Zhang v Fornito

[2009] NSWDC 143

CITATION:	Zhang v Fornito [2009] NSWDC 143
HEARING DATE(S):	25, 26, 27 and 28 May 2009
JUDGMENT DATE:	29 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the plaintiff against the defendant in the amount of $256,295.33; the parties will be heard on costs before final orders are made.
CATCHWORDS:	TORTS - Motor vehicle accident - Negligence - Personal injury - Physical injuries and developed psychological injury - Liability of defendant admitted - Assessment of damages - Contributory negligence by plaintiff - Causal relationship of injuries to motor accident - Degree of impairment of earning capacity - Domestic assistance
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 83(5), 124, 128, 130(b), 131 and Pt 3.4
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Roads and Traffic Authority v McGregor [2005] NSWCA 388
PARTIES:	Hui Qin Zhang - Plaintiff Salvatore Fornito - Defendant
FILE NUMBER(S):	No 5266 of 2007
COUNSEL:	Mr AJ Lidden SC and Mr RG Hanlon for Plaintiff Mr JB Turnbull for Defendant
SOLICITORS:	Brydens Law Office for Plaintiff Curwoods Lawyers for Defendant

JUDGMENT

1 On the evening of 19 October 2003 at about 8.00pm the plaintiff, Hui Qin Zhang, was riding her bicycle returning home after visiting a friend. In proceeding through a roundabout at the intersection of Redman Street and Gould Street at Campsie the bicycle was struck on the rear wheel by a motor vehicle driven by the defendant, Salvatore Fornito, momentarily after he entered the roundabout. Although not wearing a helmet at the time, no head injury was sustained as the plaintiff fell to the roadway but injuries were allegedly suffered to her neck, left shoulder, back and ankle; the plaintiff herself was not hit by the vehicle. She was transported to Canterbury Hospital by ambulance for review and observation overnight and was discharged the following day. Gradually, over time she became anxious and has not since been able to perform gainful employment.

The claim and defence

2 Liability for the motor accident was admitted by the defendant who conceded breach of the duty of care owed to the plaintiff so that these proceedings were concerned only with the assessment of damages. However, contributory negligence was alleged in the plaintiff failing to take proper care for her own safety, principally by the bicycle not having a headlight and she wearing dark clothing, in the not insignificant amount of 25 per cent. The defendant admitted also that the plaintiff suffered some damages in respect of economic loss and superannuation contributions in the total sum of about $178,000. The plaintiff, on the other hand, claimed damages in the range of $832,000 to $1.188 million being, as described by her senior counsel, a lady who is “forever disabled by back and neck problems, with radiating problems into her leg and the foot problem…it will forever preclude her from any form of work…With the psychiatric involvement she’s capable of doing nothing…She’s got real and quite severe problems.”

3 The original claim by the plaintiff for non-economic loss damages was not pursued by reason of s 131 of the Motor Accidents Compensation Act 1999 (the MAC Act) as whole person permanent impairment was assessed at not greater than 10 per cent.

4 On the issue of the plaintiff’s condition, counsel for the defendant commented she was “not a woman who’s got an enormous disability with her shoulder or her arm. She’s got a lower back problem and…a soft tissue injury in her neck.” As to the psychiatric aspect, counsel pointed to the other and unrelated stressors in the plaintiff’s life which she capably handled and then submitted the accident was not “a huge motor vehicle accident. There’s hardly any scrapes or bruising. To suggest that led to the constellation of psychiatric complaints of which she now makes just beggars belief.”

5 Thus, in applying the MAC Act to the determination of this matter as to the quantum of damages the principal issues arising are the extent of the plaintiff’s injuries from the accident, particularly those of a psychiatric nature, the disabling effects and whether there was any contributory negligence on her part and, if so, how much.

Plaintiff’s background

6 The plaintiff was born on 8 November 1965 in Henan Province, China so that at the date of the motor accident she was age 37 years and 43 years at trial. On completing secondary education in 1982 she attended the Henan Finance University until 1984 and graduated with a degree in accounting. There then followed a period of 15 years of employment to 1999 as an accountant in a flour mill business doing the balance sheets and taxation duties; the company was a relatively large operation as it employed over 600 staff. She married in 1987 and a son, Jin Qi Si, was born in January 1989. The plaintiff left the flour mill in 1999 to take up employment in an advertising agency as a manager responsible for six staff attending to the financial side of the company. She and her husband were divorced in October 2001 whereupon in March 2002 she came alone as a visitor to Australia to see what it was like; her son remained in China with his father.

7 Her intention in coming to Australia was to obtain immigration status and, unable to speak English, the plaintiff undertook a language course by studying at home. After a brief return to China she migrated to Australia in July 2002 and obtained citizenship in September 2005. She remarried in March 2003. Her son migrated from China in late-2004 and lived with the plaintiff and her second husband at a two-bedroom home unit in Campsie.

8 On 4 September 2003 the plaintiff obtained employment as a mushroom packer. Apparently the mushrooms were imported from China in large boxes and the plaintiff’s task was to re-pack them into smaller packets of 100 grams for retail sale; the job could be done either standing or sitting down. Earlier attempts to find a position in accounting, hospitality work or cleaning were unsuccessful and, of course, an inability to speak English limited the plaintiff’s opportunities. Her husband was employed full-time as a truck driver. Her plans were to improve English language skills so that she could return to her chosen field of accounting or to become an agent in Australia for a Chinese television station. Even so, she did not enrol in any formal English classes and tried to learn the language herself by home study.

9 Physically and emotionally, the plaintiff said her health was very good and even during the early period in Australia there was no need to visit a doctor. She and her second husband had a good marriage. She said she did all the housework for the family in the home unit.

10 Mei Zhen Wen gave evidence for the plaintiff. She first met the plaintiff after arrival from China and accommodated her at her Campsie home with her husband and two children. Ms Wen confirmed the health of the plaintiff as good, including emotionally, and said she assisted Ms Wen with housework and looking after the children until the plaintiff married in March 2003 and moved to a nearby home unit at Campsie. Since then they have remained friends and frequently visited each other.

Motor vehicle accident

11 On 19 October 2003 the plaintiff had visited Ms Wen at her Campsie home and left about 8.00pm on her bicycle to travel the short distance home. Her bicycle was new but did not have fitted any lights for illumination, although it did have some reflectors front and back and on the spokes of its wheels. The plaintiff said it was then “quite dark” but as she approached the roundabout concerned at the street intersection there was a street light and she said the light was “normal…I think it’s good, it’s clear.” She entered the roundabout and what then occurred was put by her in this way:

“I almost exited the roundabout, I was hit in my back wheel. I didn’t realise anything when it happened, I was thrown off my bike and I didn’t know anything. I was on the other side of the road, somewhere quite dark.”

