stage, intent upon returning to the same kind and intensity of work that she had been doing prior to the collision. She expected Dr Andrews to assist with this.

Dr Andrews carried out some tests. He reviewed a CT scan of her brain which had been carried out on 28 January 2005 and an MRI scan of her lumbar spine which had been carried out on 2 March 2005. These were normal, though the MRI did show a mild abnormality. He carried out a SPECT scan of her cervical and lumbar spine. Dr Andrews said it showed facet joint radiculopathy with marked inflammation in the left C4/5 and 5/6 joints, the latter of which he proposed to treat with facet joint blocks.

Dr Andrews then proceeded with that treatment, but, unfortunately, it failed and he considered Botox injections. While that was being considered, he increased the intensity of the prescribed medication to try and suppress some of her headaches. These included Deseril, a vasoactive agent, and Gabapentin, an anticonvulsant, particularly for the migraine headaches.

Ms Leighton was also referred to a psychologist, Ms Michelle Lavers, whom she saw first on 11 June 2005. She continued to see her on a weekly to fortnightly basis until late 2006 and then four times in 2007 and once in 2008.

She was seen by Ms Lavers principally for pain management but later to assist with her depression and she proved valuable in helping her regain her self-esteem and with returning to driving.

In August 2005, Dr Andrews proceeded with a course of treatment through Botox injections. Ms Leighton found this treatment “awful”. The injections were “nasty”. They did, however, give her some relief, though they did not rid her of pain completely. The intensity of her headaches subsided.

In about July 2005, Lisa Castles then arranged for Ms Leighton to return to work at Adecco, for four hours each Monday, Wednesday and Friday. She was asked to undertake filing. She was not busy, but was tidying up records that needed to be cleaned out and tidied up. There was some data work.

Botox injections are expected to last for three months, but Ms Leighton had further injections in October 2005.

In late 2005, Ms Leighton again participated in a further graded return to work program. Again, the work was at Adecco and was general office duties including filing. It included some reception work. She was not sent out to work for clients of Adecco. Though progress was slow, Ms Leighton was still hopeful of being able to return to full-time employment.

Medical treatment, however, was not seeming to progress and she felt that she had not achieved any lasting improvements.

In November 2005, Ms Leighton decided that she would not have any further Botox injections. She saw Dr Andrews again in December 2005 and again declined to have any Botox injections, though it appears she may have had a further injection of Botox in February 2006. Dr Andrews prescribed various medications, including Mobic. Dr Trinh, another general practitioner at her Medical Centre, later prescribed Lexapro for her depression. By this time, Ms Leighton was quite depressed and was starting to think that she would not return to work. This increased her depression.

That Christmas was hard for her and she felt very depressed and low. That was in part exacerbated because she was told by her supervisor at Adecco that she was not needed at work until January. Her supervisor remembers this a little differently and says she did not recall a negative reaction from Ms Leighton when telling her that there would be no work available until January. It was clear from evidence of her friends that Ms Leighton does not readily share her negative emotions and experiences, so I am prepared to accept that she did feel rejected by this decision, though it was neither intended nor perceived by her employer.

In late January 2006, a further graded return to work program was instituted which was initially for six hours a week, undertaking reference checks by phone with minimal computer work leading up to ten and a half hours per week by late February.

In late January she consulted Dr Andrews again, as she was still troubled by migraines and neck pain. It appears she may have had a further Botox injection in early 2006.

On 18 March 2006, Ms Leighton’s daughter gave birth to twins. Unfortunately, one of the twins died. It had a devastating, traumatic effect on her. She consulted her then general practitioner, Dr Jane Sheedy, and was prescribed a significantly increased dosage of anti-depressant. She was unable to work for some time after that, though this does not seem to me to be a result of the collision.

About the same time, she was referred to the Pain Management Unit of the Canberra Hospital. She attended and was assessed by a psychologist, a nurse and physiotherapist in mid 2006. She also saw Dr Geoffrey Speldewinde in August 2006. She was assessed as suitable for participation in a program of the Unit. She then attended an induction day in February 2007 but moved to Cowra on 31 March 2007 and so was not able to continue with the treatment.

At this time, Ms Leighton was not coping well with her problems. She was acutely depressed and still in pain. She was still getting migraines and had neck and back pain.

Before moving to Cowra, she had been referred for physiotherapy with Margaret Harrap in Queanbeyan. She initially attended on 26 July 2006 and had a total of nine treatments. The treatment consisted mainly of massage. It was, in the opinion of Mrs Harrap, of little benefit for her with little improvement in her objective range of neck movement or subjective pain levels from the treatment.

Because of the nature of the treatment at the Pain Management Unit, namely an intensive period of two to three weeks where daily attendance for five days a week is required, Ms Leighton has not participated. Her residence in Cowra has made that impossible. Neither the workers’ compensation nor third party insurers have been prepared to fund the program. At the time of trial, however, she remained on the list. She, herself, has been unable to fund her participation in the program. There was, so far as she was able to ascertain, no other source of funds from which she could pay for the treatment.

Until moving to Cowra, Ms Leighton continued her attempts to return to work. She was given, and followed, advice about how to manage work, such as having rest periods, not sitting too long at a desk, getting exercise and the like.

As at the date of the trial, Ms Leighton was still prescribed a range of medication.

She was prescribed Tramal for pain relief and Avanza for depression.

She continues to have pain in her low back, neck and head. It is relieved by medication and by lying down. She also manages it by not pushing herself too hard. Her left leg remains painful. She described it as though “steel wool was coming out of the skin” from the lateral side of her left thigh from about the hip down the inside of her shin to her foot to the big toe and the toe next to it. She also has pain in her neck on the left side down to her shoulder; at its least painful she described it as “severe”, at its most painful “dreadful”. It gets worse at the end of the day. She also has headaches on the left side of her head over and behind the ear, ranging from the temple to the front of her face. She experiences them once a week

She also experiences migraines, which makes her withdrawn and become so severe that it makes her vision blurry and gives her problems with her speech. She experienced headaches before the collision but those headaches were not of the severity of the headaches she now experiences.

This limits her activities considerably, both as to recreation and as to domestic chores.

Ms Leighton has also lost weight since the collision, of about seven or eight kilos.

Medical Evidence

The medical evidence seemed uniformly to confirm that Ms Leighton suffered with pain and disabilities that she reported as a result of the motor vehicle collision and that these are ongoing.

Whilst I did not have a formal report from her general practitioners for the period up to trial, I did have the clinical notes they prepared. They supported this view.

Even the defendant’s medical experts took this view, supported as it clearly was by the careful and detailed assessment by Dr Geoffrey Speldewinde and the team at the Canberra Hospital Pain Management Clinic.

Perhaps the defendant’s medical expert most critical of Ms Leighton’s claim for damages was Dr Burke who, while perhaps somewhat agnostic, did not really suggest that her reported symptoms did not exist.

It appears from a fair reading of both of Dr Burke’s reports that he accepted that she continued to experience pain in her neck, back and leg and that she continued to experience headaches.

In his oral evidence, he expressed a more guarded view, commenting that “it’s always difficult to make an assessment on whether the patient is in pain or not”, though he noted that “[c]ertainly there was ... pain related behaviour”. He then commented that while he could not come to a conclusion that someone is pretending, “one can comment on ... the difference between what one would expect and whether the type of behaviour ... exhibited in your opinion is consistent with how this person should behave.” I read both his oral evidence and his two reports and found no such comment.

Mr Gordon Stuart, the other medical practitioner retained by the defendant, also accepted that she was symptomatic, though he considered her fit to resume work. He clearly considered she continued to suffer as he recommended ongoing “active” rehabilitation. He considered her symptoms, however, were the result of degenerative disease.

The real medical issue, then, was as to the cause of her present symptoms. All of the medical opinions suggested that:

(a) Ms Leighton had suffered a whiplash injury on 18 November 2004;

(b) she suffered consequential pain and restricted movement; and

(c) she now suffers pain and restricted movement.

The medical experts relied upon by the defendant, however, assert that the present symptoms and disabilities are the result of a degenerative condition and not a consequence of the collision.

Pre-existing pain(a)

A major difficulty with this case was that Ms Leighton was a poor historian. It is clear that in the period as long ago perhaps as 2000-03, she had a range of symptoms, many of which were similar to those that she suffered in the period after the collision and still suffers though, as Dr Speldewinde sagely noted, there are differences, for example in their focus.

Thus, in her dealings with Centrelink, when she applied for her disability support allowance, she disclosed in her application forms depression, chronic cervical pain from about January 1999, headaches from about February 2000 and backache. Later, she reported agoraphobia and panic attacks.

The reports of her treating doctor, Dr Stuart Haynes, to Centrelink referred to agitated depression together with, on two occasions, acute adjustment disorder and agoraphobia. He also referred on three occasions to neck and back pain or chronic cervical spine pain.

In March 2001, a psychologist employed by Health Services Australia had described her as “subdued, unanimated”, becoming emotional and tearful during the interview and increasingly physically uncomfortable, with severe back/neck pain and associated headaches as the interview progressed. He noted symptoms of depression since about mid 2000 and “somatic features of musculo-skeletal pain in the neck and shoulders”. He also noted weight loss in the previous six to nine months.

