Zhang v Zayati

[2018] NSWDC 385

District Court

New South Wales

Medium Neutral Citation:	Zhang v Zayati [2018] NSWDC 385
Hearing dates:	17 October 2018 – 18 October 2018 (Parramatta); 8 November 2018 (Sydney)
Date of orders:	12 December 2018
Decision date:	12 December 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant. (2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (3) The parties are to bring in agreed Short Minutes of Order within 7 days for a judgment amount consistent with these reasons. (4) Liberty to the parties to apply within 14 days for a costs order different to that set out in (2) above. (5) Liberty to the parties to apply to the Associate to Dicker DCJ on three business days’ notice if there can be no agreement in relation to the judgment amount.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – alleged physical and psychiatric injuries arising from the accident – extent of plaintiff's life stressors prior to the accident – nature of the plaintiff’s psychiatric injury caused by the accident – contested medical evidence – dispute as to damages issues
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Civil Liability Act 2002 (NSW)
Cases Cited:	Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Curtis v Harden Shire Council [2014] NSWCA 314 El-Mohamad v Celenk [2017] NSWCA 242 Hyjer v Lopes [2018] NSWDC 8 Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638 Mason v Demasi [2009] NSWCA 227 Smith v Alone [2017] NSWCA 287 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Joanne Yiwen Zhang (Plaintiff) Rebecca Jayne Zayati (Defendant)
Representation:	Counsel: R Foord (Plaintiff) D O’Dowd (Defendant)   Solicitors: Withstand Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2017/00278683

Judgment

1. In these proceedings, the plaintiff, Ms Joanne Yiwen Zhang, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act") for personal injuries alleged to have been suffered by her as a result of the negligence of the defendant in a motor vehicle accident on 27 May 2014.

2. In the motor vehicle accident, the defendant, in her vehicle, collided with the rear of the plaintiff's vehicle. The extent of the plaintiff's physical injuries as a result of the accident is in dispute. The plaintiff also claims psychiatric injuries arising from the physical injuries which she suffered in the accident. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act. The plaintiff's claim is for:

1. Past out of pocket expenses;

2. Future out of pocket expenses;

3. Past economic loss;

4. Past superannuation loss;

5. Loss of future earning capacity and future superannuation loss; and

6. A claim for future domestic assistance on the basis of paid commercial assistance.

3. There is a significant dispute between the parties in relation to the amount of damages to which the plaintiff is entitled. The plaintiff claims that she is entitled to several hundreds of thousands of dollars in damages. The defendant in her schedule of damages handed up to the court at the commencement of the final hearing, only conceded about $9,000 in damages. In final written submissions, the sum conceded was further reduced. A determination of the plaintiff's claim requires a close examination of the plaintiff’s background, her academic achievements, her injuries arising from the accident, her medical treatment and work history up to the date of trial and the medical evidence which has been tendered in the proceedings.

The pleadings

4. A Statement of Claim was filed on behalf of the plaintiff dated 13 September 2017. This pleads the accident and an allegation of a breach of a duty of care. A Defence dated 25 October 2017 was filed. In the Defence it is admitted that the collision was caused by the negligence of the defendant: paragraph 3. However, the particulars of injury, loss and damage claimed by the plaintiff are not admitted.

Background facts

5. There was a large amount of documentation tendered by the parties. The plaintiff also gave extensive oral evidence and was cross-examined on a number of matters by counsel for the defendant. Although there was an extensive dispute in relation to medical issues and some factual issues relevant to the plaintiff's medical diagnosis, a number of factual matters were not in dispute. I set out below these factual matters. Unless I indicate to the contrary, these constitute my initial factual findings in the matter.

6. The plaintiff was born in September 1984 in Guangzhou in China. Her parents are both alive and she continues to live with them. She is an only child. The plaintiff was accordingly 29 at the time of the motor vehicle accident on 27 May 2014 and 34 at the date of the final hearing.

7. In China, her father was a secondary school teacher and her mother was a theatre nurse. Her father came to Australia in 1989 as a student and the plaintiff and her mother followed when the plaintiff was seven years old.

8. The plaintiff attended various schools and completed her Higher School Certificate in 2003. The plaintiff performed well in her Higher School Certificate and, on the balance of the evidence, obtained a high mark.

9. After completing her school studies, the plaintiff attended the University of Sydney where she studied a combined Bachelor of Science and Bachelor of Nursing course. The plaintiff performed well in her course, particularly in the Nursing degree in 2008. During her university studies, she worked at Bankstown Hospital as an assistant in nursing and undertook some research assistant duties. In January 2009 she obtained her registration as a nurse and soon after commenced employment as a nurse at Westmead Hospital while completing an honours graduate program at the University of Sydney in her Nursing degree. As stated, the plaintiff had performed particularly well in the latter stages of her Nursing degree. The plaintiff worked at Westmead Hospital as a nurse part-time during her honours year.

10. In 2010, the plaintiff commenced employment at Westmead Hospital in geriatric rehabilitation while undertaking her honours programme. She worked full-time in that role and completed her Bachelor of Nursing with Honours in 2010. In 2011, the plaintiff commenced training to obtain registration as a midwife at Westmead Hospital and worked four days per week. In 2011, the plaintiff also completed a Graduate Diploma in Midwifery at the University of Technology, Sydney.

11. The plaintiff's usual general practitioner at this time was Dr Ragavan. She saw other doctors in her practice. The consultation notes in Dr Ragavan’s practice were in evidence. These were given some importance by both parties in the proceedings. Some caution must be exercised in relying on what appears in medical notes for the reason given by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2], which has been followed in numerous later authorities. However, the plaintiff is intelligent and articulate and could be expected to state her medical issues clearly to her doctors. She is also, by her training, very familiar with medical matters.

12. The plaintiff had a consultation with Dr Islam on 17 April 2011. The consultation notes record:

“Requested for routine blood tests

feels tired

overworking

…

Heart sounds: x 2”.

13. In a consultation with Dr Ragavan on 2 September 2011, the following is recorded:

“Tired, not able to sleep

studying midwife.

emotional before period.

really anxious[s] & depressed

negative thinking

Reason for visit:

Stress

…

counselling for anxiety

discuss Mental health plan & refer to psychologist”.

14. A surgery consultation with Dr Ragavan on 9 September 2011 has the following notes:

“Came back for mental health assessment & plan

wanted to see a psychologist

still could not cope & negative thinking & unable to sleep

Reason for visit:

Anxiety

…

Letter to Ms Betty Lew printed.’

15. A consultation with Dr Ragavan on 12 September 2011 referred to “lethargy”.

16. A consultation with Dr Yang on 7 November 2011 had the following notes:

“Study hard + working

Felt streed [stressed]

Not depressed

Felt tired today

No energy

Relax

Exercise

Health diet”.

17. The materials in evidence from Dr Ragavan's practice include a GP mental health care plan for the plaintiff. It is recorded that the plaintiff was suffering as at 9 September 2011 with “excessive, ongoing worry and tension”, a feeling of being “edgy”, irritability, muscle tension, headaches, difficulty concentrating, tiredness and trouble falling or staying asleep. The plaintiff’s personality is described as being “easily overwhelmed by stress”. The stressors were described as follows:

“Stressful life events – work four days a week as a midwife in Westmead Hospital. Hospital course on going with the work. Pt feels tired about studying and working. Have no time to be relax or enjoy life. Have some relationship issues due to her busy life. Sometimes she can sleep over 12 hrs. Not eating properly due to her job situation”: Exhibit A pages 184-5.