12 During cross-examination, the plaintiff admitted to seeing a car on her left side about 35 to 40 metres away when she was in the roundabout, having previously looked for oncoming vehicles and made the judgement, as she said, “that it should be alright for me to go through as I was still riding and I should be able to go through it without speeding up.” On being asked whether she was wearing dark clothing, the plaintiff said “maybe” and then conceded “It must have been dark clothes.” She was not wearing a helmet, there were no lights on her bike and the only reflectors were on the wheels and pedals. Given, as she maintained, that there was a street light at the intersection and a shop on the corner with its lights on, the plaintiff said it was “not really dark because of the light” and disagreed it would have been difficult for anybody entering the roundabout to see her. On her bike being struck by the car, she said she lost consciousness straight away and was unaware whether the car hit her as well as the bicycle – its rear wheel was damaged and the front wheel was as well.

13 Shortly after the accident, Ms Wen received a telephone call that the plaintiff had been involved in an accident at the roundabout and immediately went to the scene and saw the plaintiff on the footpath sitting on the ground covered with a blanket. After the ambulance arrived and the plaintiff was stabilised, Ms Wen accompanied her in the ambulance to Canterbury Hospital where she left after a couple of hours.

14 In his evidence, the defendant said he had been a truck driver for about 20 years. With his wife and eight-year old son he lived in Canterbury approximately 500 metres from the subject roundabout. At the time on 19 October 2003 just before 8.00pm he was asleep at home being due to start a work shift at Flemington Markets at 1.00am the following morning. However, he was awoken by a telephone call from his wife, who was returning with their son after attending a soccer clinic, that she had run out of petrol; he took a jerry can to a nearby service station to obtain fuel and then ran to the car, which was “about three house lengths” from the roundabout, and re-fuelled it. The defendant said it had been raining “pretty heavily” all day but when he got to his wife’s vehicle it was “sprinkling” rain. It seemed, as he said, that his “wife was panicking…stressed out on the situation” and, so, he decided to drive the car the short distance home – as it was, however, he at the time was disqualified from driving due to a prior traffic offence for not wearing a seatbelt. He started the car, activated the headlights and drove towards the roundabout along Gould Street at about 15 to 20 kmh. What then occurred was stated by the defendant as follows:

“I actually looked to my left to my right to make sure I had a clear view in proceeding through to the roundabout and I looked at it twice, actually, before entering the roundabout…there was a shop at the corner (its lights were not on), left hand side, just before the roundabout…I simply looked if I had a clear view to my left to my right and I would have been about a second into the roundabout when I heard a bang…I heard the bang come from my driver’s side front bumper bar, right hand side.”

15 The defendant said he brought the vehicle to a “dead stop”, alighted and saw the plaintiff and her bicycle on the ground. Before the collision he said “I didn’t see a thing.” After the collision he said he assisted the plaintiff to the side of the road; eventually, an ambulance and police officers arrived at the scene.

16 Extensive cross-examination of the defendant occurred with the suggestion that in evidence he had given an untruthful version of the accident and had tried to cheat and deceive those investigating it since it occurred. Of course, this goes very much to the issue of contributory negligence. For instance, in a statement given to his solicitor, Maurice Marshan, in June 2004 in connection with charges brought against him from the subject accident for driving while disqualified and failing to give way to a vehicle in a roundabout, the defendant said at the time “the rain was coming down very heavily and visibility was very poor”; also, he then said his wife’s car had broken down about 30 metres from the roundabout rather than “about three house lengths.” The defendant maintained his evidence here that at the time of the accident it was not raining – if it had been raining heavily then it may be said he was less culpable for the accident than if it was not raining or was only sprinkling. Otherwise, I found the statement of the events to Maurice Marshan to be generally consistent with the defendant’s evidence before me. The fact in the statement he said “I looked but saw nothing in the roundabout” does not, in my view, relevantly clash with his evidence here that he “looked to my left to my right to make sure I had a clear view in proceeding through to the roundabout.”

17 Whether the defendant brought his vehicle to a stop before entering the roundabout in the prevailing conditions was a matter relevant to balancing the respective degrees of blameworthiness for the accident. In evidence before me, the defendant said he did not stop beforehand but entered it at a very slow speed. However, in the traffic offence proceedings before a magistrate he said “I stopped, it would’ve been probably a foot away from the roundabout, and I looked.” In explanation, he said he misunderstood the question here as referring to whether he stopped on the accident occurring and, eventually, could not remember if in fact he stopped before entering the roundabout. There were very many questions asked in testing this aspect. In the result, I think the probability of what occurred is that the defendant did not stop before the roundabout but entered it at a slow speed and then, on the collision occurring, stopped his vehicle. Nevertheless, what is significant is that he “looked” into the roundabout but did not see anything whereas obviously the plaintiff was already present in his path of travel.

18 The ambulance report completed at the accident scene showed the plaintiff’s chief complaint as “back pain” and added “O/A (on arrival) pt (patient) sitting alert and oriented…pt C/O (complained of) pain to centre of back lumbar region. O/E (on examination) GCS (Glasgow Coma Score) 15. pt denies LOC (loss of consciousness) Denies neck pain. No blurred vision. Nil nausea. States pain is to centre of back and not radiating anywhere…”

19 In hospital, the plaintiff said she “couldn’t move…I was in a lot of pain… I couldn’t move…my whole back, my left leg…I was feeling dizzy, nauseated.” She had x-rays and a CT scan of the head after the triage nursing assessment was “nil head or neck injury – C/O pain to lumbar – left calf – left thigh.” Current symptoms were noted of “headache, nausea and vomit, lumbosacral tenderness, left hip pain, left ankle pain.” The radiological investigations disclosed no abnormalities and, specifically, there were no fractures or dislocations of the cervical or lumbosacral spine, ribs, pelvis, left hip or left ankle. On discharge, the plaintiff was given a letter to her general practitioner from Dr Natasha Ching, the hospital’s Emergency Department registrar, who stated a diagnosis of “observation following accident”, review overnight and given analgesia.

Consequences of the motor accident

20 The plaintiff first consulted Dr Gordon Lee, a general practitioner, on 24 October 2003 due to continuing pain in her body. She continues to see him. The initial presentation was for, as Dr Lee said in his report of 5 May 2005, “strong pain she felt all over…the whole of the left side of her back was in pain…a funny ache in her left leg down to her foot which felt numb…unable to raise her left foot…pain was settling slowly but that the leg numbness was intolerable and that she could not sleep because of it.” Reported as taking Panadeine forte and having acupuncture, the plaintiff consulted Dr Lee regularly up to 2 May 2005 on 25 occasions during which period he referred her to an orthopaedic surgeon Dr Alexander Woo, a physiotherapist Ms A Loo, and an occupational therapist Mr F Cou.

21 As at May 2005, Dr Lee reported the plaintiff’s consistent complaints as “low back pain, left lower leg weakness and frustration with her situation” for which Chinese massage was obtained. A diagnosis resulting form the motor accident of lumbar spinal pain from an L5/S1 disc prolapse with nerve compression and a left-sided foot drop and sundry upper body and abdominal pains, soft tissue bruising (since resolved) was made; depressive symptoms secondary to the accident, disability and marital tension were also diagnosed. The prognosis was poor. Dr Lee considered the plaintiff had been unfit for work from the date of the accident and that would continue for the remainder of 2005.