The clinical notes from her general practitioners showed that she presented from time to time for pelvic pain, back pain since July 2001, which at one stage was thought to be sciatica, depression, pain in her left hip leading to her left leg and paraesthesia in her middle toe. In October 2002, she complained of pain “in all the joints ... shoulder and neck, elbows, knees, hips” but other than on that occasion, I saw no reference in the notes to neck pain.

In January 2003, she was referred to Dr Lea-Anne May, a Sydney consultant rheumatologist, who examined her and provided a detailed report dated 14 January 2003.

Dr May reported that Ms Leighton (then using her married name of Lilley), complained of chronic low back and left lower limb pain, which, she said, had been present for five years. There was no history of back injury and the pain was not related to movement or position. It was said to limit her standing, sitting, walking, resting and sleeping.

Dr May wrote that Ms Leighton was “constitutionally well” and that neurology review, CT scan of the lumbo-sacral spine and nerve conduction studies discovered “no pathology”. She also noted that Ms Leighton had been diagnosed with depression two to three years previously and treated with Cipramil which was helpful.

Dr May’s view was that Ms Leighton had a “non-specific chronic pain disorder with allodynia and associated neuropathic symptoms in the absence of significant musculo-skeletal or neurological findings on examination and reported assessments”. She recommended against long-term opiate therapy and recommended an exercise program. She also made some recommendations as to medication.

Ms Leighton, however, did not give much of this history to the medical practitioners who were dealing with her problems after the motor vehicle collision, even when they specifically asked about pre-existing conditions. She also did not provide such details in answer to requests for particulars made by the defendant’s lawyers.

It was, however, not suggested to Ms Leighton in cross-examination that she did this deliberately or to hide the past complaints. It was suggested that her reports of her past history was inaccurate but it was not suggested that this was deliberately inaccurate nor that it was intended to deceive the medical practitioners and enhance her case.

Indeed, that it was not deliberate is partly shown by the fact that she did, in fact, sometimes disclose these matters. For example, when she saw Dr Speldewinde on the second occasion, she did refer him to her depression. She also told Dr Burke that she had a past history of low back and left-sided sciatic symptoms and depression. She also told Dr Stuart on her second visit of her lower-back sciatica.

Further, there was no attempt to hide or prevent access to the Centrelink material, the clinical notes of her medical practitioners or the report of Dr May.

Finally, I was able to observe Ms Leighton carefully as she gave evidence for almost two whole days. She admitted the matters alleged. I formed the view that she was honest and truthful to the best of her memory, but that her memory failed her.

It seemed to me that she was just a poor historian. These matters, however, have to be taken into account.

Dr Andrews(b)

Dr Andrews saw Ms Leighton on 16 May 2005. He noted persistent headaches, mainly on the left, neck pain at the base of the neck without associated nerve root symptomatology, constant low back pain which radiates into the left buttock and left thigh and some panaesthesia in the left foot.

He noted that a CT scan of the brain on 28 January 2005 was normal and an MRI scan of the lumbar spine on 2 March 2005 showed some mild abnormality but nothing conclusive. He arranged for her to have a SPECT scan of the cervical and lumbar spine.

His clinical examination revealed that pressure on the facet joints on the left at C4/5 with rotation resulted in muscle tightening and pain.

The SPECT scan, he said, showed both facet joint and degenerative changes and marked inflammation in the left C4/5 and C5/6 facet joints. He said in evidence that the inflammation is that which one finds as a post-traumatic factor in the cervical spine. He, therefore, agreed that it was reasonable to attribute the inflammation to the motor vehicle collision. He did note some degenerative changes, though such changes may be symptom free.

He arranged for facet joint blocks, but they failed and he then considered Botox injections for the neck pain and headaches. The first Botox injection gave a moderately good response, though there was still a fair amount of neck pain. In September 2005, he was optimistic about the improvement from the injection, though he noted the ongoing neck pain.

In October 2005, a further injection was given and medication was also prescribed, particularly to help control the headaches.

In January 2006, he noted that Ms Leighton had become depressed and that she had been prescribed Lexapro. He noted that she was working part-time, though she was still hoping to work full-time eventually.

Though Ms Leighton seemed to think that her last Botox injection was in 2005, it appears Dr Andrews did administer a further injection in February 2006. He noted at that time back pain with referred pain to her left leg. He also noted an earlier MRI showed a probable impingement on the left L5 nerve root.

By March 2006, when she last saw Dr Andrews, she still had headaches, numbness on the left side and ongoing neck pain. She was seeing a clinical psychologist. He described her on medico-legal review in 2007 as having “documented problems in the neck of a facet joint nature at the left C4/5 and C5/6 level. This is still causing her neck pain and cervicogenic headaches”.

At that time, he felt there was a reasonable prognosis and that she should be fit for work in a part-time clerical position.

The cross-examination of Dr Andrews concentrated on the alleged administration of Botox to her prior to the motor vehicle collision. It became rapidly clear he had not administered any Botox to her then and that any pre-motor vehicle collision administration of Botox had not only not been performed by Dr Andrews, but appeared to have been for cosmetic purposes.

In particular, it was not suggested to Dr Andrews that:

(i) his diagnosis was wrong;

(ii) the pain experienced by Ms Leighton was caused by a degenerative condition and not the injury suffered in the motor vehicle collision; or

(iii) his method of relying on the SPECT scan was outmoded and unreliable.

Thus, apart from the fact of different reports by medical practitioners whose opinions had been sought by the defendant and which I could not ascertain that Dr Andrews had seen, there was no real opportunity for him to respond to the medical case put by the defendant.

It seemed to me that I could rely on Dr Andrews. In particular, he was Ms Leighton’s treating doctor. He had a good deal of contact with Ms Leighton, his diagnosis had to be tested in the crucible of his treatment and his opinion was, in fact, supported by a number of the other medical practitioners.

Dr Geoffrey Speldewinde(c)

Dr Speldewinde is a specialist in rehabilitation and pain medicine, having practised in that field for twenty years.

Ms Leighton was referred by her general practitioner to the Pain Management Unit of the Canberra Hospital in 2006. She had completed a questionnaire in about March 2006 and on 1 June 2006 was seen by a psychologist, physiotherapist and registered nurse for assessment.

The psychologist noted that her scores for depression and anxiety were in the “extremely severe” range while stress was “moderate”. She noted that depression and anxiety are “pain aggravating factors” and their management an important part of the pain management strategy.

The nursing assessment reported her current medication, the limitations on her daily activities, the difficulties she had with sleep and her volunteer work.

The physiotherapist also noted the limitations of her activities and that on a disability questionnaire her scores showed “a severe impact of her back and neck pain on her daily activities”. She reported “markedly restricted active ROM of her cervical and lumbar spine due to pain”.

A medical appointment was made with Dr Speldewinde on 23 August 2006. He reported on his examination to Ms Leighton’s general practitioner. He recorded that she denied any previous significant neck or lumbar spinal complaints or major depression. He noted, too, restricted cervical rotation and even more so introflexion and no feasible extension. The lumbar region, however, demonstrated a full range of movements, with only minor variable tenderness. He recommended zygapophyseal joint injections and a specific cervical strengthening program.

He saw her again on 27 August 2007. This time, she did tell him that she had a pre-existing depression since 2000 for which she was prescribed anti-depressants for eight months. She noted that the depression had resolved by the time of the motor vehicle collision.

Dr Speldewinde considered that her present disabilities were “directly related to the effects of the motor vehicle collision” as described to him.

He considered that she had no ability to return to her pre-injury employment or any other form of employment. The main reason for this was her depression, “not assisted by her widespread pain condition”. He made some treatment recommendations.

He did carry out injections into Ms Leighton’s spine. He described this as follows:

Well what I’ve undertaken, your Honour, is – sometimes or even commonly the underlying cause of pain, the situation particularly trauma like a car accident and particularly in the cervical spine, the commonest identifiable cause is that of injury to joints in the neck. And the only means of validly and reliably defining that is by these fine needle anaesthetic injections and determining from the patient’s pain response whether one or more joints is symptomatic. And there is a specific way for – a specific best-recommended technique for undertaking these procedures. They’re very safe and simple and you can get an answer within the day.

Regrettably, this process was not complete at the time of the trial.

He was also referred to the material that he had received from Dr Andrews and described that as “very helpful material” and Dr Andrews as “a good worker. An honest doctor”.

He did feel, however, that Dr Andrews was misled by tradition. He noted that the SPECT scan had suggested that she had some facet joint arthropathy but felt that was “an inadequate and inappropriate way of diagnosing it”. He felt the findings were “misleading” and that it was necessary to rely on the diagnostic joint injections that he had undertaken.

In cross-examination, Dr Speldewinde was taken to the earlier pre-motor vehicle collision complaints. He considered there were differences. As he put it “there may now be a stronger focus of pain at the left cervico-thoracic and left lumbar sacral areas. So there may be a variation of what she had previously which may reflect, for example, an injured joint or disc ligament or top of having aggravated an underlying pain condition”.

It was not suggested to him in cross-examination that his diagnosis was wrong, nor that the pain Ms Leighton suffered was or might have been caused by a degenerative condition.

He was, it was made clear in cross-examination, aware by the time of the trial of the complaints that Ms Leighton had made of her depression and pain before the motor vehicle collision. He also had seen a copy of Dr May’s report. He was, however, not asked whether that changed his diagnosis or whether it otherwise modified his opinion. He did say, in re-examination, that he thought that Dr May may have been trying to imply that Ms Leighton’s then pain was psychogenic.