18. The plaintiff was said to be on no long-term medications and her attitude and appearance seemed normal. Her rate of speech was said to be a bit pressured and very rapid and her mood and affect was anxious and reactive. It was said that the plaintiff was fully aware of the extent of the problem. The plaintiff was referred to Ms Betty Lew, psychologist, and requested a reminder for a review of the management plan in six months. The referral letter to Ms Lew said that the plaintiff was “suffering from anxiety”: Exhibit A page 188 and a medical certificate said she was unfit for work on 12 September 2011.

19. It is clear from the evidence that the plaintiff was undertaking extensive studies while working four days a week at Westmead Hospital. The plaintiff consulted with Ms Lew, psychologist, on two occasions. Ms Lew noted: “Felt the worse year of her life – doing many exams. Depression = very mild. Anxiety = mild. Stress = within normal range…can’t talk to parents – no emotional support”: Exhibit A page 344.

20. The documents in evidence raise issues in relation to the happiness of the plaintiff's childhood and her relationship with her father. The plaintiff relocated from China to Australia when she was seven and clearly would have had significant stressors in adjusting to a new culture, language and living environment. As she was an only child, her parents were enthusiastic for her to be successful and to do well in her studies. While the plaintiff's parents are still together and she still lives with them, it appears that her father is a dominating figure in the family and has a controlling nature. On occasions, there has been significant conflict between her parents. The evidence suggests that the plaintiff does not have a close relationship with her father but has a good relationship with her mother. Both are, on the balance of the evidence, generally supportive of her: See Exhibit A pages 30-33.

21. The plaintiff commenced employment at Westmead Hospital as a registered midwife in January 2012 and worked full-time. Over the next two and a half years, the plaintiff moved from the Antenatal High Risk ward to the Birthing Unit and from there to the Maternity/Postnatal ward. In February 2014, the plaintiff changed her role to a community midwife role working full-time. This role involved driving to new mothers at their houses to assist them with issues relating to birth and their new baby. Clearly substantial driving in western Sydney was required.

22. There are significant issues relating to stressors in the plaintiff's life in the period 2011-2014 to the date of the accident on 27 May 2014. I have already referred to the plaintiff's childhood and the relationship with her father and the stress which she had in 2011. The evidence shows that the plaintiff experienced a traumatic event in 2009 when a patient had a cardiac arrest and she was the first nurse to attend to him. The patient ultimately died and the plaintiff found this stressful. The plaintiff also found working as a midwife to be stressful. This will be considered in further detail in an analysis of the various medical reports.

23. In early 2014, the plaintiff was the victim of an alleged assault which seems to be of some significance. She complained to police but ultimately did not press charges: see Exhibit C.

24. As indicated, the motor vehicle accident occurred on 27 May 2014. The defendant’s car collided with the rear of the plaintiff’s car. The damage to the two vehicles was not extensive: Exhibit D. The plaintiff's car was not properly driveable after the accident due to part of the rear fender rubbing on the tyre and she was given a lift from the scene of the accident by the tow truck operator, who towed her car, to Westmead Hospital. The plaintiff attended the Emergency Department but ultimately, due to the busyness of the department, she left and went to see her general practitioner, Dr Ragavan. The plaintiff continued consulting doctors at Dr Ragavan's practice from the date of the accident until November 2015 when she consulted another general practitioner at the recommendation of her current solicitor. The relevant notes are at Exhibit A pages 162-167. Relevant entries in the medical notes at Auburn Healthcare Centre where Dr Ragavan practised are as follows:

1. 27 May 2014:

“Had an MVA at 12 noon

No LOC

Stressed

Painful R/hip

Examination

No tenderness”: Dr Ragavan;

2. 30 May 2014:

“Feels better

Still feel palpitation when she drive”: Dr Ragavan;

3. 5 June 2014:

“Still have pain on R/buttock/hip

Wanted to see a physio

Still have fear of driving. But getting better”: Dr Ragavan;

4. A referral from Dr Ragavan to a physiotherapist included: “worse in neck and R hip pain. For physio management.” Ms Kwok physiotherapist’s notes for 6 June 2014 included: “… C/O tightness over R butt, pain over neck and increased crep over joints … imp: musculoskeletal strain”;

5. 10 June 2014:

“C/O pain over R hip and neck 50% decreased … Stiff over upper and mid Tx

Tender over C2/3

Stiff over R hip IR” : Ms Kwok, physiotherapist;

6. 13 June 2014: “Feeling ok”: Dr Ragavan;

7. 13 June 2014:

“C/O pain over neck pain and R hip pain … tightness over upper traps

stiffness over upper Tx and mid Tx”: Ms Kwok, physiotherapist;

8. 20 June 2014: “C/O improved in neck pain, R hip stiff … tightness over L hip capsules stiff over left quadrant … tightness over upper traps stiff over C2/3 C3/4 stiff over upper and mid Tx": Ms Kwok, physiotherapist;

9. 26 June 2014: “… going well until yesterday was stressed to see the rear mirror still having pain on & off at lower back continuing physio”: Dr Ragavan;

10. 27 June 2014: “C/O much decreased in pain over neck and R hip…stiff over R C2/3 C3/4 C4/5 decreased R hip…decreased tightness”: Ms Kwok, physiotherapist;

11. 2 July 2014: “C/O pain over neck and upper Tx mild increased”: Ms Kwok, physiotherapist;

12. 10 July 2014: “ private [consultation] C/O pain over R side of neck”: Ms Kwok, physiotherapist;

13. 17 July 2014: “C/O pain over neck and hip much decreased”: Ms Kwok, physiotherapist;

14. 17 July 2014: “Better wanted to finalise the W/C”: Dr Ragavan;

15. 22 August 2014: “C/O will go to Europe tmr, on and off pain, but eased a lot after physio”: Ms Kwok, physiotherapist;

16. 7 November 2014: “C/O pain over neck and back after back from holiday 3 weeks ago”: Ms Kwok, physiotherapist;

17. 4 February 2015: “C/O pain over neck and R lower back”: Ms Kwok, physiotherapist;

18. 18 March 2015: “C/O neck and low back pain”: Mr Liu;

19. 8 April 2015: ‘low cervical pain and low back pain decrease”: Mr Liu;

20. 18 November 2015: “Low cervical pain and right low back pain again”: Mr Liu.

25. The plaintiff took three days off work after the accident and returned to work on 30 May 2014. She reported the accident to the police at Auburn police station on the day after the accident.

26. In the two years following the accident, as indicated, the plaintiff consulted her general practitioner and also a number of physiotherapists.

27. In March 2015, the plaintiff reduced her working days to four days per week. The reason for this is disputed. The plaintiff alleges that this was due to her physical and psychological injuries arising from the accident.

28. In June 2015, a patient complaint was made against the plaintiff arising from an incident in April 2015: See the Investigation Report dated 12 June 2015 which is part of Exhibit 4. It should be noted that the incident occurred after the reduction in hours to four days per week.

29. In June 2015 a personal injury claim form with an annexed medical certificate was lodged by the plaintiff. This will be considered further below. The plaintiff also undertook a number of radiological studies in June 2015.