22 A CT scan of the lumbar spine by Dr K Plehwe on 27 November 2003 disclosed disc protrusion at the L5/S1 level with possible mild impingement of the nerve root. Persisting symptoms, mainly on the left side of the body, resulted in the plaintiff consulting Dr Woo on 3 December 2003; she complained of pain in the back and left leg, neck pain and left shoulder pain with numbness in the left arm and left leg. Dr Woo, who had access to the CT scan result, diagnosed strain injuries to the plaintiff’s neck, back and left shoulder. He saw her again on 31 March 2004, as set out in his report of 9 October 2004, at which time the plaintiff had been pregnant for six weeks and considered her fit for light duties and fit for the pre-injury occupation as a packer when her pregnancy was over. Dr Woo noted a history of no pre-existing medical conditions which might exacerbate or have a bearing on the injuries from the motor accident.

23 In the meantime, the plaintiff thought her physical condition was “quite bad” and emotionally she said she was not coping because her husband was “angry with me.” It seems the marital relationship between the plaintiff and her second husband deteriorated due to the pain experienced after the accident and they slept in separate bedrooms; she said he had affairs with other women – eventually, he visited China in early-2004 and on his return the plaintiff said he infected her with a sexually transmitted disease while she was pregnant causing her to have an abortion making her now sterile. They separated in October 2005 and were divorced in 2007.

24 The emotional problems experienced by the plaintiff, one may discern from her evidence, developed into quite some significance and she found herself unable to return to useful employment. Dr Lee referred her to a consultant psychiatrist, Dr Shiu Kwong Law, who first saw her on 7 January 2006 and on very many later occasions for treatment, including regular medication for mood swings and to assist sleep. In late-2006 the plaintiff had a return visit to China where she tried traditional Chinese medicine and ceased the medication prescribed by Dr Law but with negative results. Overall, the plaintiff found Chinese traditional medicine more effective for her physical injuries whereas western stye medicine was preferable for the emotional problems. She commented during evidence that “there are many things happening in my life that make me so unhappy.”

25 At the present time, the plaintiff said “if it's a good day I would go out to walk around with friends. If I feel good enough I go to TAFE or spend some time in bed. I feel dizzy.” Since the subject accident, the plaintiff has moved residence on a few occasions and, at the moment, lives in a home unit at Epping with her son, Mr Si. He is now in Year 12 at Carlingford High School studying for the Higher School Certificate to gain university entrance. However, due to his mother’s condition he provides assistance with domestic chores.

26 The plaintiff said she continued to experience problems in various parts of her body since the accident. She particularised these in this way -

• Chest: Pain which was ongoing but for no apparent reason.
• Neck: Very heavy in the head with weight pressing on neck.
• Arms and shoulders: All in pain and unable to carry a bag on shoulder.
• Back: Crashing or stabbing pain always present.
• Left leg: Always been bad with numbness at night in bed.
• Left ankle: A problem when walking because it is not very flexible and with insufficient sensation.
• Left hip: Painful when sitting.
• Headaches: Continuing, causing irritation and aggressiveness.
• Sleep: Not good.
• Emotional state: Not good.

27 With the physical problems, the plaintiff maintained she could not perform the previous work of mushroom packing or bookkeeping. Even so, she said she enrolled in an English course at Ultimo TAFE in 2007 for 10 hours a week but she has been unable to progress through it because the emotional problems reduce capacity to concentrate and study. Indeed, she said she had concerns the motor accident injured her brain because “blackouts” occurred for no apparent reason causing her to fall to the ground in an unconscious state; these events took place a number of times, requiring attendance by her at a hospital on three occasions. She said “it felt like my mind went blank, and suddenly I couldn’t feel anything around me.”

28 As to her condition after the accident and its alleged consequences, the plaintiff was closely cross-examined. A context was put to her, with which she agreed and as I saw it as well from the total evidence, that before the accident she spoke only Chinese (Mandarin) with no English, married (one son) and divorced in China, educated at a university, professionally employed as an accountant at a flour mill and as a manager at an advertising agency in China, migrated to Australia alone and left family and 13-year old son in China, no employment in Australia for 18 months and with a couple of friends only, employment then doing unskilled manual labour and socially more isolated than in China. In that context she denied suffering any depression or psychological problems before the accident but after it said she suffered depression, fainting, panic attacks and with memory and concentration problems. As she explained “…since the accident, my life changed again. My husband argued with me every day, and he had his truck licence suspended and he blamed me for it, so argued with me every day.” On it being suggested she was exaggerating the extent of her physical and psychological injuries from the accident, the plaintiff responded “No, that’s your opinion” and, specifically, she did not agree the physical injuries from the accident were only minor in nature even though the defendant’s car struck the bicycle but not her.

29 The effect of the breakdown of her second marriage, including the subsequent conduct of her second husband towards her was explored in cross-examination to support a suggestion that it caused the plaintiff distress. It was apparent from her evidence, and she agreed, that he caused her a lot of stress since the separation in that he had an affair with another woman, gave the plaintiff a sexually transmitted disease, removed monies from their joint savings account, threatened both the plaintiff and her son with violence, had an apprehended violence order against him and tried to stop her working; since late-2005 when he returned from China they had not spoken to or seen each other. As to that behaviour towards her, notwithstanding the earlier answer, the plaintiff said “I don’t really find that stressful” other than “when he was threatening me, yes.”

Domestic situation

30 From doing all the housework before the accident, the plaintiff said after it “I couldn’t do anything” and had friends and her husband help her, particularly Ms Wen whom she had visited on the evening of the accident; another friend, Huang Xiao Zhen, also helped as did Bai Ling. On his arrival from China in late-2004 her son, Mr Si, also performed domestic work for the plaintiff. At the present time, certainly after moving residence to Epping, the plaintiff said her son was the main provider of services.

31 Since the accident, the plaintiff estimated the extent of domestic assistance given by the persons concerned (husband, friends or son) has been at least three of four hours a day or “even should be more.” The tasks she finds difficult are ironing and cooking, although she is unable to cope with the heavier work of vacuuming (which she said is done daily) and cleaning bathrooms; shopping is usually done by the plaintiff with friends.

32 The accommodation occupied by the plaintiff and her son, they have changed residence four times since the accident, has always been a flat or home unit with two bedrooms, one bathroom, a kitchen and combined lounge/dining area.

33 Activities at the present time, it is to be emphasised, were identified by the plaintiff in this way – “If it's a good day I would go out to walk around with friends. If I feel good enough I go to TAFE (English classes) or spend some time in bed. I feel dizzy.”

34 Ms Wen said that in the weeks after the motor accident she visited the plaintiff and helped with the chores, such as cooking, cleaning floors, tidying rooms and clothes washing. Although unable to specify how much time she spent, Ms Wen visited the plaintiff at her Campsie flat, as she said, “when I found myself free, I just go there to help her.” After the plaintiff moved from Campsie to Flemington, Ms Wen helped with housework only “very rarely” and understood it was done by Mr Si and another friend of the plaintiff but the plaintiff became more able to do some of it herself.