It seemed to me that Dr Speldewinde’s careful approach enables me to rely on his diagnosis more comfortably and helped me to distinguish the situation Ms Leighton was in before and then after the motor vehicle collision.

As a sidelight, he reacted strongly to the term “somatisation”, calling it “hocus pocus” referring simply to “pain complaints ... for which there’s no identifiable organic cause”, noting that often “identifiable organic causes ... subsequently come to light”.

Dr Speldewinde also noted, which is relevant, that there was a considerable waiting time between initial referral and assessment and then between assessment and participation in the program. The period to assessment was between six and eighteen months and between assessment and participation a further six to twelve months.

Dr Nicholas Burke(d)

Dr Burke was a consultant occupational physician who had been a qualified medical practitioner for twenty-five years and a specialist for twenty years. It was not clear to me whether he was still engaged in clinical practice.

He produced two reports. The first was dated 18 June 2007 after he had made a medical assessment of Ms Leighton. The second, dated 14 March 2008, was prepared following receipt by him of Dr May’s report and certain documents from Centrelink, presumably the reports I have referred to above.

In his first report, Dr Burke noted a prior history of low back and left-sided sciatic problems associated with a significant depressive episode. There was, however, no mention of the neck pain previously suffered.

Dr Burke carried out a physical examination of Ms Leighton and found no observable spasm or guarding of her head or neck, though she complained of tenderness in the lower half of her paravertebral region of the cervical spine and left suprascapula region. The range of movement of her cervical spine was reduced mainly due to pain-related inhibition. The range of movement of her back was slightly reduced. Straight leg raising was possible on the left to 60º on the right to 45º with pain in the hamstrings.

He had access to the SPECT scan which he said showed marked C6/7 and mild L3/4 discovertebral disease and marked left C4 and left C 5/6 facet joint arthropathy. He had access to an MRI scan which showed possible left L5 foraminal impingement. He noted a facet joint block performed at left C4/5 and C5/6 and a left L4 foraminal injection.

He noted her significant ongoing symptoms and fairly severe depression. He also noted the history of low back and left-sided leg symptoms.

His diagnosis was of “a probable musculoligamentous injury to her cervical and lumbar spine”. He felt, however, that other factors were contributing to her ongoing symptoms, including “psychosocial factors and underlying degenerative disease in both her lumbar and cervical spine”.

His opinion was not entirely clear. He felt that certain of the injuries, presumably the musculoligamentous injuries, were caused by the collision. He felt, however, that the pre-existing degenerative disease to her lumbar and cervical spine, as well as psychosocial factors, were “significantly contributing” to her ongoing symptoms and disability.

I was not entirely clear what psychosocial factors he meant. Presumably he included her depression, though it did not seem to meet the “social” part of that reference.

He opined that there would be no significant permanent impairment arising from the collision and that she had the capacity to return to work in a secretarial/administrative capacity. Further she would not need domestic assistance.

In his second report he referred to “additional information” he had received, including the notes from Ms Leighton’s general practitioners, apparently, though only from 18 November 2004. It appears it also included Dr May’s report and the “Centrelink notes”.

He referred to an assessment in 2002 by Dr Haynes in which he “describes neck and back pain associated with her depression” and similarly in 2001. These appear to be references to the treating doctor’s reports to Centrelink.

As a result, Dr Burke considered that Ms Leighton had then a non-specific chronic pain disorder, principally related to her lower back but also to neck issues.

He accordingly said:

In my previous assessment, I indicated that it was probable that Ms Leighton suffered a musculoligamentous injury of the cervical and lumbar spine.
Given the nature of the impact and injury described, one would have expected a fairly rapid resolution of any injuries associated with the car collision. In her situation there have been protracted symptoms and disability.
In my opinion, it appears that the most probable cause for the protraction of symptoms and disability relates to the underlying and pre-existing chronic pain disorder. The chronic pain disorder is likely to be contributed to by psychological and other processes, including degenerative changes in the cervical and lumbar spine.
In my opinion, it is most probable that her ongoing symptoms and disability would relate to the chronic pain disorder.

In his oral evidence, before me, he said that the lack of reference to her earlier neck pain was “dramatically incorrect”. He reaffirmed his later findings and opinions.

In cross-examination, he explained that by referring to “non-specific chronic pain disorder” and by the use of the word “somatic”, he was referring to the fact that multiple sites within the body would express pain. This was a different use of “somatic” to the use by other medical practitioners, especially Drs George and Speldewinde. He also agreed that pain was a frequently found concomitant with depression. He agreed that Dr May had found no organic basis or particular pathology for the widespread complaints of pain made by Ms Leighton.

He did agree that he had no specific information about the period of nine to 12 months immediately prior to the collision. It was unclear whether he had seen the general practitioners’ notes for that period; it seems from his evidence unlikely. In any event, he did not refer expressly to any.

He stated that he disagreed with the diagnosis of Dr Andrews, though he accepted that Dr Andrews had “the advantage over [him] ... in the sense that [Dr Burke] was expressing opinions for the court case, but not opinions upon which [he] would base a clinical decision”.

He also agreed that degenerative changes may be symptom-free, they may cause symptoms or they may sporadically cause symptoms. He also expressly agreed at one point that Ms Leighton has “marked inflammation on the SPECT in the two facet joints” though he then resiled from that opinion, though I did not quite follow why he did so.

He accepted that marked inflammation can be associated with trauma, but added that it can be associated with other events.

Dr Burke considered that Ms Leighton had degenerative changes before the collision, though he could point to no specific investigation or report that showed this. While it is true that degeneration commences virtually upon first walking, it has to be said that most of that is symptom-free. He appeared to be basing his view on a generalisation that he articulated “in a person of [Ms Leighton’s] age one would expect degenerative changes of this nature”

He also admitted that his report was apparently rushed and that, for example, he referred in his report to the SPECT scan to changes at C 6/7 and not to C 4/5 and C 5/6 which Dr Andrews identified as being inflammation caused by trauma.

He also explained it was difficult to assess whether a patient is in pain but he did not appear to suggest that Ms Leighton was feigning or pretending pain. He found a markedly reduced range of movement, which was different from Dr May’s findings that there was no similar range of restriction in January 2003. He also agreed that, unlike Dr May’s findings, he did not find widespread complaints of pain.

He acknowledged that Ms Leighton has ongoing symptoms.

It was difficult for me to make Dr Burke’s evidence compatible with other evidence. The various investigations did show some degenerative change but it seemed mild. While degenerative change can be symptomatic, it can be asymptomatic and the opinion Dr Burke expressed seemed reliant on generalisations, from what one expects generally, rather than from the specific circumstances here.

The report of Dr May appeared to me to show no significant cervical or neck pain. In addition, there was no reference to neck pain in the clinical notes of Ms Leighton’s general practitioners thereafter until well after the collision.

Dr Burke seemed to agree, confirmed by the first report of the Pain Management Unit, that depression had pain as a concomitant, and that then there had been a substantial period where Ms Leighton had of absence of neck pain for nearly two years.

In addition, if the pain was a result of degenerative changes then that had to be so for the low back, lumbar pain also. Here, however, there were radiological findings. There were scans that were conducted both before and after the collision. Both found no relevant abnormality. This is a powerful challenge to Dr Burke’s approach.

I had concerns, too, about the error in Dr Burke’s report and his acceptance of and then resiling from the findings of Dr Andrews. These are small matters, but I take them into account when considering all the evidence and how to evaluate Dr Burke’s approach.

All in all, I prefer the evidence of Drs Andrews and Speldewinde to that of Dr Burke.

Dr Gordon Stuart(e)

Dr Stuart is a consultant neurosurgeon, having practised as such for thirty years. I had no curriculum vitae and am not aware whether he continues in clinical practice. He examined Ms Leighton on 17 October 2005 and reported to her workers’ compensation insurer on 20 October 2005. He re-assessed her on 29 May 2007 and reported to the defendant’s lawyers on 4 June 2007.

In his first report, he found a marked reduction in active voluntary movements in her neck due to pain, but did not attempt passive neck movements. Her straight leg raising achieved 90º with some slight sensory impairment of her left foot. He had access to the CT scan of her head in 2005, the MRI of her lumbosacral spine in 2005, the SPECT scan of 2005 and the CT guided facet block of 2005.

He opined that she had suffered a soft tissue injury from the motor vehicle collision with ongoing headache and neck pain. He also noted she suffered from headaches of cervical origin.

He commented:

Symptoms of neck pain following soft tissue injury or whiplash usually resolve within one month of such an injury. However, Deans Gal, 1987 in Injury 18:10-12 reported that after 12 months following a whiplash injury 6% of patients have constant neck pain and 36% experience intermittent neck pain. Accordingly, ongoing headache and neck pain occasionally occur following such injuries.

He found the features he noted as “consistent with the stated cause”. He also found Ms Leighton fit to undergo a progressive resumption of full duties. He accepted that she had some limitation of recreational and social functioning, but recommended active rehabilitation as “highly desirable”.

In answer to specific questions, he said that these did “not differ from the diagnosis provided”. From the letter of instruction, this appeared to be “whiplash syndrome”. I am not sure exactly what that encompasses. There was a later reference to his own diagnosis of “soft tissue injury following a motor vehicle accident”.