30. In the period 2015-2018, the plaintiff attended frequently a psychologist, Ms Debora Felman. Ms Felman has provided a number of reports which will be considered below.

31. In March 2016, the plaintiff's then general practitioner, Dr Abdalla, stated that the plaintiff would benefit from transferring to Auburn Hospital, largely, it seems, because that was viewed as being likely to be less stressful. In May 2016, the plaintiff transferred to Auburn Hospital, still working four days per week. After a number of administrative problems, including with her pay and an available position, the plaintiff returned working four days per week in September 2016 to Westmead Hospital working in the Maternity/Postnatal ward.

32. In December 2016, the plaintiff requested from her supervisor at Westmead Hospital a reduction in her work days to 2 days a week from several months in the future. Soon after, on 17 December 2017, the plaintiff encountered aggressive behaviour at work and was allegedly threatened with a bladed instrument by another nurse. This resulted in the plaintiff taking some time off work. By late 2017, the plaintiff was only working two days per week at Westmead Hospital.

33. In May 2018, the plaintiff completely stopped working and is relying for income on rent from a property which she has purchased. The plaintiff resigned from Westmead Hospital in September 2018, shortly before the commencement of the final hearing.

34. The plaintiff's current position is that she is looking for alternative careers. This will be considered further below.

The plaintiff's evidence

The plaintiff's oral evidence

35. I have set out above a summary of the background facts and my general findings of fact on a number of uncontroversial issues.

36. I will now consider aspects of the plaintiff's oral evidence which are more significant.

37. The plaintiff confirmed in her evidence in chief that she lived with her parents in Lidcombe in Sydney and was an only child aged 34. After giving evidence in relation to her childhood and schooling, the plaintiff provided details of her education at Sydney University completing Science and Nursing degrees. The plaintiff completed her Nursing degree with honours with scholarships and a merit certificate. In the later years of her degrees at least, the plaintiff performed at a high level in her nursing degree academically. In addition, the plaintiff was community minded performing volunteer work for a number of charities.

38. The plaintiff said that she had three career paths in mind after finishing university and commencing at Westmead Hospital:

1. As a clinical specialist consultant nurse;

2. An academic pathway including completing a PhD; and

3. A role as a medical sales representative: T19.

39. The plaintiff gave evidence that she saw a midwifery qualification as part of the pathway to all three careers. The plaintiff described her future hopes as that she “wanted to make a difference”: T19.46.

40. In relation to some evidence in the material before the court concerning a difficult relationship with her father while she was growing up, the plaintiff did not deny it but said she had a very supportive relationship with both parents and was still living with them. They were now both retired: T20.

39. The plaintiff gave some evidence about a number of incidents prior to the motor vehicle accident in May 2014. She said she had been involved in a motor vehicle accident in 2009 but had suffered no injuries in the accident. In relation to her involvement with the death of a patient in 2009, she said that she talked with her manager about it and went back to work with no difficulties.

40. The plaintiff also gave evidence in relation to having counselling with her general practitioner and seeing a psychologist, Ms Betty Lew in 2011 due to the stress of her studies and work commitments combined. The plaintiff was taken to the health records of her then general practitioner, Dr Ragavan (being one of the doctors she saw at the practice). I gained the impression from the plaintiff's evidence that she had a limited recollection of the details of the various consultations other than remembering seeking out assistance. I have set out the details of the notes above. The plaintiff agreed that she had a mental health plan prepared by her general practitioner Dr Ragavan at this time and that she had a day off work due to anxiety. After this, the plaintiff said she went back to her work and studies and did not seek medical assistance in relation to these difficulties up to the time of the motor vehicle accident in May 2014: T21-22. The plaintiff said that in the period 2011 to 2013 she was a student midwife and registered nurse and could dispense medication. She said she did not recall having any significant problems in completing tasks at her work: T22.41.

41. The plaintiff confirmed that she commenced employment at Westmead Hospital as a registered midwife in the Antenatal High-risk ward working full-time on 1 January 2012. She said this ward dealt with miscarriages, stillbirths, abortions and very high-risk pregnancies. She agreed that work in the unit was challenging and it was common for mothers to be affected by drugs and alcohol which resulted in problems for the babies including a low birth weight. She stated that she was coping with the work up to the time of the May 2014 motor vehicle accident: T23.26.

42. The plaintiff confirmed that on 1 January 2013 she moved employment to the Birthing unit full-time at Westmead Hospital. At the same time she also undertook numerous community runs involving long distance running and was engaged in dancing as part of her social activities. The plaintiff confirmed that in June 2013 she moved to the Maternity/Postnatal ward at Westmead Hospital working full-time. At about this time, the plaintiff completed a defensive driving programme. She said she had indicated to the hospital authorities that she wanted to move to a community health role and thought that the driving programme would assist her with that and if she ultimately secured a position as a medical sales representative: T24.46. The plaintiff said she had no difficulty driving. She had purchased a car as part of her salary packaging at the hospital and also was provided with a work car if she had to undertake travel in her hospital position.

43. The plaintiff was asked a number of questions about an incident which occurred in January 2014 in which she alleges she was assaulted by a male friend. It is unnecessary to go into this matter in further detail. The plaintiff recorded the matters relating to this incident in great detail in her diary, extracts of which became Exhibit C in the proceeding. The plaintiff said that the detail in the diary on this incident was recorded by her either a few days or a few weeks later: T38.25. This incident is later given some significance by the plaintiff’s psychologist Ms Felman.

44. The plaintiff gave evidence that she commenced a position as a community midwife with Westmead Hospital in a full-time role in February 2014. This involved working five days a week on eight-hour shifts with an additional two hours per week with unpaid breaks. The plaintiff said on occasion she worked more than 40 hours per week and was paid overtime. She assumed that her records as to her pay were correct for this period and could not confirm that she was paid between $42 and $43 per hour: T39-40. The plaintiff asserted that she had no difficulties at work at this time: T40.26.

45. The plaintiff was then asked questions about the day of the motor vehicle accident. She confirmed that she was at work on the day of the accident and at the time of the collision had just dropped off blood from a baby to the pathology department at Westmead Hospital and was on the way to her next visit. The plaintiff gave evidence that she had been travelling at 60kph and was slowing down when she was collided into by another vehicle from behind. She said she heard a “loud noise and a lot of metal repeatedly banging against each other” and she was jolted forward in her vehicle. She said she felt shock and was feeling faint. Her head went forward and back and she became quite panicked: T41. She gave evidence that she banged her right elbow against the door of the car and asked herself what had happened: T41.21-.31.

46. The plaintiff stated that the other driver who was a female driver appeared at the passenger side window and asked her if she was okay to which she replied “yes”. A police car was in the vicinity and she stated that she was instructed to move her car to exchange details which she did with the assistance of a tow truck driver who appeared at the scene. She said she took photos of the two cars which became Exhibit D in the proceeding. The photos show a relatively small amount of damage to both vehicles. At the time the plaintiff was driving a hospital provided car. The plaintiff gave evidence that her car was unable to be driven but in cross-examination she confirmed that she was able to drive it around the corner. Part of the damaged part of her car was scraping on her tyre and the tow truck driver towed her car and gave her a lift back to Westmead Hospital.