35 Mr Si described the plaintiff’s health on his arrival in Australia as “very bad” and she spent her days “bedridden.” He said he and an aunt, Argen, did the cooking and shopping, cleaning of the bathrooms and floors and clothes washing. He said he provided about five or six hours per week of home assistance but could not say how much time Aunt Argen spent. After moving to Epping, Mr Si said he was occupied for longer hours in domestic work, like washing dishes, ironing and garbage disposal, which occupied him for three hours each day from Monday to Friday and five hours each Saturday and Sunday – other activities included cooking, cleaning floors, washing clothes and bathroom cleaning; he also gave his mother daily massages for 30 to 60 minutes each. It seemed that in total Mr Si provided about 25 hours per week of assistance at home. Mr Si’s evidence is to be seen in the context that he was in Year 12 doing the Higher School Certificate at Carlingford High School. Coping with studies and domestic work was stated by Mr Si in this way – “I’ll show more concern for my mother when she is upset. I mainly spend time on studies in the evening when my mother is resting.” He denied his evidence as to the amount of domestic work he did was made up or exaggerated.

36 An occupational therapist, Lesley Radbron, assessed at the defendant’s request the plaintiff’s needs for personal and domestic assistance, aided by a Mandarin interpreter, at her home on 31 May 2007 and provided a very comprehensive and detailed report dated 2 August 2007. Ms Radbron was not required for cross-examination and her report was not otherwise challenged or tested. Ms Radbron summarised her conclusions as follows:

“Ms Zhang presents as more functionally disabled than anticipated as a result of her injuries. She is independent in all personal care tasks but has been unable to resume her pre-injury performance of domestic tasks. Her reported restrictions are due to pain.

Her reported inability to complete most domestic tasks, which continue to be completed by her son and friends, is inconsistent with objective assessment findings and observations in terms of her range of movement and postural tolerances.

Ms Zhang has been unable to return to work since her injury and given her limited English skills, ongoing pain and depression she would require assistance from a vocational rehabilitation provider to do so.

It appears that Ms Zhang is self-limiting her functional activity performance in response to reported pain and apparent fear avoidance behaviour. Assistance with personal care and heavy domestic activities is considered reasonable in the earlier stages of Ms Zhang’s recovery. Her reported need for ongoing assistance is in large part due to her ongoing experience of pain and fear avoidance behaviour rather than due to objectively measurable restrictions. Two hours per fortnight assistance with heavy domestic and shopping tasks is recommended in the future if she were living alone.”

37 In the result, Ms Radbron assessed past care and domestic assistance of –

• October 2003 – January 2004: 10.5 hours per week made up of 6 hours for domestic assistance, 3.5 hours for personal care and 1 hour for transport.
• February 2004 – November 2004: 2.5 hours per week for heavy cleaning, laundry and shopping.
• November 2004 – current time: 3 hours per week for cleaning, laundry and meal preparation.

38 As to the future, Ms Radbron assessed 1.5 hours per fortnight of assistance for heavy domestic tasks where plaintiff living alone.

Medical evidence

39 The plaintiff has seen very many medical practitioners for both treatment and medico-legal purposes. The evidence of the opinions expressed was extensive for both parties and it is convenient to deal with each practitioner in turn in summary form.

40 Dr Gordon Lee: Engaged as her general practitioner a few days after the accident, Dr Lee has continued to regularly treat the plaintiff. His first report of 5 May 2005, in which he diagnosed from the accident a disc prolapse at L5/S1 and depressive symptoms with a poor prognosis has been referred to earlier. In a second report of 5 April 2007 he indicated developments in the plaintiff’s condition from May 2005 to March 2007 having seen her on a further 30 occasions during that two-year period. Significantly, Dr Lee commented:

“On Thursday December 1 2005, I took the opportunity to confront the plaintiff and provide her with a frank assessment of her status. She was told that her feelings of being unwell were mainly not physical in origin and to not seek physical disorders in the future before speaking with me. The patient was told that her problem was a function of her high stress levels and her major depression and I specifically explained many common autonomic symptoms of depression and anxiety. She accepted this explanation and I personally saw to it that an appointment to see Dr Law was made (as she had avoided doing so for several months now).”

41 Dr Lee then gave this prognosis:

“Physically speaking, her back problem is now chronic and whilst the patient does not have normal functional abilities, she is certainly able to manage with many basic daily activities. There is no doubt a large functional component (or disease interaction) to her major restrictions and disabilities as the clinical records show. This tends to fluctuate with her moods and other issues happening around her.

Mentally, emotionally and cognitively speaking, I am very concerned at the progression of her developments. In my view, this is her biggest incapacity at present. Certainly her situation is not stable and is associated with a large number of physical symptoms which is causing her even more distress and ‘over-medicalisation.’

She needs good and intensive mental health care including cognitive behavioural counselling and psychiatrist supervised medication.

I believe that she will continue to do poorly because of her uncontrolled depression.”

42 On 26 February 2008, Dr Lee in a third report covering the period of the previous 12 months (during which he saw her on 11 occasions) itemised the plaintiff’s current issues, principally major depression and chronic pain interacting with depression anxiety. He commented on the depression and anxiety state as overshadowing the initial physical diagnosis as to the lumbar spine which he said “appears to be taking minimal attention as she learns to cope.” Dr Lee concluded with the concern “that her emotional problems are taking such a heavy toll on her everyday quality of life and on several occasions a year comes to a crisis point with all the risks to her health that creates.”

43 Dr Alexander Woo: The treating orthopaedic surgeon, Dr Woo, as I have said already, noted in his first report of 9 October 2004 on first seeing the plaintiff on 3 December 2003 that she had suffered strain injuries to her neck, back and left shoulder from the accident. He recorded a disc protrusion in the lumbosacral spine at L5/S1 with possible left nerve root entrapment; however, he did not mention the radiological result of imaging of the lumbosacral spine done at the Canterbury Hospital within one hour of the accident by Dr Susan Gaden which showed “No fracture or dislocation is identified. The bony alignment is normal.” Dr Woo then considered the plaintiff fit for light duties and for her pre-injury occupation when the pregnancy was over. In a later report, after reviewing her on 11 April 2007, Dr Woo said she was unfit for work due to persistent pain in the neck, back and left shoulder with numbness and weakness of both arms and both legs; he did not think the bilateral knee pain was related to the accident.

44 Dr JM Ellis: On 5 July 2005 and 25 March 2008 Dr Ellis, an orthopaedic surgeon, examined the plaintiff and took a detailed history. Dr Ellis found no objective evidence of disease of the nerve roots in the spine but did find an L5/S1 disc protrusion impinging on the left nerve root; he found also the plaintiff had suffered soft tissue injuries but no evidence now of left foot or ankle injury and where there was no radiological evidence of thoracic or cervical spinal injury. Dr Ellis regarded the plaintiff’s disabilities as being chiefly due to the low back injury at the L5/S1 disc level. He considered her not fit for the most strenuous use of the back but with appropriate conservative treatment, exercises and instruction he considered with time that the condition would improve. Surgery was not advised.