Dr Stuart’s second report was made following a further examination of Ms Leighton and a review of “the available records and file data”. It appears that these did not include the Centrelink documents and Dr May’s report. The letter of instructions did refer to the clinical notes from her general practitioner.

He noted that, on this occasion, he found her extremely depressed and that she was receiving psychiatric treatment. He found her neck still painful, that she continued to experience migraine and still had some residual limitations. He noted that she experienced deep lower back pain which made the tops of her legs hot and with some numbness at the left foot.

He found, again, reduction of active voluntary neck movements because of pain and, again, some altered sensation to the dorsum of her left foot.

His opinion was that she had suffered a soft tissue injury but that her current symptoms were the result of degenerative disease of the cervical and lumbrosacral spine and no longer related to the motor vehicle collision.

He felt her short term prognosis was poor and her long term prognosis was uncertain. He considered she would not require further treatment for the physical aspects of her condition and that her current disability would continue indefinitely. He considered there was no physical reason why she would not resume full work duties.

Since then, he had received a copy of the Centrelink documents and Dr May’s report. No further report was received from him about that material.

In cross-examination, he expressed the view, curiously, that the diagnosis with which he said in his report that he agreed was probably that of Dr Andrews. He did not intend in his report to imply that Ms Leighton was feigning her medical condition or experience of pain.

He considered the CT scan and MRI scan both normal. He eschewed any expertise in diagnosing facet arthropathy. He accepted that the SPECT scan showed inflammation at the C 4/5 and C 5/6 level, but not at lower levels.

He agreed that her present symptoms of pain in the neck and headaches could produce disability for her work. This disability flowed, he agreed, from an underlying either inflammatory or degenerative condition; he considered it was degenerative and not inflammatory. I was not entirely sure why he expressed that preference.

He agreed that marked degenerative changes in the cervical spine are not predictive of pain or disability. He felt, however, that when there were degenerative changes shown on relevant scans and there are symptoms, that was conclusive.

He agreed that whiplash injuries were of varying severity but that he had never operated on a patient for such a condition.

It was clear that he had made an assessment of the severity of the injury from Ms Leighton’s description of the collision, coming to the view that “there were minimal physical forces involved in the accident”. It was also relevant that she experienced headache and neck pain some thirty-six hours later.

He also considered that SPECT scans were not particularly reliable. In re-examination, Dr Stuart expressed the view that the SPECT scan can only demonstrate increased uptake of the dye to the region of the spine. This is consistent with degenerative disease but does not permit assumptions to be made about whether it is due to trauma. He considered further that it was impossible to pick out two areas of the spine, as Dr Andrews had, as being due to trauma from an injury such as experienced by Ms Leighton.

While Dr Stuart has eminent qualifications and gave his evidence carefully and helpfully, it seems to me that he has not had the advantage of the longitudinal experience that Dr Andrews has had in treating Ms Leighton.

Like Dr Burke, he tended to argue from the general to Ms Leighton’s situation without necessarily addressing her particular circumstances, though he properly referred to studies that showed that his generalisation as to the likely time period for resolution of the whiplash injury was by no means absolute and that a small but not insignificant number take very much longer to resolve.

Again, while he rejected the SPECT scan as an appropriate source of evidence for the pathology supporting the diagnosis of ongoing whiplash injury, it appeared to me that it left the position rather neutral than inevitably demonstrative of such degenerative change as would be productive of the ongoing symptoms experienced – and acknowledged by him as being experienced, though perhaps to a lesser degree – by Ms Leighton.

It seems to me, further, that the virtually complete absence of symptoms, at least so far as her neck was concerned, for over 12 months prior to the collision and then the re-appearance of significant neck pain so temporally close to the collision, leads me to prefer the opinions of Drs Andrews and Speldewinde.

Dr Graham George(f)

Dr George is a consultant psychiatrist who examined Ms Leighton for her lawyers and prepared a report dated 22 August 2007.

He referred generally to the collision and to her pain injuries and treatment, which he described as “conservative”. He then noted that, in December 2005, she suffered a marked depression. As a result, he noted, she came under the care of Ms Michelle Lavers, psychologist, receiving mainly cognitive behavioural therapy for her ongoing pain symptoms.

He reported that her mood state had improved, though she still had disturbed sleep, he felt that this probably related as much to pain as to anything else. She had normal appetite and libido but struggled with attention, concentration and memory. She was, he reported, having difficulty with physical activities. At the time, she was still seeing Dr Leung but not Ms Lavers.

Dr George noted that she had not previously seen a psychiatrist. That was the source of some cross-examination, when the period of 2000 to 2003 was drawn to Dr George’s attention. He had not been told of her prior period of depression, but suggested that he may not have, in fact, asked about prior mental health and only asked whether she had attended a psychiatrist, to which the reported answer was quite truthful.

From this examination, he opined that she did not appear pervasively depressed, her thought forms were normal and she did not exhibit psychotic phenomena. Her cognitions appeared intact though she complained of problems with attention and concentration.

His opinion was that she suffered from a pain disorder and major depression that was then in remission with some remaining symptoms, such as poor attention and concentration. He concluded that the psychiatric conditions related to the motor vehicle collision. He also expressed the opinion that she was not fit to return to her pre-injury employment, despite her motivation to find some light administrative work. He also accepted that her social and leisure activities (unspecified, other than a reference to yoga, which, however, she still practised in some form) had been curtailed due to chronic pain. He felt her prognosis was “guarded”.

Dr George also gave evidence before me. When asked about the material he had received, he referred to the report of another psychiatrist, but I received no such report.

He was asked some questions about Ms Leighton’s medication. She was presently prescribed 60mg of Avanza, an anti-depressant. He said it was used to treat major depression and that 60mg was regarded as the maximum dose. He also noted that it had side effects of daytime somnolence or lethargy and weight gain, which can be significant in some people.

He was asked about his reference to Ms Leighton’s depression being in remission, which he described as the situation when the majority of the symptoms of depression have lifted and the person reports an improvement in their mood state and functional capacity. The word “remission”, he said, carries with it an implication of a fluctuating condition with a 50 percent relapse rate. Some people in remission, he said, may never stop using their anti-depressant medication altogether, but remain quite well in remission.

He also noted that major depression could be caused by an external source or caused by a genetic disorder. He also said that pain and the disability flowing from pain can be a cause of depression, such as where a person, like Ms Leighton, may realise they are not getting better and may have to deal with pain over an indefinite period.

He was also asked about other triggers for depression, such as the suicide of Mr Spulak and he agreed that this could send people into a depressive disorder.

He was also asked about the complications of recovery. The evidence was:

MR BARTLEY:         ...if Ms Leighton was able to recover from that event and resume normal functioning, normal work, normal socialisation, would that indicate anything about her mental resilience?
DR GEORGE:            It certainly would. I mean, if she was able to have access to good grief counselling at the time and if she was able to put an event, a tragic event like that into some sort of perspective, then certainly she could recover from it. But I would imagine most people would need some, a lot of counselling and support to negotiate their way through that type of crisis.
MR BARTLEY:         Doctor, in psychiatric terms an event such as that, if the person is resilient and they have the proper assistance, does that become a self-limiting period of depression?
DR GEORGE:            [It] [c]ertainly could, but I think that perhaps in life there can be cumulative stressors that perhaps people may or may not recover from and it’s always difficult to know what contribution different factors make in peoples lives ...

He was then asked to consider the situation where Ms Leighton went through an acrimonious and difficult separation and divorce in 2000 but by September 2003 was able to resume normal social and employment functioning and what that would say about her resilience and he said:

... if she certainly resumed normal functioning in different areas of her life then one could assume that she’d recovered from that and would be a reflection of her resilience.

He also said that if her perception now was that her permanent “lot in life” was to be in pain, disabled and unemployed, it would mean she is more prone to relapse at any time in the future and that because of the risk her medical carers should advise her to remain on anti-depressant medication.

He also thought that cognitive therapy was important for people with an entrenched fluctuating depression.

In cross-examination, he agreed that when he wrote his report he had not been aware that in 2001 Ms Leighton had been treated for a depressive disorder and he agreed that the description of what Ms Leighton had then suffered were classic symptoms of major depression, though it may have been what he termed “reactive depression”.

The report of Mr Badham, the psychologist of Health Services Australia, was read to Dr George and he agreed that it was a more significant history than he had previously been provided and that it showed she had a vulnerability to depression. He also agreed that it was difficult to know whether she was reacting to a constant form of stressful events to which she reacts when each situation arises or whether she has had chronic depression which has not lifted.

The problem with this answer, however, is that it takes no account of the significant period of normal functioning prior to the collision, for clearly her depression had lifted, and on Dr George’s own analysis above, this reflected Ms Leighton’s resilience.

The content of some of the Centrelink forms was put to him and he agreed they showed her to be suffering a depressive disorder, but he could not say whether it was “related to her personality and frustrating levels of anxiety and depression”. He had difficulty, however, in assessing the severity.

He also agreed that his impression was that Ms Leighton had been working from 2001 to 2004, which was not strictly in accordance with the facts, though she had been working during some of this time. He further agreed that he had not been informed of the death of one of her grandchildren on 18 March 2006 and agreed that this would be a very significant event. He said that this would result in a normal grief reaction for most people, but, in the case of Ms Leighton it may have been so severe or prolonged or pathological that it could contribute to a depressive disorder, hence the increase by her general practitioner of her anti-depressant medication was a reasonable and wise precaution.