47. The plaintiff said that she then attended the Emergency Department at Westmead Hospital and waited in line but it was very busy and she decided that a better idea was to go to her general practitioner. She said that the accident occurred at about 12 o'clock in the afternoon and, after obtaining permission and handing over her jobs to other nurses, she went to see her general practitioner, Dr Ragavan. The plaintiff confirmed that she told him how she was feeling: see Exhibit A page 162. The plaintiff gave evidence that she had pain in her right hip but could not recall the details of other problems: T43.48. This evidence was surprising and confirmed my impression that the plaintiff did not have a good recollection of the events surrounding the accident. The plaintiff said she was “scared”, did not know what to do and was not pro-active. She said that after seeing Dr Ragavan and obtaining a medical certificate she went home. Her manager told her to take three days off work which she did: T45.4.

48. The plaintiff agreed that she returned to see Dr Ragavan on 30 May 2014 and claimed that she felt worse then. This should be contrasted with Dr Ragavan's notes set out above which provide: “Feels better still feel palpitation when she drive”: Exhibit A page 162. In the three days from the accident to 30 May 2014, the plaintiff said that she noticed that she was not handling her car as well and needed to take frequent breaks. She said she was feeling panicky in the car and had pain in her neck and shoulders: T45.27. The plaintiff said she felt a lot of stress driving but continued driving to and from work. She could not recall the detail of any difficulties she was facing: T46.13. In answer to later questions from the court, the plaintiff confirmed that she continued in the community health midwife role until later that year which involved driving on a daily basis and continued driving to and from work in her car. Accordingly, whatever problems the plaintiff was facing with her driving did not stop her undertaking driving when necessary for her job or getting to and from work.

49. The plaintiff gave evidence of continuing to see Dr Ragavan and other general practitioners relating to her problems and also seeing Ms Kwok, physiotherapist, who assisted her with problems in her neck, shoulders and back and who she described as “excellent”. The plaintiff confirmed that she saw Ms Kwok many times and her treatment helped her. This included massaging, the use of electric stimulation and stretching exercises. The plaintiff confirmed that she told her doctor and Ms Kwok how she was feeling at the time and Ms Kwok gave her treatment. The plaintiff could not assist in the detail of various consultations with her general practitioners and Ms Kwok. Ms Zhang stated that on one occasion she told Dr Ragavan that she was not coping at work. When asked to be specific as to the timing of this, the plaintiff said that this was within months of the accident, being more than one month after the accident and before she travelled overseas in August 2014. This is not recorded in the notes.

50. The evidence establishes that the plaintiff went overseas to Europe for a period of about two months and carried a relatively heavy backpack with a more modest frontpack. After she returned from holiday she stated that she went to see Ms Kwok with some difficulties including pain in her neck and back. The plaintiff said she had some pain at the time.

51. The plaintiff gave evidence that she moved medical practices in Auburn from Auburn Healthcare Centre to the Advanced Medical Centre. She stated that her last appointment with Dr Ragavan was in October 2014 and said that there was difficulty in the availability of Dr Ragavan who was also absent from the practice on occasions. Later, in cross-examination, the plaintiff gave somewhat inconsistent evidence and said that she moved to the other healthcare practice at the suggestion of her solicitor to see Dr Abdalla. She agreed that she saw Dr Abdalla in May 2015 and told him how she was feeling at the time. Ms Zhang also agreed that she saw Dr Abdalla on a number of occasions and he referred her to Ms Felman, psychologist.

52. The plaintiff gave evidence that in February 2015 she returned to working in the Maternity/Postnatal ward at Westmead Hospital on a fulltime basis. She also confirmed that she had been working fulltime in the period from May 2014 after the accident to February 2015 when she transferred. Accordingly, apart from holidays which the plaintiff had in this period (which appeared to be about three months) the plaintiff had been driving as part of her position as a midwife and to and from work for several months. The plaintiff said the return to the Maternity/Postnatal ward was at her request which had been made some time before as she was struggling at work.

53. The plaintiff confirmed that in March 2015 she reduced her working days to four days per week. She said she was “struggling” with her work including the pace of it and the complexity of it: T53. She said she felt that the “walls were falling on me”: T53.41. The plaintiff said that she had never felt like this before the motor vehicle accident and had previously enjoyed work and the challenges and variations which it provided: T54.6.

54. The plaintiff confirmed that she made no claim in relation to the motor vehicle accident until May 2015, about a year after the accident, as she was very confused in relation to the processes involved. She said that she was only aware of the ability to claim workers compensation.

55. The plaintiff confirmed that as a result of an incident on 19 April 2015 a complaint was made in relation to her by a patient in June 2015: see Exhibit 4. The plaintiff said she made a comment which she accepted was inappropriate at the time. She said she had received no complaints prior to the motor vehicle accident. The plaintiff said that she was stressed at the time and had worked from 9:30pm to 6am and was “a bit irritated”: T57.1. The plaintiff said she was involved in supervising an assistant in midwifery removing a catheter from a patient.

56. The plaintiff was asked about her leave use. The plaintiff said that prior to the motor vehicle accident she had used almost no sick leave and took annual leave. After the motor vehicle accident she said that she did not know what leave she was taking but described it as “a bigger number”: T57.40.

57. The plaintiff confirmed that she continued in her four days a week role until mid-2016 when she moved to Auburn Hospital in the maternity department. The plaintiff said she agreed to this change but said it was up to the managers and she accepted it as it would give her greater exposure and experience. The plaintiff also said that Auburn was local to her and it reduced her driving time. She confirmed that she was still driving to and from work at this time: T59.2.

58. The plaintiff said that she was still seeing Dr Abdalla from time to time in this period and Ms Felman, the psychologist. She agreed that during this time she was seeing various doctors in relation to her claim for medicolegal purposes.

59. The plaintiff accepted that she consulted her managers about another role change, this time because Auburn Hospital was “not working out” for her. She understood that the decision to leave Auburn Hospital was not related to her performance but was due to staffing and cost issues and the hospital did not have a position for her. The materials before the court suggest that the plaintiff was dissatisfied with Auburn Hospital due to her responsibility and some administration issues. The plaintiff said she only worked four days per week at Auburn as she was “not coping”: T61.19. The plaintiff said she was under a lot of stress and could not work more.

60. In September 2016 the plaintiff gave evidence that she returned to Westmead Hospital working in the Maternity/Postnatal ward, four days per week. The plaintiff said that she did not manage well and found it “harder to do things”: T61.38.

61. The plaintiff requested a reduction in her working days to two days per week in December 2016. In a note to her manager dated 10 December 2016, the plaintiff requested the reduction to commence from the day after her leave from May to August 2017 (ie several months later). She stated:

“These changes will assist me personally after my car accident on 27 May 2014 and I believe this request has been long overdue. I'm flexible and can discuss modifications to this request if required”: Exhibit B page 184.

64. The plaintiff confirmed her tasks involved in her various positions as recorded in a document which became Exhibit E in the proceedings which she had prepared. The plaintiff said that this involved duties in the Birthing unit, as a community nurse and in the Neonatal ward with some variations. She confirmed that she engaged in the various tasks listed. The plaintiff said that she had no difficulties physically or psychologically in performing these tasks prior to the accident.

65. The plaintiff gave evidence in relation to an aggressive incident with another staff member on 17 December 2016 where she believed she was threatened with a blade. The plaintiff said that she had requested to reduce her work to two days per week prior to this incident. The plaintiff said that she felt the threat from the other nursing staff member to be “inappropriate behaviour”.