45 After reviewing the plaintiff in March 2008, Dr Ellis recorded then complaints in order of importance as depression and pain “all over her body.” He particularised the physical incapacities, obscured by the plaintiff’s mental condition of depression, as low back pain, limited movement in the left hip and shoulder, neck pain, weakness in both hands with no organic cause and left ankle condition not justified for positive assessment. The prognosis was worse than that found in July 2005 but, physically, Dr Ellis considered the plaintiff fit for light work. He emphasised the importance of a physiotherapist in being able to encourage the plaintiff in dynamic back care, that is, by the use of correct techniques for bending, lifting, turning and holding weights.

46 Dr Ian Meakin: An orthopaedic surgeon and Medical Assessment Service (MAS) assessor under Pt 3.4 of the MAC Act, Dr Meakin examined the plaintiff on 18 July 2006 and in his statement of reasons dealt with the history as given by the plaintiff, gave the results of his clinical examination and reviewed the documentation. Dr Meakin concluded as to the injuries found to have been caused by the subject motor accident:

“ Back - musculo ligamentous strain, soft tissue injury/left leg – chronic trochanteric/bursitis

At the time of today’s assessment there is no assessable permanent impairment noted, as the injury has resolved.

Left ankle – strain/left hip – strain

Both these initial listed injuries in my opinion, have clinically resolved and therefore have no assessable permanent impairment to be considered. There is also no specific symptomatology relating to these areas today.

Neck - musculo ligamentous strain, soft tissue injury/left shoulder – strain

It is my opinion that Ms Zhang does not have a direct lesion to her left shoulder. The discomfort that radiates across the left and indeed the right shoulder, relates to her cervical neck injury. There is therefore not a direct left shoulder injury to be considered or assessed.”

47 In the result, Dr Meakin assessed whole person impairment for injuries caused by the motor accident at 10 per cent. In short, Dr Meakin considered the injuries to be soft tissue in nature and as strains which had largely resolved.

48 Dr SK Law: Dr Law was the plaintiff’s treating psychiatrist. He gave oral evidence as well as offering five reports dated 16 April 2007, 22 January 2008, 19 February 2008, 17 March 2008 and 20 April 2009 after seeing the plaintiff on 15 occasions from 7 January 2006 to 17 April 2009. In his initial report, Dr Law found she suffered from a moderately severe degree of major depression following the subject motor accident and, despite regular follow-up treatment with counselling and the use of anti-depressant medications, she was unable to do work of any kind because of the major depression. An MRI of the brain on 19 February 2007 found nothing of significance to explain her symptoms of headaches for 2.5 years with fainting spells and slow heartbeat. Further reports noted the continuation of clinically significant symptoms of depression, with feelings of distress, anxiety and dejection, although she was not suicidal or psychotic. Interestingly, the plaintiff told Dr Law of an episode on 6 February 2009 just as she was about to leave her solicitor’s office when she felt weak in the legs and fell onto the floor.

49 In his oral evidence, Dr Law considered in the coming three years that the plaintiff’s symptoms would remain pretty bad albeit a bit less severe. In the coming 20 years, and although a little unsure, Dr Law said “the depressive symptoms will not increase. It might get a little bit less. Sort of become blunt in the body and the mind becomes blunted to those pain and unhappy feelings.”

50 Significantly, on seeing the plaintiff and preparing his first report of 16 April 2007, Dr Law had not enquired in very great detail about the past events in her life in reaching the diagnosis and prognosis because he considered the role of a treating doctor to be different from a doctor giving a medical forensic report - he said he deliberately did not ask but treated the symptoms described by the plaintiff and to gradually build up a rapport with her over time. As to causation of the plaintiff’s condition, none of Dr Law’s reports expressly dealt with it. However, in cross-examination he said “the motor vehicle accident is the beginning stressor. Subsequently those family stressors and so on are very important.” As to the various events in the plaintiff’s past (born in China, married and divorced in China, age 37 years when migrated alone to Australia, 13-year old son left in China, did not speak English, experienced a different culture, unemployed for about a year on arrival, previously in China had professional employment but only unskilled work in Australia), Dr Law said he agreed it would be important for a diagnosis to know those matters but he did not obtain “great details” and, specifically, did not know the plaintiff’s work history. Indeed, Dr Law agreed those type of events “could” lead to significant stress in her life but, on being pressed, agreed they were all matters “likely to cause significant stress” in the plaintiff.

51 As to events experienced by the plaintiff post-accident (divorce from second husband, contraction of a sexually transmitted disease from husband leading ultimately to sterility, husband abusive and violent towards her and her son and an abortion), Dr Law agreed they were significant stressors in her life. However, and even accepting the motor accident was relatively minor, he thought the accident was more likely the cause of the major depression rather than the other events before and after the accident so that the accident played more than a minimal role in the plaintiff’s development of depression.

52 Finally, Dr Law noticed over the years that the plaintiff’s condition had fluctuated and, although not sure there had been some improvement, he thought the medication was controlling it so that he could not see it getting worse. In coming years, Dr Law agreed from a psychiatric point of view the plaintiff might be able to return to work.

53 Dr Ivan Lorentz: On 3 April 2008, Dr Lorentz, a consultant neurologist, examined the plaintiff. He also gave oral evidence. In his report the same day, Dr Lorentz said the plaintiff was not fit for work in general mainly on account of her extreme anxiety. Since the symptoms had been continuing then for five years, Dr Lorentz gave a guarded prognosis and thought substantial improvement unlikely without regular medical intervention in the form of ongoing psychotherapy and relaxation therapy monthly for 12 months or more; physiotherapy and general conditioning were also needed.

54 Dr Lorentz in referring to the disc protrusion in the plaintiff’s lumbar spine and damage to the nerve root considered, with the continuity for six years since the accident of back pain and referred symptoms into the left leg, that it was likely to be indefinite. As to causation of this, he said it could be from degenerative changes or trauma but in the plaintiff with only one disc affected the cause was likely to be trauma. The observed condition in the plaintiff of “foot drop”, weakness in the ankle, can be caused by nerve root movement. Even so, Dr Lorentz, having in mind the disc protrusion, thought the plaintiff would find sedentary work, such as an accounts clerk, suitable where she could change position frequently but with no prolonged standing or walking. As to the pre-injury employment as a mushroom packer, Dr Lorentz thought that unsuitable for her because it involved bending and twisting in repeated movements.