He agreed that when Ms Leighton left work, and did not work again, this would be a significant event, though he cautioned that it would be difficult to draw any general conclusions about that without knowing all the details.

He confirmed that he had not been given a history of chronic pain disorder prior to the collision and agreed that it would be significant, but made it clear that he relied on the opinions of the other medical practitioners as to the source of the pain. He felt that there appeared to be some physical evidence of injury and had relied on that together with Ms Leighton’s description of her pain.

He did not accept that her previous pain history necessarily cast doubt on his opinion. Dr George said:

... in a situation like this you could also make the argument that because of her past experiences, because of the fact that maybe she has been vulnerable to somaticising her anxiety distress in terms of physical symptoms. She may then be far more vulnerable to a pain disorder when she does perhaps suffer a real injury. I mean that would be one way of looking at it, it would be an alternate way of looking at it. Alternatively you can say well because this lady has complained of chronic pain over a long period of time how can you tell the different between this particular injury and whatever’s been going on with her previously? And at the end of the day when someone like myself is doing an assessment like this often all we’re left with is what the patient or the client is telling us, and secondly what physical information can we hang our hat on to make a diagnosis of pain disorder, so all I can say is that in this case the fact that someone like Colin Andrews had – Colin Andrews the neurologist had seen this lady, believed that she had some underlying pathology as a result of the collision and therefore had treated her. That sort of information was influential in my drawing a conclusion that this lady more than likely on the balance of probabilities had a pain disorder. Now, I haven’t said that she’s got a pain disorder related to a medical condition with psychological injury because that implies ... the psychological factors somehow keep generating the pain disorder. The pain disorder relates to purely her physical condition. The other side of the diagnosis that I’ve made is that she’s actually had a major depression at some stage, but at the time when I saw her, she had no symptoms of that or very mild residual symptoms of that, which did not constitute a condition. So, I mean, that’s where I drew the line.

He agreed that in 2001 she had a significant chronic pre-existing disorder, significant also in terms of disability and a significant medical problem. These extended over a period of years. He was not told of these problems.

He did consider that the physical evidence was important for, without it, he would have found it difficult to sustain a diagnosis of pain disorder “with the exception that we all have to realise that pain is a subjective phenomena [sic]. It can have psychological representation at least”.

He was also referred to Dr May’s report and considered that it would have made it hard to come to the conclusions he had, though he confirmed that on the history he had, he diagnosed her as suffering a major depression, though at the actual time of examination he did not find a major depression.

In re-examination, the period of September 2003 to the collision was referred to and the description of her as having returned to work “bubbly, ebullient, switched on, motivated, able to relate easily to people, managed stressful situations, performed a range of administrative and reception work, was ... self started and that persons who observed her at work had no comment to make whatsoever about any signs of depression or disability” and he opined that that “certainly tends to represent a huge increase in functional capacity and quite a change from the type of representation she’d had between 2000 and 2003”. When it was pointed out that the bitter divorce was involved between 2000 and 2003, he added “the important point to mention is that often people can somaticise their stress in times of personal distress.” He explained:

... people under stress somaticise their distress. It’s a form of internalisation whereby for whatever reason the painful notions can’t be expressed in different – in a way that’s going to be adaptive so often i[t] can become a maladaptive way of seeking help and support and so it’s not uncommon that at times of stress for people present [sic] with somatic complaints that may not have a pathological basis.

His evidence continued:

MR BARTLEY:         And Doctor in amongst the forms that is the Centrelink material that you’ve been cross-examined about - - -?
DR GEORGE:            Yes.
MR BARTLEY:         if I suggest to you that in a number of areas the assessment was of depression leading to back pain, weakness and the like- - ?
DR GEORGE:            Yes.
MR BARTLEY:         that would be precisely the somaticisation to which you refer?
DR GEORGE:            Well that’s correct... And often...
... it can be the basis of a pain disorder associated with medical condition and psychological factors.

He further agreed that “much of the way she presents could be seen as a form of somaticisation” and later “she has had a very difficult life and she’s had a number of very serious psychosocial stresses over time and more than likely there is a strong somatic component [in] the way she presents or has presented over time”.

His evidence was then summed up by him saying:

I think the best way for me to answer it is to say that the scans were done five months after the event and that may be significant in that the question arises, can a person develop these sorts of conditions as part of a degenerative process that may be going on for years? And again, I’m not the expert to ask that question of. The other question that it raises in my mind is that Dr Andrews says that there’s probable nerve impingement. You may get a radiologist who could argue against that, I don’t know, but certainly in terms of the information provided that’s all that I have to go on when I read a report and try to assess somebody with chronic pain. The only way that I can make sense of the whole thing and all the additional information that’s been presented as well is that this lady had who appears to be a longstanding depressive disorder that waxed and waned over time according to life’s circumstances and that she also tended probably to have some perhaps physical condition which precipitated her towards developing neck and back pain. And that within the context of all her life stresses, she may well have somaticised a large element of her distress. And then I move on to the collision and what I’m looking for is identifiable pathology that’s occurred as a result of the collision and so all I have to go on are the results of the scans in, I think, March the following year ... And from that I draw the conclusion that, well, there appears to be some new injury. And perhaps if you had that injury in somebody who didn’t have her life circumstances they may well have moved on much more quickly or more adaptively. But we know that she’s got this vulnerability for depression and that may make her far more susceptible to succumbing to symptoms whether they be of a somatic origin or of a real, organic origin. And her ability to make adaptive responses to move from her situation is extremely limited. So I mean, that’s my overall impression but I’m very dependent on the validity of the information provided by the scans. And I guess if you get people talking in terms of probabilities, what they’re saying is they’re relatively sure but it may well be that another specialist in the area could argue against it. So I’m sorry to cloud the situation, but that’s about as clearly as I see it.

The upshot of this evidence is that, as I have accepted the evidence of Dr Andrews and Dr Speldewinde, I would accept this evidence of Dr George which not only puts the pre-collision medical situation in perspective but also places Ms Leighton in a vulnerable position at the date of the collision. That may explain the severity and prolongation of her response to the collision itself.

As with the other medical practitioners, it seems to me to be very important that the longitudinal perspective is accurately assessed, namely that while the period of 2000 to 2003 shows some similarities with the post-collision period, it is not appropriate to collapse the two periods when there is a very significant period between 2003 and 2004 which is vastly different, both medically and in her presentation.

General practitioners(g)

To evaluate the causation issue fairly, it seems to me that it is necessary to examine the clinical notes for the period of 2003 to 2004.

I did not find it easy to decipher all the notes, but they showed that between 14 January 2003 (when she saw Dr May) and the collision on 18 November 2004, she visited 22 times.

On 29 January 2003, she discussed Dr May’s report and was, it appears, doing her exercises and her pain was “tolerated by Tramal”. Thus, at this stage, there were certainly discussions about pain as there were the next day on 30 January 2003.

On 8 July 2003, when she had lost her court case, she complained of pain in both her hips and her back, but she had stopped taking Cipramil.

On 22 July 2003, she felt depressed and went back on to Cipramil.

On 2 August 2003, she had a booster injection.

On 18 August 2003, however, she complained of nausea and was labile and depressed at her illness, stressing about her son leaving. She was tender on the shoulder region and in her lower back. An endoscopy was arranged.

The next day, she discussed a gastroscopy in a couple of weeks.

On 28 August 2003, she complained of diarrhoea and lower back pain.

On 3 September 2003, she complained of nausea but there was no mention of pain. The next day, she complained of gastritis but not of pain.

Her next appointment, 10 September or October (I could not tell) 2003, was in relation to nausea and with no reference to pain as with the appointment on 21 October 2003.

On 23 December 2003, she complained of headaches but no other pain and arranged for immunisations which were given on 20 January 2004 and 17 February 2004.

On (probably 26) February 2004, she consulted about some ear problems and sleeplessness but no other reference to pain.

On 8 April 2004, she consulted about a weeping sore eye and a cut to her left hand.

On 24 June 2004, she again complained of vomiting and diarrhoea but made no mention of pain.

In early October 2004, she visited her doctor to deal with a finger crushed in a car door.

On 14 October 2004, she attended her general practitioner again but the notes were illegible, though doing the best I could there was no reference to pain or depression.

On 20 October 2004, she attended for a skin check for sun damage and there was a discussion about the use of Botox but clearly in a cosmetic context.

On 15 November 2004, she complained of nausea and vomiting again. She was not stressed or depressed. It was noted that the gastroscopy and endoscopy were normal as was an abdominal ultrasound. There was no reference to pain.

Thus, in the period prior to the collision, so far as attendances on her general practitioners were concerned, there were no complaints of neck pain after January 2003, no complaints of shoulder pain or back pain after 18 August 2003 and no complaints about depression after 18 August 2003.

Her last prescription for Tramal appears to have been on 8 July 2003 and for Cipramil, on 22 July 2003.

These confirm, it seems to me, a very substantial period during which she was relatively pain-free and free of depression. These findings are significant and re-inforce the view that there was no continuity between the pre-collision medical conditions and the post-collision medical conditions.

(h)Other observers

In this context, the evidence of Mrs Roslyn Pam Thomas was powerful. She was Ms Leighton’s supervisor while she was working at the Canberra Business Centre. She clearly had quite regular contact with Ms Leighton in those circumstances probably on a daily basis and over a period of at least seven months between 2003 and 2004. The precise dates were not clear, though it appears Ms Leighton commenced there in early September 2003 and Mrs Thomas left in the final quarter of 2004.