66. It seems clear from the plaintiff's evidence, that despite the request being made in December 2016 to reduce her working days to two days per week that she continued working four days per week until August 2017. She agreed that in October 2017 she changed to working in the Neonatal Intensive care unit at Westmead Hospital two days per week. She understood that she was placed there as the management regarded it as another rotation and the plaintiff had indicated that she had not been to the special care unit. She said that she thought it may benefit her career.

67. The plaintiff said that she found this rotation extremely difficult. She stated that she did not believe that she had the knowledge and experience suitable for that position which was highly specialised. She said that she was anxious and had a lack of sleep and found it a lot of pressure to be a professional in the area which was complex and not to do with her midwifery. By May 2018, the plaintiff indicated that she had a low desire to continue in midwifery and had low confidence with also little desire to continue with further education. The plaintiff said that she believed she had “a nervous breakdown” in relation to continuing to work in the area and stated that Dr Abdalla certified her unfit in May 2018 for four weeks: T67-8. The plaintiff said that the last time she had worked at Westmead Hospital was on 28 May 2018 and since that time she had made a determination not to go back to work: T68.32. The plaintiff then resigned by letter of resignation dated 20 September 2018 from her position at Westmead Hospital. She said she did this as she believed she could not fulfil the role of a nurse or midwife having regard to the tasks involved: T68.41. The plaintiff said she had exhausted her sick leave and annual leave and was taking leave without pay until her resignation. The plaintiff said that she was relying on income from an investment property and savings.

68. The plaintiff said that she had purchased a three-bedroom house on a large block of over 600 square metres with a substantial mortgage of over $525,000 which she was servicing with savings. The plaintiff said that she had a handyman to maintain the property and some work was done by the tenants. She said that she believed she paid the handyman “a few thousand dollars per year”. While giving an approximate estimate of $5,000 a year the plaintiff said it depended on wear and tear. I did not regard the plaintiff's estimate as necessarily reliable as she appeared to be very vague in giving this evidence. Clearly it appeared to me that the plaintiff would need to obtain employment in order to service the mortgage in the future when her savings were depleted even if she remained living with her parents.

69. The plaintiff gave evidence that in the future she wished to work in a low stress environment. Her preferred employment was in an office with less stress and no responsibility. Although she indicated that she wished in an ideal world to be paid the same as a nurse she seemed to accept that this may be unlikely. The plaintiff said that she had applied for a number of jobs in the $50,000-$55,000 per year range from June 2018 including in administration and as a medical secretary. She said that she did not believe that she was capable of doing work fulltime. She had applied for 10 jobs and was unsuccessful in each application. The jobs were part-time on either a temporary or casual basis for between 16 and 24 hours per week. She said that the feedback was that her experience was “appreciated” but she had been unsuccessful. The plaintiff said that she would be interested in a job as a personal shopper or in administration and if offered it would take the job. She said she had a willingness to study but at this stage not at university but would ultimately consider going back to university. She said she wanted to work. She stated that while she enjoyed work previously she did not miss it: T72.14. The plaintiff gave evidence that she had given up on doing nursing as she regarded it as a burden and wanted a clean cut from the career and to move on and pursue “other passions”: T73.7.

70. The plaintiff said that she felt better psychologically by making the decision to leave nursing. She said that she was no longer seeing Ms Felman, psychologist, but could not recall when she ceased seeing her. Ms Felman's fourth report says it was in July 2018. The plaintiff said that she did not plan to see Ms Felman again. She had made an appointment to see a psychiatrist and had seen him but she did not plan to see him again. She gave evidence that she was continuing on medication which was Valdoxan for mood. She said she had not been prescribed antidepressants prior to the accident. The plaintiff also said that she took Panadol for neck pain but avoided it wherever possible. She also had regular massages at a cost of $35 a month. While she had had massages prior to the accident they were not as frequent prior to the motor vehicle accident in May 2014. The plaintiff said that she had given up running as she found it strenuous and she had no endurance in her view to do it.

64. The plaintiff confirmed that she was still living with her parents and although she wanted to move out (saying this was her desire for more than five years), she regarded her prospects of moving out as being very unlikely. Those prospects would only improve slightly if she had employment as it would take some time to improve her financial position to do so: T76.

65. The plaintiff was subject to a detailed cross-examination by counsel for the defendant.

66. The first area covered was the accident itself in May 2014. The plaintiff confirmed that she was driving 60kph prior to the collision and was slowing down when the defendant's vehicle collided from behind. The plaintiff was not able to say what her speed was at the moment of impact. The plaintiff confirmed that although she was able to drive her car around the corner after the collision it did not drive normally. She could not confirm that that was because the back panel was scraping on one of the back wheels.

67. The plaintiff confirmed that she rang her manager and told her about the motor vehicle accident. The plaintiff agreed that she then proceeded after handing over her tasks to her general practitioner.

68. It was put to the plaintiff that the impact in the accident was minor and it was not a “large jolt”. The plaintiff said it was the “biggest jolt” she had ever had but could not confirm that the only damage was to a back panel of her car: T82.41. The plaintiff confirmed that the pain she suffered was pain in her hip and neck: T84.16.

69. The plaintiff was then asked some questions about her visits to the Auburn Healthcare Centre. She gave evidence that she had visited the centre to see the doctor on and off since 2010 but there had not been regular visits. The plaintiff stated that she saw Dr Ragavan on a number of occasions but she was not her preferred doctor although she had a preference to see female doctors. The plaintiff was taken through the details relating to her stress and anxiety in 2011. She generally confirmed the details recorded in the general practitioner notes including that she was very stressed at the time, had a mental health plan prepared by Dr Ragavan and was referred to Ms Betty Lew for counselling.

70. The plaintiff was then asked questions about her first attendances immediately after the accident. When challenged about her evidence that she felt worse three days after the accident compared to the records showing that she felt better, the plaintiff said that this was obviously her memory: T87.18. She could not recall saying on 5 June 2014 that she was feeling better but said she did not keep a record herself. When taken to the various specific records including with the physiotherapist Ms Kwok, the plaintiff could not confirm the accuracy of the records. The plaintiff said she was not told that her pain in her shoulders was due to the way she held her shoulder muscles due to stress. When it was put to the plaintiff that her right hip tightness had decreased by 27 June 2014 the plaintiff said that she did not agree one hundred percent with this: T89.12.

71. The plaintiff was then asked a number of questions about her overseas travel. She agreed that she travelled to Europe in August 2014 for two months visiting a number of countries. She said she went on an organised tour but took a backpack which was full and weighed about 20kg. She also agreed that she had a front pack which she wore in front which she carried onto the plane. She said that this weighed, as far as she could recall, less than the 7kg put to her by counsel for the defendant. She agreed that she went on this trip to Europe within three months of the motor vehicle accident.

72. The plaintiff later confirmed that shortly after, she went on another holiday for one month to India for the purposes of a wedding. She said she took a wheeled suitcase and dealt with her own luggage which was within the 20kg allowance.

73. As stated above, the plaintiff gave evidence that her solicitor, who she went to see shortly after April 2015, referred her to see Dr Abdalla and that up to that time she had seen Dr Ragavan and others in her practice. The plaintiff said Dr Ragavan became less available and took frequent trips. She said she saw Dr Abdalla to get his opinion. He referred her to a radiologist.