55 Dr Peter Morse: A psychiatric opinion was obtained from Dr Morse after he saw the plaintiff on 30 January 2006. In his report of 19 February 2006, Dr Morse took a detailed history from the plaintiff and noted “she said she was very unhappy and was tearful…throughout the interview…says that she cries easily and worries about her problems and when she talks about herself she gets upset…she can’t sleep at night and she gets dizzy.” Dr Morse diagnosed the plaintiff had major depression with a generalised anxiety state from “being down, depressed and withdrawn, feeling useless with low self-esteem and self-confidence and sleep disturbance together with cognitive impairments, the loss of appetite and loss of weight.” Dr Morse saw the accident as the cause of the diagnosed psychological change in the plaintiff which, together with her physical condition, would make it difficult for her to work in any job.

56 The prognosis was considered by Dr Morse to be very poor and he saw her as “continuing to suffer quite marked emotional symptoms and state in the next 2 to 3 years with ongoing physical problems, inability to work and difficulties in interpersonal relationships.” However, he thought there should be some reduction in her depression and anxiety with specific psychiatric therapy but he did not think she would ever return to her pre-morbid level of functioning in any area.

57 Dr Morse reviewed the plaintiff on 25 March 2008 and in a report of 27 March 2008 said “her state both emotionally and physically has deteriorated markedly since I saw her two years ago.” He found some evidence of agoraphobia. As to the prognosis, Dr Morse added – “I do not see her as making a recovery with intensive psychiatric therapy in the next 2 or 3 years. It is highly unlikely she will even be working in the foreseeable future. Other activities will not be resumed for a prolonged period.”

58 Dr Clive Sun: Dr Sun, a consultant in rehabilitation medicine, saw the plaintiff on 27 September 2004 and reported the same day. He re-examined her on 18 May 2007. In his report of 18 May 2007, Dr Sun gave this opinion:

“She should be referred to a rehabilitation specialist to co-ordinate her treatment programme. She requires physiotherapy and supervised exercise programme twice a week for 12 months. She should be reviewed by her orthopaedic surgeon every 3 months to determine the timing of spinal surgery. She should also be referred to a urologist for management of her impaired bladder function.

It is likely that she will require surgical intervention for the spinal disc and nerve pathology within the next 2 to 3 years.

She will require the involvement of a rehabilitation provider to organise suitable duties and co-ordinate her return to work programme. Physical restriction should include no lifting over 5 kg, no repetitive bending or twisting, no forceful pushing or puling, no sustained work above shoulder level and change of posture every 30 minutes. Provided suitable duties are available she may be able to return to 20 hours a week of work in 12 to 18 months’ time.

Without surgical intervention it is likely she will continue to suffer from neck, back, lower limb and bladder symptoms affecting her daily activities.

She should be reviewed by her general practitioner every 4 to 6 weeks for medications, regular follow-up from a rehabilitation specialist every 2 months and by her orthopaedic surgeon every 3 months in the next 2 years.”

59 Dr PL Harvey-Sutton: The plaintiff was examined by Dr Philippa Harvey-Sutton, a consultant occupational physician, on 21 February 2006 and reviewed by her on 23 July 2007. A most comprehensive history was taken from the plaintiff, including educational and occupational history, details of the motor accident, current treatment, current complaints, daily living activities, general medical health and social background. Dr Harvey-Sutton had access to the radiological investigations and to the reports of Dr Sun, Dr Lee and Dr Woo; she conducted a clinical examination of the plaintiff’s neck, upper and lower limbs and spine. Not insignificantly, Dr Harvey-Sutton noted no evidence of foot drop which, she said, if present would not have enabled the plaintiff to wear the elevated shoes then being worn.

60 Given the various events in the plaintiff’s life, Dr Harvey-Sutton said she gained the impression that “she had an emotional and behavioural condition, which may well have been independent of the subject motor vehicle accident.” As to the work of a mushroom picker, Dr Harvey-Sutton thought the work limitations stated by Dr Sun were within them and it was “light work” able to be performed by the plaintiff. Specifically as to the physical injuries sustained in the accident, Dr Harvey-Sutton believed that the plaintiff’s condition would improve but there was a significant emotional behavioural condition independent of the accident so that her functionality and mobility would depend on that.

61 After review in July 2007, including by reference to the available further medical reports, Dr Harvey-Sutton in a report of 31 July 2007 made the following points –

• The emotional and behavioural disorders were the principal condition.
• The strain of the neck and back is not other than a minor impairment.
• No indication of foot drop or other neurological conditions.
• There was a number of non-organic signs present on clinical examination, during which the plaintiff remained tearful and upset.
• There were no further treatments or surgery indicated for the physical injuries other than reassurance of settlement in the fullness of time.
• Injuries to the neck and back had been sustained in the accident but the inconsistent non-organic signs indicated the current physical condition was only partially related to such injuries.
• There was no indication the light packaging/processing work at the mushroom factory could not be resumed.
• The prognosis for the physical injuries and symptomatology will settle in the fullness of time.

62 Dr Selwyn Smith: On 10 April 2006, 23 July 2007 and 4 June 2008 Dr Smith, a consultant psychiatrist, examined the plaintiff. In his first report of 13 April 2006, Dr Smith, unlike Dr Law and Dr Morse who diagnosed major depression, diagnosed an adjustment disorder with depressed and anxious mood as the development of emotional and behavioural symptomatologies in response to a significant psychosocial stressor. He commented in terms of causation that “while the accident was distressing,…Ms Zhang is more significantly psychologically impacted by the abusive and threatening behaviour directed towards her by her second husband.” He reasoned in this way:

“His (second husband) demands for money, his threats towards her and her family if the money was not provided, and his return to China and the taking up of residence with another female, has been…most traumatic from a psychological point of view…Ms Zhang has experienced significant shame and humiliation in regard to the dissolution of her second marriage. She has not disclosed the issue to her current treating psychiatrist.

Ms Zhang does display a depressed mood. She also experiences an apprehensive expectation of further harm befalling her if she rides a bicycle. She is able to utilise public transport. She is fearful in a motor vehicle. She has a strained relationship with her young son. She feels quite isolated in Australia. She is at a loss to know what her future holds.

…Ms Zhang has focused on her chronic pain as this is in many ways more acceptable than discussing and resolving her psychological issues pertaining to the dissolution of her relationship with her husband. Despite ongoing psychological support and treatment with a psychiatrist, she had not improved because…the core issue, namely her impaired relationship with her husband has not been addressed or resolved.

…the accident is playing a minimal role in the ongoing symptomatologies she currently demonstrates.”

63 Dr Smith thought the plaintiff had significant pain focused behaviour arising from the motor accident, with marked dependant and avoidant behaviour, and she had withdrawn significantly with a reluctance to re-engage in work. Nevertheless, he considered the plaintiff’s injuries from the accident had stabilised and were not likely to remit despite treatment until she addressed the key issue of the breakdown of her second marriage and, with encouragement, to engage in appropriate work. In that latter respect, from a psychiatric viewpoint, Dr Smith said the plaintiff was able to engage in productive work.

64 In his final report of 5 June 2008, Dr Smith observed the “complicated clinical picture” of the plaintiff. He confirmed the diagnosis of chronic adjustment disorder with depressed and anxious mood and said she essentially remained unchanged since he first saw her in April 2006. He added in conclusion that she was capable of undertaking some work and her stated reason for not being able to do so, weakness in her left arm and tendency to drop things, had no neurological basis. Dr Smith did not anticipate further deterioration and said she was likely to remain in her present state for some time.