In that time, she was impressed with Ms Leighton’s work. She described her as “a very good employee, one of [the] better ones ... reliable ... brilliant in her role ... she did what the role required and she did it with flying colours”.

She was extensively cross-examined about the pre-collision medical problems that Ms Leighton had experienced and reported to her medical practitioners. For the most part, she was unaware of them. Her response was that Ms Leighton “looked healthy, she worked well, she turned up for work every day, she performed her job”.

That Mrs Thomas was unaware of these medical conditions is not really to the point. Most were experienced well before she knew Ms Leighton. It seemed to me that her evidence was directed to the capacity of Ms Leighton to perform her work and to present as a competent, pleasant work colleague able to discharge the duties of her employment.

In any event, most of the medical complaints were of issues that had occurred well before this period of work and those that occurred between September 2003 and November 2004 were of a somewhat different kind: headaches, gastritis, sleeplessness, nausea, vomiting and diarrhoea, earache and weeping eyes. These seem to be rather the ordinary vicissitudes of life than the chronic pain and deep depression that had characterised Ms Leighton’s health between 2000 and 2003.

That Mrs Thomas was unaware of these or the earlier problems does not seem to me to diminish the value of her evidence. It was clear that the friendship between the two women, which might have raised an expectation of knowledge of existential health problems, post-dated the period when they worked together. As Mrs Thomas put it, “she appeared to be healthy, she did her job”.

Indeed, despite the significant health problems between 2001 and 2003, it was the plaintiff’s case that she was quite well and capable of working hard and successfully between August 2003 and November 2004. Mrs Thomas’ evidence supported this and her lack of knowledge of earlier medical problems did not undermine that.

At one stage, it was suggested that Ms Leighton had back problems while she was working between September 2003 and November 2004, but I could not find any support for this in the medical notes of her general practitioner.

Mrs Thomas also noted a significant change in Ms Leighton after the collision, conceding a lot of things and “not bowling like she used to be”. She had, she said, lost a lot of her confidence, and “the spark” that used to be in her life. She had also changed physically and for the worse.

It was suggested that Mrs Thomas was a partisan witness, an advocate for Ms Leighton who lacked objectivity. I did not find that to be so. She was clearly now a friend and I take that into account, but there was nothing in the other evidence that supported any rejection of her evidence. Indeed, it seemed to be generally to be supported.

The view Mrs Thomas had of Ms Leighton as a worker prior to the collision was echoed by Ms Donnetta Michelle Norris, company secretary of ACTEW Corporation Pty Ltd. She described her as “conscientious, she was good fun to have around, she would do anything that was asked of her”. She said she displayed no physical limitations.

It was also suggested by Mr G Stretton, counsel for the defendant, that Ms Norris saw Ms Leighton after the collision and observed no change in her. That was based on the following evidence:

MR STRETTON:        Ms Norris, you gave some evidence about your observations of Ms Leighton and you described her as bubbly and happy-go-lucky and well presented et cetera?
MS NORRIS:             M’mm.
MR STRETTON:        And I assume that the related to the entire period of her employment with ActewAGL, did it?
MS NORRIS:             With ACTEW Corporation, yes.

Apart from the fact that this evidence does not say that, there are two other problems with the conclusion sought to be drawn from it. In the first place, Ms Leighton said that she did not return to work at ACTEW Corporation, but went to the Adecco office in Forrest. In the second place, Ms Norris had earlier given the following evidence:

MR BARTLEY:         Ms Norris, you have had no personal contact with Ms Leighton since her collision?
MS NORRIS:             No.
MR BARTLEY:         No. You don’t know her personally?
MS NORRIS:             No I do not.

Ms Michelle Lavers(h)

In June 2005, Ms Leighton was referred by her workers’ compensation insurer to Ms Michelle Lavers, clinical psychologist for counselling and assessment.

She saw her on a weekly or fortnightly basis until 15 December 2006 and thereafter on a number of occasions in 2007 and 2008.

Again, Ms Leighton did not report to Ms Lavers any major medical or psychiatric history prior to the accident, though she did tell her of the suicide of her husband and the troubles with her more recent divorce, including the need for some grief counselling and anti-depressant medication.

Ms Lavers’ reports recorded her opinion that Ms Leighton’s injury had led to significant distress and impairment across a number of areas and to her having to cease working. She considered her primary presenting problem was chronic pain, with symptoms consistent with a diagnosis for a Pain Disorder. She felt it was important for Ms Leighton to continue with her physical rehabilitation plan and then provided her with treatment within a cognitive behavioural therapy framework, with the intent of providing her with active self-management to treatment and increased adaptive coping.

By March 2006, Ms Lavers felt that Ms Leighton had developed symptoms of a Major Depressive Disorder, which seems to have been generated by her difficulties with lifestyle and work adjustment. She had little improvement in her condition and regarded the direction not to return to work in January 2006 as evidence of her being unable to contribute effectively and meaningfully in the workforce. Her family situation increased some of these difficulties.

She felt it was important for her, if possible, to try to return to work and to maintain her anti-depressant medication.

Ms Lavers also gave evidence before me. She acknowledged that there was a significant relationship between pain, especially chronic pain, and a person’s psychological situation. Chronic pain, she said, erodes a person’s psychological defences and the energy and capacity to engage in daily activities, work and to be productive.

She noted that people who have incidents of depression can return to full functioning though an earlier episode can put them at greater risk of relapse and the severity and frequency of episodes can render people more vulnerable to future episodes.

That, however, seems to me not to reduce the liability of a tortfeasor for subsequent episodes if that has been brought about, or triggered, by the subsequent tort.

She acknowledged that pain can be an additional stressor leading to depression and also, conversely, that psychological factors can have an important role in the onset and severity of pain. In this, she appears to have been consistent with the opinions expressed by Dr George. Indeed, this approach may provide some clue to the fact that, between 2000 and 2003, Ms Leighton experienced depression and chronic pain without any apparent diagnosable pathology.

It was suggested to her in cross-examination that she differed from the criteria stated in the Diagnostic and Statistical Manual of Mental Disorders (4^th ed) (DSM-IV), but it seemed to me that the criteria were more flexibly expressed than suggested using phrases such as “often follow”, “may play a more significant role” and “may play less of a role”. Ms Lavers felt that depression “is a very complex factor [sic] psycho-social stresses of a biological disposition and ... there are many factors which impact on a person”. I accept that and that such a view is consistent with DSM-IV.

Having said that, I also accept that Ms Leighton was likely to have suffered depression following her husband’s suicide and in the course of the fraught divorce and that these episodes would have rendered her quite vulnerable to further episodes.

In cross-examination, Ms Lavers agreed that it would be useful for her to have had the pre-collision history that she did not get from Ms Leighton, notwithstanding that she had received from Ms Leighton references to the major factors (suicide, divorce) that led to her medical condition. Nevertheless, she made the strong point that she was treating Ms Leighton for the presenting conditions and that the previous information, though relevant, was not so important for that purpose and would not have altered her treatment or diagnosis.

It was also significant that the cross-examination which put to Ms Lavers the pre-collision symptoms that Ms Leighton reported, including those to Dr May, did not put to her the period of significant months immediately prior to the collision during which she was relevantly free of symptoms and working apparently quite successfully.

It was, for example, important that she had not made a diagnosis of depression until well after she had first been treating her for the primary presentation of chronic pain. She acknowledged that it was important to have a full history. Of course, in this case, that full history included not only the prior history of pain and depression but the significant remission and return from affliction, which, as Dr George pointed out, is evidence of resilience.

She agreed that if the chronic pain pre-existed the collision that would be important information to determine what had caused the presenting pain but would not have affected her diagnosis. Thus, causation was dependent on a full history, which would also have regard not only to cause but also to contribution and aggravation or exacerbation.

Ms Lavers did only rely on Ms Leighton’s perception that her being unable to return to work as contributing to the development of her major depressive disorder.

Thus, while Ms Lavers’ opinion was not central to my understanding of the effect of the collision on her medical condition and the symptoms she then suffered, it seemed to support the analysis I undertook.

Conclusion(i)

On all the evidence, Ms Leighton has clearly significant pain and disabilities which were affecting her ability to work and, at the time of the trial, completely so. While Dr Stuart was not of that opinion, all the other medical practitioners, including Dr Burke, were of that opinion.

The real question, then, is whether Ms Leighton has established that her pain and present disabilities were “caused or materially contributed to” by the motor vehicle collision: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 (at 514). The cause is a question of fact that I must determine, but in doing so, I should apply a common sense approach to the evidence I have heard and read and which has been summarised above: March v E & MH Stramare Pty Ltd (at 515).

Applying this test, I accept that Dr Andrews and Dr Speldewinde have identified the motor vehicle collision as the cause of her ongoing symptoms and disabilities. While he relies on Dr Andrews to a large extent, Dr George is nevertheless supportive in his analysis of the pre-collision situation in context. Ms Lavers is certainly not inconsistent and may be said to express some support.

It may be, however, that even if there is some contribution to the symptoms and disabilities from her pre-collision situation, it is clear that it was dormant or in remission for a considerable time and that it only re-emerged as a result of the collision.