74. It was put to the plaintiff that until she saw Dr Abdalla she had never referred to having hypervigilance or flashbacks. The plaintiff disputed this although possibly not those particular words. She said that she had previously mentioned the symptoms which were not limited to flashbacks and hypervigilance to her other general practitioners. The notes of Dr Ragavan in 2014 refer to “still feel palpitation when she drive” and “still have fear of driving”.

75. The plaintiff was then asked questions about a “meltdown” at work in June 2015. She gave evidence that she had a “meltdown” after seeing the results of the MRI scan. This appears not to be correct. The MRI scan is dated 23 June 2015 whereas the “meltdown” seemed to have occurred shortly before.

76. The plaintiff was then asked about her 12 hours of counselling with Ms Felman. She agreed that the approval to get this from Victims Services had nothing to do with the motor vehicle accident and was connected to her alleged assault. She denied the suggestion that it was wrong that she took sick leave at about this time because of her reaction to the scan.

77. The plaintiff was taken to Ms Felman's first report which stated that she was “burnt out” from her work as a nurse at Westmead: Exhibit A page 140. The plaintiff confirmed that this was in the report. The plaintiff was then asked about the reference in Ms Felman's report to being involved in a “very bad car accident”: Exhibit A page 141. The plaintiff said that she believed that she said that she had an accident bad enough to cause her injury. The plaintiff denied that she grossly exaggerated the nature and extent of the car accident to Ms Felman in her consultations: T99.11. The plaintiff said that she did not know whether it was correct to describe the accident as a “fender bender” as put to her by the defendant's counsel and not a heavy collision. However, the plaintiff agreed that she did not see the defendant's car prior to the collision and merely felt the impact upon collision: T99.28.

78. Counsel for the defendant then asked a number of questions of the plaintiff based on entries in her diaries: see T106-110 in particular. The plaintiff confirmed that she kept a detailed diary which she started “a few years ago” but stated it did not include all aspects of her life. The plaintiff disputed that the diaries were only for 2012-16 and said that they covered a range of years. It was put to the plaintiff in a series of questions, that the diaries were very introspective, were prepared in great detail on various topics and covered issues such as personal relationships, desirable partners and significant events, including a comment on work issues and career planning. The plaintiff agreed with those matters but said the diaries were not limited to those topics. The plaintiff confirmed that the diaries included a number of observations made by her including in relation to her parents and work issues.

79. Various diary entries were put to the plaintiff in which she was highly critical of Westmead Hospital staff and the work culture there. The plaintiff said a number of the entries were in her view contradictory. The plaintiff agreed that she had informed her psychologist that the workplace she was practising in at Westmead was very challenging and difficult: T105.1.

80. Various entries were put to the plaintiff which included phrases such as the Westmead Hospital workplace being “toxic”, involving “workplace violence”, that the plaintiff “hated it”, that she was “not rewarded”, it was like a “prison”, or a “black hole”, there was “workplace bullying”, and, being there at her age involved “torture”. It was also put to the plaintiff that she was looking for an “exit strategy” and had developed a plan to leave because, among other things, she had undertaken an analysis of the levels of divorce rates involved in the nursing profession.

81. It was put to the plaintiff that there was not one entry in her diaries relating to the motor vehicle accident but numerous entries relating to Westmead Hospital. The plaintiff said she did not agree that there was no entry relating to the motor vehicle accident. She also said that the absence of entries does not imply causation as to her problems. The plaintiff stated that she included her thoughts and observations and often wrote the entry and moved on. She said the entries did not translate to either action on her part or any impact upon her. The plaintiff also said that the entries put to her were not properly seen in context and could have multiple meanings. The plaintiff also stated that the observations were not of Westmead Hospital “every day”, “everywhere” or of “everyone”: T109.24. The plaintiff stated that while she may have wanted to leave Westmead she did not state that she wanted to leave the profession and she emphasised that in her view the motor vehicle accident has caused her injury: T110.48.

82. Later, an extract from Ms Zhang’s diary was tendered relating to the motor vehicle accident: see Exhibit F. The motor vehicle accident is not portrayed in a particularly negative light by her. The extract includes: “The Universe is telling me something. My crash motivated me to seek a new direction in life and love. Massive change is going in my life right now. Enormous success will come, this crash allowed me to have personal time off to focus on working on my career and finances.”

83. The plaintiff was taken to a number of entries in 2015, particularly apparently in October 2015, critical of the workplace environment at Westmead and which showed that she was looking into various other employment areas. The plaintiff denied that the entries were entirely consistent with an ardent desire on her part to find a profession or occupation different to nursing and midwifery: T115.15. The plaintiff said that the entries were consistent with her desire to learn about different areas through undertaking courses including on YouTube. The plaintiff also said that the entries indicated that she wished to make her life better and reflected her desire to resolve her depression at the time: T115.43. The plaintiff specifically denied that the entries were examples of her decision to change her life away from nursing and did not reflect an inability to cope with the job: T116.17.

84. The plaintiff was asked some further questions about the reference in Dr Abdalla’s notes to her having a “melt down at work” in mid-2015. The plaintiff was also referred to Ms Felman's comments in her first report that she found work at Westmead very stressful and was burnt out. It was put to the plaintiff that she regarded as a “turning point”, events in October or November 2015 during which she had lost her passion for her career. The plaintiff said that this was Ms Felman's observation and obviously she had a really bad day but went back to work. The plaintiff said it was the car accident which changed her perspective. When it was put to the plaintiff that the plaintiff's comments had nothing to do with the car accident she observed that the observation of Ms Felman was correct but her conclusion was incorrect: T118.32.

85. The plaintiff was then asked questions about her ingestion of the antidepressant Valdoxan. The plaintiff agreed with the entry in Dr Abdalla’s notes in October 2016 that she had more energy after she took the Valdoxan and also the entry on 9 November 2016 that it was helping her with her symptoms.

86. The plaintiff was cross-examined in relation to the 17 December 2016 blade incident. It was suggested to her that this was very traumatic. The plaintiff said that the incident had never happened to her previously and she had never encountered such an act from another colleague. The plaintiff agreed with the entry in Dr Abdalla’s notes for 16 January 2017 that following the incident she felt anxious, had awoken with panic twice on two nights and found it hard to cope: T124.50.

87. In relation to an entry in Dr Abdalla’s notes for 15 February 2017 where it is recorded that the plaintiff was able to do the work but felt “attacked” at work, the plaintiff agreed that she felt stressed at work due to the nature of the job she was doing. The plaintiff also agreed that there was an upsetting incident with a baby who had turned blue in April 2017 and that she had been sexually harassed by another female colleague. It was put to the plaintiff that her complaints at this time all related to her work situation. The plaintiff agreed that the majority related to work but that the car crash incident had not occurred at work: T125.25-.35.

88. It was put to the plaintiff that her move to Auburn Hospital and her reduction in her hours of work to two days’ work per week was consistent with her intentions as stated in her diary to reduce her work. The plaintiff said she was vulnerable, under stress, depressed and on medication and these were the reasons. She denied that she was seeking to blame a relatively insignificant motor car accident for all the subsequent problems in her life: T126.27.