65 Dr James Bodel: On 17 December 2008, Dr Bodel as an orthopaedic MAS assessor reviewed the plaintiff in relation to the injuries said to have been received in the motor accident. He found she suffered a soft tissue injury to the neck and back and minor pathology in the left shoulder; there was no objective sign of injury to the left hip, arms, legs, left knee or left ankle; he found a direct causal link between the ongoing complaints in the neck, back and left shoulder with the accident. The injuries so found, in Dr Bodel’s view, had stabilised and were not likely to remit despite further treatment within the next 12 months. As to the injuries to the left leg, left ankle and left hip, Dr Bodel thought they had resolved.

Condition of the plaintiff in light of medical evidence

66 The plaintiff presented as a person who had suffered very severe, disabling and long-lasting physical injuries from the subject motor accident and who had developed over time a chronic emotional state. In the result, she said she was unable to return to employment due to the continuing pain all over her body, headaches, fainting attacks, dizzy spells and loss of concentration and where she spends her time with friends and in bed at home; domestic chores were claimed to be beyond her and she depended on friends and her son, to the extent of about 25 hours per week, to perform them. Even so, it is now nearly six years since the motor accident but, despite orthopaedic and psychiatric treatment, her disabled condition continues without any apparent relief. However, it seems plain from an overall view of the medical evidence that the ongoing problem is her non-organic or psychological condition. In that respect, I found the view of Dr Smith to be insightful in that the plaintiff needed to address the central issue of the breakdown of her second marriage with encouragement to re-engage in gainful employment.

67 I have to say that an assessment of the plaintiff’s condition and cause of it, from the date of the accident to now and into the future, was complex. Her evidence, given through an interpreter, was somewhat unresponsive to questions and she seemed intent on demonstrating at every opportunity how seriously affected she was from the accident but with an almost off-handed dismissal of the very many other events in her life, both before and after the accident, which clearly were stressors. For instance, she was not concerned about the divorce from her first husband in China, from which union she had a son, because she said that was what she wanted, but was extremely upset and distressed when her second marriage in Australia terminated in divorce. And that was so notwithstanding her husband’s attitude towards her of abuse, violence (and with threats to her son), demanding and taking money from her, having affairs with other women, infecting her with a sexually transmitted disease and denigrating her to her family and friends in China as a lazy person. The breakdown with her second husband was in some way related by the plaintiff to the occurrence of the accident and its effects on her as a wife. However, I think the simplicity of that explanation overlooks the more complex nature of the marital relationship and I agree with Dr Smith that the accident itself is playing a minimal role in the ongoing symptomatologies; likewise, I agree with Dr Harvey-Sutton that the emotional and behavioural condition may well be independent of the motor accident.

68 The plaintiff’s demeanour during the hearing also calls for comment. Her evidence-in-chief required interruption on a couple of occasions when she became tearful and distressed but in cross-examination a few short adjournments were also necessary and distress was more marked as propositions against her case were suggested. Indeed, on a couple of occasions during other evidence she lay on the floor of the courtroom, sat at the back of the courtroom with her head leaning on the shoulder of the interpreter and at one stage had to be assisted from the courtroom by her solicitor. Those actions, taken in conjunction with her oral evidence of disability, leads one to think that she requires in-patient care in a hospital or other health facility – it was to that extent, in effect, she spoke of what she now did, or rather did not do, in her life. However, nowhere in any of the medical reports was such a course even suggested and I can only conclude, and I do, that she was demonstrably exaggerating and embellishing her condition to make the point how bad she was. Of course, a number of the doctors reported the view that she was capable of sedentary or light work, whether viewing the physical and emotional conditions separately or together: see Dr Law (in coming years), Dr Ellis, Dr Meakin, Dr Sun (in 12 to 18 months time, Dr Lorentz, Dr Harvey-Sutton, Dr Smith and Dr Bodel. It may be accepted that giving evidence in unfamiliar surroundings is itself stressful but the plaintiff readily composed herself after each adjournment and, in my view, there was a supervening factor in operation; that factor, namely, to advance her case to the maximum, I think had the effect of distorting and colouring her real condition to the point of unreality and against ordinary experience. It also brought into operative effect on her condition those events in her life unrelated to the motor accident.

69 The effect on the plaintiff’s emotional condition of the accident was a large part of her case, including the consequence for her marriage. Dr Law considered there was a connection and, in saying so, discounted the effect of the other evens in the plaintiff’s life (as described earlier). However, Dr Law, and despite their admitted importance in diagnosing and treating her, admitted he did not have the details. On the other hand, both Dr Smith and Dr Harvey-Sutton thought those events were relevant but largely independent of the accident. In fact, the plaintiff herself admitted, as she said, “there are many things happening in my life that make me so unhappy.” I prefer the view of Dr Smith and Dr Harvey-Sutton over that of Dr Law because it is based on more complete information.

70 I think the circumstances of the motor accident in October 2003 may properly be described as minor in nature in which the plaintiff suffered soft tissue injuries to her neck, back and left shoulder but with a disc protrusion in the low back area at the L5/S1 level involving nerve root entrapment. During the two-year period under treatment from Dr Lee and Dr Woo, and then totally incapacitated for work, the physical injuries were addressed so that partial incapacity arose. However, there then developed by about December 2005 an emotional and behavioural disorder, diagnosed as a chronic adjustment disorder with depressed and anxious mood, which assumed precedence over the physical injuries in incapacitating the plaintiff for work. That psychological condition was caused by the various stressor events in the plaintiff’s life both before and after the motor accident but where those events were independent of the accident, including the plaintiff’s marital problems in large part. However, the accident intervened to “set off” or “trigger” with the onset of continuing pain the psychological condition to continue her total incapacity to work. The ongoing nature of the disability from those non-organic causes for now three and a half years and, with appropriate treatment, a likely duration of a further three years, partially incapacitates the plaintiff from work. Thereafter, she should be fit for sedentary duties or work of a light nature, such as the pre-injury job as a mushroom packer albeit perhaps on reduced working hours in the short term.

71 In the domestic situation, I accept the evidence of Ms Radbron as to her assessment of the plaintiff’s requirements. In my view, the plaintiff’s evidence and that of Mr Si was simply an overstatement for a two-bedroom flat and where the plaintiff has adopted an overly dependant attitude on others.

Contributory negligence

72 In the circumstances of this accident, the defendant sought a finding of contributory negligence of the plaintiff for what occurred of 25 per cent. For the plaintiff, the submission was that there was no contribution by her at all.