To this extent, I rely on the principles stated in Luntz, H., Assessment of Damages for Personal Injury and Death (LexisNexis Butterworths, 2002) 4^th Ed (at 1.9.10):

... once the plaintiff has proved that the defendant’s negligence did materially contribute to the plaintiff’s ultimate condition, there is an evidential onus on the defendant to ‘disentangle’ the causes; if it is impossible to do so, the defendant may be held liable for the full extent of the plaintiff’s loss.

In the case of a pre-existing condition that may have caused or contributed to the plaintiff’s disabilities, the case usually cited as authority for that proposition is Watts v Rake (1960) 108 CLR 158 (at 160); see also Chappel v Hart (1998) 195 CLR 232 (at 271; [93] at (8)); Shorey v PT Ltd (2003) 197 ALR 410 (at (420; [46]-[47]). However, as explained in Purkess v Crittenden (1965) 114 CLR 164 (at 168), any evidential burden on the defendant to disentangle the causes should not be confused with a reversal of the onus of proof. The onus is on the plaintiff to prove causation.

I have had careful regard to the evidence of all the medical experts. Clearly, on the evidence of Dr Andrews and Dr Speldewinde, the plaintiff has adduced an evidential basis of causation, which, though relying on the evidence of Dr Andrews, is nevertheless supported by the evidence of Dr George which explains and contexualises the history on which the defendant relied so heavily.

The difficulty I have with the evidence of the defendant’s experts is as follows:

(a) they argue from the general (a whiplash injury should – in all but between 6% and 36% of cases – resolve within a few months of the collision at most) to the particular (the ongoing problems Ms Leighton experiences must be caused by a degenerative condition) rather than looking at the particular circumstances of Ms Leighton in totality and then assessing her situation;

(b) there is no explanation for the very substantial absence of symptoms for, depending on the particular symptoms, up to nearly two years before the collision;

(c) the collision, in any event, is likely to have aggravated any pre-existing asymptomatic degenerative condition, rendering it symptomatic;

(d) the reliance on the report of Dr May is somewhat misplaced, since she found that there was no pathology that explained the pain Ms Leighton was experiencing – “absence of musculo-skeletal or neurological finding on examination and reported assessments” – and does not suggest degenerative disease in the cause of the pain that Ms Leighton was experiencing prior to 2003;

(e) to some extent, it seemed to me they rely on limited pathological evidence which does not seem to me to be wholly supportive of their opinions; though Dr Stuart did say that the results of the SPECT scan supported his view.

I note also that the defendant’s counsel relied on the fact that Ms Leighton was able to drive home after the collision as suggestive that the injury was not so serious as to have caused the ongoing symptoms that she was experiencing. That situation is not, however, infrequently encountered in cases of ongoing and even serious disability. See, for example, Brenner v Holdom [2011] ACTSC 123.

That the symptoms might appear after the collision, even thirty-six hours later, was also accepted by Dr Stuart. It does not mean that they were not related to the collision, though he did suggest that this might assist in determining the severity of the injury from the collision.

Applying the law, then, as I understand it to be, Ms Leighton has satisfied me that the collision is the cause of her ongoing neck and back pain and headaches. Dr Burke did accept that the collision seemed to him to have caused musculoligamentous injury in both the cervical and lumbar spine. In the circumstances, I do not consider I need to distinguish between the two areas.

Loss of Amenities of Life

In her claim, Ms Leighton particularised the following disabilities that might be regarded as amenities of life lost as a result of the disabling injuries in the collision:

Difficulty in engaging in recreational activities with grandchildren;

Anxiety while driving;

Inability to horse ride;

Difficulty in sleeping;

Difficulty with memory;

Inability to participate in planned overseas trips associated with community work; and

Inability to perform voluntary work for Amnesty International.

Some of these were repeated in the letter of 5 February 2007 from her solicitor in answer to a request for particulars from the defendant’s solicitor and included in the Court Book.

I exclude from these the restrictions on domestic tasks.

Although there were a number of references to Ms Leighton being active prior to the collision, I had only limited evidence about these matters. There was some evidence about the activities that Ms Leighton enjoyed.

She said that over the years she engaged in horse-riding, yoga, motorbike riding, tennis and squash. She described herself as an active person before the collision. I did not, however, have many details about those activities or the extent of them.

Her tennis was played from time to time with her grandchildren. I accept she can no longer do this.

A number of her activities were those she engaged in while she was married to Mr Lilley and lived on a farm. These included a lavender farm and ginseng farm. It appeared to have included horse riding. It seems to me, however, that, once she moved out from the farm, these activities were lost to her. It was not the collision that caused this. This also included some work she did with the cattle on a cattle Wagyu Stud.

Similarly, it seems clear she gave up horse riding as a result of the pre-collision difficulties she was experiencing and not because of the collision. There was no evidence that she took it up again in 2003, perhaps, indeed, because it was also an activity she enjoyed on the farm.

Her yoga was a gentle form of yoga and she explained she no longer engages in it in Cowra. It was reported by Dr George, however, that up to 2007 she was still practising yoga daily.

She also gave evidence that on Saturday mornings she would breakfast with friends at Manuka. She was not able to do that the Saturday after the collision. She also used to caddy for an intellectually disabled woman and, again, had to abandon that activity on the weekend following the collision. I did not have other details of the curtailment of these activities beyond that occasion.

In her report, psychologist, Michelle Lavers, did refer to the fact that Ms Leighton’s “social and recreational activities have significantly reduced and she has been unable to undertake overseas travel as part of her community activities”. Unfortunately, no further details were provided as, similarly, they were not provided when later she noted that she “is involved in a wide-range of personal, recreational and community activities and projects”, though she did say that these “include Rotary and Amnesty International where she is actively involved in supporting an orphanage in Thailand”. It was not clear whether the present tense used (“is”, “include”) meant that she was then currently (the date of the report was August 2005) involved in these activities. A later reference in the report gave no further detail.

It is clear that she was enthusiastic about her trip to Thailand to assist in an orphanage there and that her post collision problems had prevented her from continuing her personal involvement that had given her pleasure.

It seems to me that the evidence about interference with her lifestyle was actually quite sparse and while it is clear that there has been a loss of amenities of life as claimed, the evidence is not sufficient to justify a significant contribution to the general damages under this head.

As explained by Kearney J in Namala v Northern Territory of Australia (1996) 131 FLR 468 (at 473), it is inappropriate to make a separate award but to include them in the lump sum for general damages.

Out-of-Pocket Expenses

A schedule of out-of-pocket expenses was tendered without objection. It showed the following:

Medicare$385.65
QBE payments (exclusive of domestic assistance
rehabilitation and medico-legal report fees)  $34,284.49
Michelle Lavers  $4,302.00
Dr Geoffrey Speldewinde  $    776.65
$39,748.79

I shall allow that amount.

Rehabilitation Expenses

As noted above, considerable efforts were extended in attempting to implement a return to work for Ms Leighton. Although ultimately unsuccessful, these efforts did keep her partially in the workforce for some time.

A schedule setting out these expenses, being payments to Lisa Castles and Associates, was tendered without objection. The total was $9,574.10 and I shall allow that amount.

Domestic Assistance

Ms Leighton was also provided assistance with gardening and with home help. Again, a schedule showing the payments up to trial was tendered without objection. It showed the following:

Andrew & Annette Wain Mowing Services  $63.00
Jim’s Cleaning  $1,932.00
Jim’s Mowing   $1,083.00
Molly Maid Cleaning  $1,097.68
Molly Maid Home Help  $1,230.03
  $5,405.71

The amount sought by the plaintiff was actually $10 less than this, but it seems that was caused by an addition error and it seems to me I should allow the correct total amount.

A claim was also made for what was called Griffiths v Kerkemeyer damages, after the decision of the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161, where the court held that a plaintiff was entitled to recover the cost of domestic assistance required as a result of disability caused by the negligence of a defendant, even when provided at no cost to the plaintiff.

As I explained in Becker v Queensland Investment Corporation and Anor [2009] ACTSC 134 (at [204]), the position in this Territory is now regulated by s 100 of the Civil Law (Wrongs) Act 2002 (ACT).

In this case, however, I was provided with no evidence as to any gratuitous services provided by anyone for Ms Leighton apart from a brief reference to her daughter helping her, including with meals on the first weekend after the collision. In the absence of such evidence, there can be no award additional to that referred to above.

As to future assistance, a report was received from ProACT, providing an occupational therapy assessment as to Ms Leighton’s future needs. These were assessed as garden maintenance at $50 per fortnight and domestic assistance for vacuuming, bathroom cleaning and heavier domestic duties at $60 per week.

The author of the report, Ms Deborah Ware, gave evidence and was cross-examined. She is an occupational therapist, a health profession where the practitioners are trained to make judgments about the capacity of patients to undertake daily tasks and how they may be assisted to do so. Ms Ware also had a post-graduate diploma in rehabilitation and had been working in the field of occupational therapy and rehabilitation since 1983.

Ms Ware’s report was based very much on what Ms Leighton told her about her disabilities. In general terms, these were not disputed, though the causation was very much in dispute.

Nevertheless, it was put to Ms Ware in cross-examination that by pacing herself and selecting her times, Ms Leighton had been able to perform some of the domestic activities for which assistance was provided. Ms Ware agreed, though her opinion was that by taking away some tasks, it would improve her capacity to do some other tasks.