89. The plaintiff was then cross-examined in relation to the lists of tasks of the various nursing positions which became Exhibit E. She denied the suggestion that other than discomfort in the first three months for which she had physiotherapy following soft tissue injuries, that every one of the tasks she was able to complete and that the accident did not result in any ongoing physical impairment. When it was put to the plaintiff that she did not have to lift any item weighing more than 15kg in her job, whereas Exhibit E said that she had to do it occasionally, the plaintiff initially agreed with that but then said that she occasionally had to lift heavy linen bags. However, the plaintiff agreed that she carried a backpack on a lengthy holiday to Europe in 2014 after the accident which was a maximum of 20kg in weight with a front bag of between five and 10kg. The plaintiff accepted that she had the front and back pack for a number of months whilst travelling but had not carried it constantly.

90. The plaintiff disagreed that her complaints in relation to her upper back and shoulders had resolved within the first few months of the injury: T129.17. When it was put to her that she was able to continue with her full duties within 10 days of the accident, the plaintiff said she was placed back at work where she had been working but she was not coping. However, she accepted that she completed the job until the following year on a fulltime basis with overtime: T129.19-.43. These included performing all the jobs listed in Exhibit E as the job required those tasks. She confirmed that she was able to do the tasks in that period. However, the plaintiff denied that the only reason that she changed jobs was stress due to the job: T129.50. Upon questioning from the court, the plaintiff disagreed with the proposition that nursing was not what she had expected and she may have been disappointed with the job. She said that she had experience as a nurse as a student in 2009 and saw it as a “great opportunity”. The plaintiff said she was not disappointed “initially”: T130.

91. The plaintiff was then asked a number of questions relating to the matters recorded in the final report of Professor Dennerstein dated 20 April 2018. The plaintiff confirmed that her sleep was mostly not disturbed now: T137.7. She also confirmed that she no longer had intrusive thoughts related to the accident and the events of the day but occasionally had brief flashbacks accompanied by a tense feeling when it was triggered by reminders of the accident: T135.31.

92. It was put to the plaintiff that it was correct that she had intrusive thoughts now only about the various workplace incidents particularly that involving a client threatening her with a blade: Exhibit 1 page 45. The plaintiff said that that was an accurate statement as at April 2018 but it was not now. She agreed that having intrusive thoughts had improved since April 2018, particularly in relation to intrusive thoughts concerning the workplace issues: T136.19-137.10. She said she was no longer still upset in relation to how management handled the blade incident as she regarded it as a matter in the past: T137.26. The plaintiff agreed that she had become a little bit more introspective but disagreed that she was always of that nature: T137.35-.44.

93. The plaintiff agreed that taking Valdoxan had made a significant difference to her: T138.3. It was put to the plaintiff that the depression that she had complained about had resolved with the counselling and medication and that the intrusive thoughts had stopped. The plaintiff agreed that from her own perspective her depression had resolved: T138.13. It was put to the plaintiff that if it was necessary to see a psychiatrist and take ongoing antidepressant or antipsychotic drugs to assist her to return to work that she would do so. The plaintiff said that she would incorporate that as part of a regime which had many components to help her: T138.31.

94. The plaintiff was then asked about her investment property. She denied that she had nothing to do with the physical aspects of the property or that she was physically able to do tasks related to it. When asked about the approximately $5,000 per year spent on maintenance referred to at T76.47, the plaintiff said that this involved a lot of tradespeople who were arranged by Ray White Real Estate, the property manager of the property. She agreed that it was a business decision on her part to engage Ray White but denied it had nothing to do with the motor vehicle accident. The plaintiff agreed that she had assisted in painting parts of the house but had got tradesmen to do the bigger painting jobs. The plaintiff agreed that she could paint, climb a ladder, clean windows and it was possible for her to use a mower, do the edges and weeding but had not done it. She disagreed with the assertion that there was no basis for her to make any claim for the expenses of the property arising from her motor vehicle accident: T140.42.

95. The plaintiff was then asked about her future career plans. She agreed that in her ideal world she would have a job which did not have stress but which had a similar income to her nursing income. The plaintiff denied that the entries in the diary about her plans for leaving nursing were accurate. She said that completion of the diary was a form of therapy and her way to deal with the problem and the items in the diary were merely entries and were not necessarily accurate.

96. The plaintiff agreed that she had not been prescribed painkillers and said she had declined them. She said she had taken Voltaren immediately after the accident: T142.49.

97. The plaintiff agreed that she had consulted a career counsellor for assistance and was considering a position as an executive assistant which she thought she would like to strive for. When it was suggested that an executive assistant could earn up to $100,000 a year, the plaintiff said that she would need to work her way to that type of job. When it was put to the plaintiff she was striving for a position which had no exposure to the potential for death, upset, stress and the work confrontation of a midwife, she denied that: T144.40. She said that she was looking for a role as an executive assistant in the medical field and to acquire new skills for that. When it was put to her that she did not want a job in medicine “on the front line” the plaintiff denied that: T145.8. She said that she believes she would still work as a casual nurse or midwife if the accident had not occurred. When it was put to her that that was incorrect, the plaintiff denied that and said that the impact of the accident was “evident”: T145.21.

64. In re-examination, the plaintiff said that 21 diaries had been produced by her. She said the diary entry referring to the accident (part of Exhibit F) had been written about two weeks after the motor vehicle accident.

65. The plaintiff also gave evidence that she had received massage therapy as a form of treatment when she was overseas in 2014.

66. The plaintiff said she had seen Dr Clayton Smith, psychiatrist, in 2018 who did not ask to see her again. She said she was continuing to take Valdoxan and would see how she went without it but would consider taking it again if needed.

67. The plaintiff impressed me as essentially an honest witness who answered questions directly. She made numerous concessions in her evidence. I accept her as a witness of truth who honestly believes that the motor vehicle accident has had a significant impact upon her. The defendant did not make any submission to the contrary but submitted that that belief was unfounded on the evidence.

The plaintiff's medical evidence

109. As indicated above, the plaintiff tendered a substantial body of medical evidence including medical reports, medico-legal reports and general practitioner consultation notes. In addition, there was a lengthy vocational assessment report, reports from the plaintiff’s psychologist, Ms Felman, and reports from two physiotherapists. I will set out the more significant aspects of this material.

Radiological report – Dr Brian Lam

110. Dr Lam prepared a report in relation to an MRI of the plaintiff's cervical and lumbar spine and a right hip x-ray. The clinical history provided was of an injury to the neck and lower back radiating to the shoulders and right hip from a motor vehicle accident.

111. In relation to the MRI of the cervical spine, Dr Lam reported an annular tear being demonstrated at C5/6 levels which was described as “a potential cause of acute discogenic neck pain". Dr Lam noted mild left C6 foraminal stenosis and mild disc degeneration at C3/4 and C4/5. No other injury was demonstrated.

112. In relation to the MRI of the lumbar spine, this was normal.

113. In relation to the right hip x-ray, Dr Lam reported a normal x-ray with no evidence of osteoarthritis or bony injury. The examination and report date was 23 June 2015, some 11 months after the accident.

114. I will consider below whether the annular tear at the C5/6 level is likely to have arisen from the accident or through degenerative change and whether it is significant in relation to the plaintiff’s injuries and disabilities.