73 Evidence from John Jamieson, a consultant forensic engineer, was relied upon by the plaintiff. A report dated 13 May 2009 detailed the circumstances of the site concerned and its state following an inspection by Mr Jamieson on 12 May 2009 in fine, night-time conditions. Together with the oral evidence from both the plaintiff and the defendant, I found the coloured photographs of the roundabout taken by Mr Jamieson to be instructive in determining the likely visibility at the time of the subject motor accident – it was quite dim and, given the rain conditions then existing, I accept that it would have been very difficult to see a dark-clothed person on an unlit bicycle in the roundabout as one prepared to enter it; extreme vigilance would have been required. Even so, Mr Jamieson’s essential conclusion was “that a normally alert driver should have been able to perceive the bicycle in sufficient time and distance for the driver to bring his vehicle to a complete stop prior to reaching the area of impact.”

74 For the defendant, Paul Feenan, a traffic crash reconstruction specialist, visited the site around mid-day on 20 March 2009 and again that night at 7.15pm. His report dated 30 March 2009 was admitted into evidence. After detailing the accident, location, weather conditions and lighting, Mr Feenan said he took time, just over one hour, observing the roundabout at night and traffic moving through it. Interestingly, he then saw an adult riding an unlit bicycle in the roundabout and observed “it was impossible in the dark to determine any description of the person riding the bike.” He concluded that “there is nothing on this intersection at night that would warn motorists of an unlit bicycle using this roundabout at night.” Mr Feenan analysed the situation by reference to the facts the plaintiff was wearing dark clothing and the bicycle was unlit.

75 In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-494, the High Court said that an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for what occurred involved a comparison of culpability, that is, the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage; their Honours said it was to the whole conduct of each party in the circumstances which had to be compared. And, as King CJ observed in Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 12, “misjudgement is not contributory negligence.” In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310, Mason, Wilson and Dawson JJ distinguished contributory negligence as “negligence rendering [the plaintiff] responsible in part for the damage” rather than “mere inadvertence, inattention or misjudgement.”

76 The defendant admitted primary liability for the motor accident. Based on his evidence that he did not see the plaintiff on her bicycle in the roundabout before or when he entered it, I think the admission was properly made. He was required to exercise special care at night in doing so, particularly in a poorly lit roundabout in rainy conditions. However, the plaintiff, I am satisfied, relevantly contributed to what occurred to a not insignificant degree in omitting to have a light on the bicycle and by wearing dark-coloured clothes. I assess her contributory negligence at 15 per cent.

Damages

77 In the circumstances of this case and on the findings made, I turn to assess damages. In doing so, I have had in mind the decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 645 that damages are to be reduced for factors unconnected with the defendant's negligence as causing the plaintiff's psychological condition.

78 Past economic loss: Pursuant to s 124 of the MAC Act no damages for economic loss due to loss of earnings may be awarded in respect of the first 5 days the plaintiff suffered that loss. Thereafter, from 25 October 2003 to 24 April 2009 (a date by combining the views of Dr Lorentz and Dr Smith) - a period of 286 weeks - I will allow for total incapacity for work based on a net average weekly wage as a mushroom packer of $435.00 - the resultant amount is $124,410. At that stage, I think the plaintiff had a partial incapacity for work due to the motor accident and I would assess her loss at $235.00 per week net for the eight-week period to date as $1,880. The total for past economic loss is, therefore, $126,290. From that amount should be deducted $10,000 already paid to the plaintiff by the defendant's insurer pursuant to s 130(b) of the MAC Act resulting in an amount of $116,290 for this element.

79 Past superannuation loss: Given a past economic loss for wages of $126,290, loss of superannuation benefits should be allowed of $13,891.90 (calculated at 11% of net loss).

80 Future economic loss: For three years into the future, I would propose to allow for impairment in the plaintiff’s earning capacity by continuing the rate of $235.00 per week giving an amount of $29,083.60 (multiplier of 145.6 on 5% tables less 15% for vicissitudes). Thereafter, until she reaches retirement at age 65 years, I think a lower net weekly loss from accident-related causes is appropriate, say, $150.00 – this gives an amount of $68,850 (multiplier of 625.0 on 5% tables less 15% for vicissitudes with 3-year deferred multiplier of 0.864). The resultant total amount for this element of future economic loss is $97,933.60.

81 Future superannuation loss: On future economic loss of $97,933.60, 11 per cent for the loss of future superannuation benefits is $10,772.70.

82 Past domestic care: On the basis of the report by Ms Radbron, domestic assistance on a gratuitous basis has not exceeded the “six hour-six month” threshold required by s 128(3) of the MAC Act so that no amount may be allowed for this element: see also Roads and Traffic Authority v McGregor [2005] NSWCA 388.

83 Future domestic care: Ms Radbron assessed the future care needs at 1.5 hours per fortnight but the defendant conceded, which I will accept, one hour per week. The issue here was whether such care should be on a gratuitous (as the defendant said) or a commercial (as the plaintiff said) basis. In the circumstances in which the plaintiff finds herself with a son about to commence university, I accept a commercial basis for this element in what is a modest amount. The rate of $35.00 per hour was agreed. I calculate this amount at $33,264 (multiplier of 950.4 on 5% tables).

84 Past out-of-pocket expenses: It was agreed these had been incurred in the sum of $28,353.06 of which $6,795 were disputed as relating to Chinese massage unrelated to the motor accident. The plaintiff’s evidence, which I accept, was that she found Chinese massage more helpful than western methods for pain relief – I accept this and will allow the full amount. However, it was agreed the defendant had paid already $13,786.14 so that that amount should be deducted pursuant to s 83(5) of the MAC Act giving a net amount for this element of $14,566.92.

85 Future out-of-pocket expenses: The plaintiff claimed $45,619 in respect of attendances on a general practitioner and psychiatrist, medication and traditional Chinese treatment for her life expectancy at a rate of $48.00 per week. For the defendant, a buffer of $10,000 to $15,000 was suggested. There may be no doubt on the evidence that the plaintiff, at least for the next three years, will require intensive general practitioner and psychiatric management for her emotional condition, together with medication. This should be allowed for at the rate of $33.00 per week for three years giving an amount of $4,804.80 (multiplier of 145.6 on 5% tables). Thereafter, I think a buffer of, say, $10,000 is appropriate to cater for ongoing medication and a reduced level of medical treatment as her condition improves. The total for this element is, therefore, $14,804.80.

86 Summary of damages: The damages I would allow in the plaintiff’s favour are $116,290 for past economic loss; $13,891.90 for past superannuation loss; $97,933.60 for future economic loss; $10,772.70 for future superannuation loss; $33,264 for future domestic care; $14,566.92 for past out-of-pocket expenses; and $14,804.80 for future out-of-pocket expenses. The total is $301,523.92. From that amount 15 per cent is to be deducted for contributory negligence giving a net entitlement due to the plaintiff of $256,295.33.

Conclusion and orders

87 The defendant admitted liability to the plaintiff and the case concerned an assessment of damages only and the issue of contributory negligence by the plaintiff. I assess damages in the amount of $301,523.92 less 15 per cent for contributory negligence resulting in a net amount of $256,295.33. The plaintiff is entitled to a verdict against the defendant accordingly. The parties will be heard on costs before final orders are made.

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