The evidence from Ms Leighton certainly was that she did undertake domestic chores, but that she did not vacuum or cook “as often as I used to”.

I did note, however, that she was provided with some assistance around the house and that this was paid for by the insurer (I believe the workers’ compensation insurer) for two hours a week. It seems to me that this is a modest amount which is not unreasonable in the circumstances.

There are, however, a number of imponderables here. If Ms Leighton undertakes the pain management program at the Canberra Hospital, she may not require this level of assistance.

One of the expressed reasons for needing a garden is that she has two dogs. It may be that she will not replace the dogs or will get a smaller dog. I accept, though, that she has been a keen gardener but that does not necessarily mean that, especially in the absence of dogs, a large expanse of lawn, for example, will remain necessary.

Additionally, her life expectancy, from her age of the date of judgment is 29.84 years, but that would mean that the assistance which is replacing what she is or would, but for the consequences of the collision, be able to do until about age 84. It seems to me that it is very unlikely that a woman of over 80 certainly would be mowing her own lawn. She may need assistance then because of age and the frailty that, regrettably, accompanies it, but not the consequences of the collision.

For the garden assistance, I am prepared to allow $25 per week for 21 years. Using the 3% tables (see Luntz, H, Assessment of Damages for Personal Injury and Death p 683), with a discount of 25% for vicissitudes, slightly higher because of the additional real possibilities that she is likely to obtain significant relevant relief from the pain treatment which will enable her to resume gardening and also whether she will have the same need for a large garden, that amounts to $15,300.

As to the domestic assistance, I am prepared to allow $60 per week for 30 years. Using the same 3% tables, with the discount of 20%, because the situation with the dogs is not relevant, that amounts to $49,824.

Thus, for future assistance, I am prepared to allow $65,124.

Economic Loss

Ms Leighton’s economic loss can be divided into various categories which I do for the purpose of ascertaining what compensation she should receive.

(a) Past wage loss

At the time of the collision, Ms Leighton was employed as a Grade 2 Receptionist/Administrative Officer, earning an average of $891.64 gross per week or $46,365.28 per annum.

She had a placement with ACTEW Corporation but that assignment concluded on 31 December 2004. She gave evidence that she expected that the work would continue thereafter full-time.

This appeared not to be substantiated. It appears that the Corporation was proposing to establish the position as a full-time position on its establishment and cease using the arrangement with Adecco. Ms Leighton could, of course, apply and, having been in the position and, it appears, performing it to her employer’s satisfaction, was in a good position to be appointed.

Nevertheless, that was by no means certain. For example, there may have been an applicant from within the Corporation who sought the position and who may have, as a result, had an advantage.

For this reason, I cannot assume that Ms Leighton would necessarily have secured the position.

This approach is supported by the fact that she allowed an application to go forward from Adecco to the Housing Industry Association for a full-time position after the position at ACTEW Corporation had terminated. That her situation was uncertain is shown by the fact that she was not selected for interview for that position.

It is also relevant that from the time Ms Leighton sought to return to work she had secured pretty well full-time work up until the collision. She used a number of agencies as well as Adecco and was prepared to undertake two part-time positions to make up to a full-time position. I see no reason why she would not have continued in that way. Further, she had in the past been employed in relatively responsible full-time positions. What, however, needs to be factored in is that her commitment may not have always been met with actual availability of positions and that, despite her efforts and intentions, there may have been periods of unemployment.

I also note that she was, understandably, very much affected by the death of her grandchild and that this, it appears, caused her to take off two months from work. That does not seem to me to be attributable to the collision.

Her counsel submitted that a total of $147,353.00 for past loss of wages was appropriate up to the trial. While I accept the general thrust of that approach, for the reasons outlined above, I consider that the amount needs to be moderated for the factors to which I have referred, including the prior medical history which makes her more vulnerable in the future.

In all the circumstances, I am prepared to allow $125,000 for past wage loss from the date of judgment.

For the period between trial and judgment, say 136 weeks, at $730 per week, which I reduce for vicissitudes by 20%, I allow $80,000.

Interest on that amount, I allow at $2,000.

(b) Past Superannuation

Ms Leighton claims for the superannuation she would have received on the wages paid had she been receiving the wages I have estimated. At 9%, this amounts to $18,450.00. I allow that sum.

(c) Fox v Wood

Ms Leighton has received $129,564.58 in workers compensation payments. Under s 184 of the Workers Compensation Act 1951 (ACT), she is required to repay that sum. Part of that sum would, however, have been paid by her as income taxation.

The High Court held in Fox v Wood (1981) 148 CLR 438, that she is to be compensated for that sum. It is not to be discounted for contingencies: Koeck v Persic (1996) Aust Torts Rep 81-386. It does not carry pre-judgment interest: Limro Pty Ltd v McKenna (FCAFC, 26 July 1990, unreported).

The calculation provided by the plaintiff’s counsel was in the sum of $14,164.50 and I allow that sum.

(d) Future Economic Loss

Although future economic loss is really a loss of earning capacity and, therefore, really an amount of general damages, it is convenient, and conventional, to deal with it as part of the economic loss of a plaintiff.

It was suggested that Ms Leighton would continue to work until age 75. This was justified on the basis of her intention expressed in evidence to me and also confirmed by the evidence of Mrs O’Donahue.

In general terms, I accept that this is her intention. On the other hand, at the date of the collision, she had no ongoing full-time job and I consider that, as a contract employee, it would be more difficult to secure employment as time passed. In my view, it is unlikely that she would remain employed beyond age 70. I also think, and her counsel agreed, that in these circumstances, a greater discount should be made for the vicissitudes of life.

The wage loss as at 17 December 2008 is $730.09 per week. From the date of judgment to age 70 is between 13 and 14 years. Using the same 3% tables, that amounts to between $410,990 and $436,540.00. In this case, despite the conventional discount for vicissitudes of life of 15%, I consider that the whole of the circumstances of Ms Leighton’s medical and employment history justifies a somewhat greater discount is appropriate, namely 25%. That produces a range of $308,242.50 to $327,405.00. I am prepared to allow $320,000.00. For superannuation for that period, I am prepared to allow $28,800.

Future Treatment Expenses

These amounts were less clear. Ms Leighton has a life expectancy from the date of trial of 31.2 years. The amounts claimed were:

(a)general practitioner car [sic], once a month at a cost of $55.00 per consultation;
(b)medications including Digesics, Nurofen, Neurontin, Avanza, Maxalon, Inderal, at a monthly cost of approximately $207.65;
(c)the cost of intermittent psychological therapy at $176.00 per session;
(d)the cost of intermittent specialist care;
(e)pain management treatment;
(f)travel costs in attending treatment;
(g)gym membership of $1,200 per annum;
(h)intermittent physiotherapy.

This was said to be estimated at $3,750 per annum or $72.00 per week. That needs to be assessed in the light of the fact that the pain management will be, hopefully, a once off treatment at the Pain Management Unit, though, perhaps, with some follow-up.

Doing the best I can, I am prepared to allow $55,000 for ongoing and future treatment.

General Damages

Taking into account the matters relating to loss of amenities of life, it is necessary to assess the amount for general damages which will also include compensation for pain and suffering. There can be no claim for disfigurement and no claim was made for loss of expectation of life.

The collision was clearly very traumatic at the time. Ms Leighton was, initially, in fear for her life.

While her pain has been ongoing, it did not really prevent her working until about 2006.

I have to assume, too, that there is a real chance that the treatment at the Pain Management Unit will significantly moderate her pain in the future.

Taking all these matters into account, I consider that $100,000 is a reasonable sum for this amount. Given that a substantial portion of this is for future pain and suffering, subject to successful treatment at the Pain Management Unit, I am prepared to allow interest on past pain and suffering of $3,000.

Conclusion

The individual components of the award of damages are:

General damages $100,000.00
- interest on past component $3,000.00

Out-of-pocket expenses  $39,748.29
Rehabilitation expenses  $9,574.16
Domestic assistance   - past  $5,405.71
-   future   $65,124.00

Past wage loss, including interest  $207,000.00
  Past superannuation  $18,450.00
  Fox v Wood  $14,164.50
  Future economic loss, including superannuation           $348,800.00
  Future treatment expenses  $ 55,000.00
  TOTAL  $866,266.66

I have considered this sum and the total seems to me to properly reflect the effect of the injuries suffered by the plaintiff in the motor vehicle collision resulting from the defendant’s negligence.

There will, accordingly, be judgment for the plaintiff in the sum of $866,266.66. I shall hear the parties as to costs.

I sincerely regret that the busyness of the court has delayed the delivery of judgment and these reasons in this matter. Nevertheless, I have read carefully the entire transcript and the exhibits tendered at the trial as well as my contemporaneous notes. These have resulted in a good recall of the proceedings and of the witnesses giving evidence, notwithstanding the passage of time.
I certify that the preceding three hundred and sixty-eight (368) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 August 2011

Counsel for the plaintiff:  Mr A J Bartley SC, Mr I Bradfield & Ms L Whalan
Solicitor for the plaintiff:  Ken Cush & Associates
Counsel for the defendant:   Mr G A Stretton SC
Solicitor for the defendant:  DibbsBarker

Date of hearing: 26, 27, 28 February 2008, 29, 30 July 2008 and 15, 16, 17, 18 December 2008

Date of judgment: 31 August 2011