Personal injury claim form and attached medical certificate

115. The plaintiff completed a Personal Injury Claim Form dated 21 May 2015, some 11 months after the accident. The form stated that the accident occurred at 12 noon on 27 May 2014. The plaintiff stated: “I was travelling approximately 60kph when I was reared-ended” by the defendant's vehicle: Exhibit A page 4. The Personal Injury Claim Form has the plaintiff referring to injuries in her back, neck, both shoulders, both hips and “shock”. The plaintiff states that her usual weekly income at the time was $1,217 before tax and $900 after tax. The plaintiff said she received sick pay because of the injuries: Exhibit A page 6.

116. A medical certificate from Dr Abdalla dated 22 May 2015 is attached to the claim form. Dr Abdalla's diagnosis is stated as follows: “Cervical and lumbar injury with radiation to shoulders right hip injury. Anxiety – fear of driving … Insomnia – flashbacks”.

Dr Abdalla's notes

117. I have already set out relevant notes from the plaintiff’s general practitioner at the time of the accident, Dr Ragavan, together with consultation notes from a physiotherapist who the plaintiff saw at the Auburn Healthcare Centre.

118. Dr Abdalla became the plaintiff’s general practitioner in May 2015. I also approach his notes with some care due to the brief nature of them. Relevant entries include the following:

1. 22 May 2015 – Dr Abdalla:

“MVA 27/5/2014 while moving in a straight line another vehicle from behind.

Injuries

– neck pain right shoulder

– pain LBP

– right hip pain with some clicking

– hypervigilance, flashbacks, insomnia. some fear while driving.

Examination:

Mild cervical tenderness right paravertebral ROM good with pain at extremes of movements

Lumbar spine again right paravertebral with good ROM

SLR neg at 90 bilat

Management:

Imaging MRI, physio. CBT”;

2. 22 June 2015 – Dr Abdalla:

“History:

Recently had meltdown at work. Emotional outbreak not functioning properly. Poor memory and concentration.

“Not thinking straight”

Physical injuries continue as stated in past. Swimming helps.

Management:

For CBT and physio.

MVA injuries to neck and lower back pain radiating to shoulders and right hip. For assessment of injuries.";

3. 1 July 2015 – Dr Abdalla:

“History:

Sent home from work. Emotionally labile, poor memory and concentration no motivation. Insomnia

Management:

Explained imaging.

Change of psych."

4. 10 July 2015 – Dr Abdalla:

“Current PTSD neck and back. Depression.";

5. 14 July 2015 – Dr Abdalla:

“History:

Not usual self. More depressed as being “harassed” by work multiple phone calls. Not yet had any therapy as such in no condition to return to work

Management:

No capacity as such need to follow up with physio and CBT”;

6. 27 July 2015 – Dr Abdalla:

“History: Feels able to return to work with restrictions”;

7. 24 August 2015 – Dr Abdalla:

“History:

Work functioning better has more energy.

Psychologist”;

8. 7 September 2015 – Dr Abdalla:

“History:

Met with psychologist Deborah. Feels that it is useful.

Loss of motivation. Wants to feel useful";

9. 3 May 2016 – Dr Abdalla:

“History: Transferred approved feels positive. Last Friday had diff coping at Westmead. Pain ongoing but improving moving on with Chiro. Stopped seeing Deborah for CBT”;

10. 19 May 2016 – Dr Abdalla:

“History:

Unwell today, about to start at ADH on Monday. Some apprehension";

11. 17 June 2016 – Dr Abdalla:

“History:

Has not yet started work at Auburn. Unwell today. Fever yesterday aching. … Internal problems at Westmead stopping her from transferring earlier. A staff member started called [sic] her names, making work environment uncomfortable.”;

12. 29 August 2016 – Dr Abdalla:

“History:

Now working in ADH birthing unit. “Good place to work”

Has psych assessment and suggested medication”:

13. 14 October 2016 – Dr Abdalla:

“History:

Has more energy on Valdoxan. Decreased anxiety. working.

Has been having difficulty at work with planning and payments some issues with management”;

14. 9 November 2016 – Dr Abdalla:

“Valdoxan helping with symptoms”;

15. 3 January 2017 – Dr Abdalla:

“History:

Prior to Xmas witnesses MVA in front of her. Revived memories of MVA.

On 19/12/16 work colleague had blade in her hand and was confronting and threatening to Pt. Concerned about safety and does not feel safe going to work with that colleague. Also during Xmas had to look after 15 beds as the only midwife”;

16. 16 January 2017 – Dr Abdalla:

“History:

Human resources have looking [sic] into incident with colleague and are investigating. Pt feels anxious awakes with panic twice on two nights. Very anxious when has worked next day. Finding it extremely hard to cope. Incident occurred on 17/12 not 19/12 which was noted incorrectly by me.”

17. 31 January 2017 – Dr Abdalla:

“History:

Finding it harder to cope, headache and no energy. Getting down:

18. 9 February 2017 – Dr Abdalla:

“Stress continues up and down. About the same as last visit … Cert issued relaxation techniques”;

19. 15 February 2017 – Dr Abdalla:

“Symptoms getting worse more stress at work. Poor sleep and appetite disturbed. Low mood. Not coping well. Able to do the work but feels “attacked” at work”;

20. 7 April 2017 – Dr Abdalla:

“Symptoms becoming worse. Anxiety getting worse. Having to take the ETOH after work which is not usual for her. Exhausted at work. Had experience with fitting baby who turned blue. Emergency team took time to reach and causing her more anxiety. Sexually harassed by female colleague, physically.”

119. There are no entries for the period after 28 April 2017 to 7 April 2018.

120. Dr Abdalla also provided two reports. In his first report dated 18 November 2016, Dr Abdalla listed his consultations with the plaintiff which commenced on 22 May 2015, about a year after the accident. Dr Abdalla set out the details of the accident and the injuries suffered which are generally consistent with his medical certificate attached to the claim form. However, he referred to anxiety, depression, hypervigilance, flashbacks and avoidance behaviour. Under occupational history he indicated that the plaintiff was intending to become a midwife specialist. He referred to the plaintiff suffering pain and discomfort of the neck, lower back, shoulders and right hip with neck pain radiating to the shoulders and pain in the lower back radiating to the right hip. He also provided extensive details of the plaintiff’s psychological problems including recurrent flashbacks, higher level of fear and anxiety and ongoing nightmares. Dr Abdalla said that an examination of the neck revealed cervical spine tenderness and right paravertebral tenderness with tenderness over the muscles towards the shoulders. He also referred to the MRI revealing an annular tear at C5/6. He diagnosed musculo-ligamentous strain to the cervical spine, lumbar spine and right hip with severe major depression and anxiety which he attributed to the accident. He expressed the opinion that the injuries would continue into the future as they are stabilised and have become chronic. He recommended a treatment program which included physiotherapy, a gym based programme, psychological counselling, pain medication, antidepressant use with Valdoxan and an orthopaedic surgeon review. He expressed the opinion that the plaintiff was not capable of full-time work as a midwife because of the physical demands of the job. He said she was unlikely to return to full-time preinjury duties. He also recommended domestic assistance.

121. In his supplementary report dated 18 August 2018, Dr Abdalla repeated the background in his first report. His diagnosis included musculo-ligamentous strain of the cervical spine (with a C5/6 annular disc tear), of the lumbar spine and the right hip with severe major depression and post-traumatic stress disorder. He recommended similar future treatment referring to the plaintiff's existing significant sessions of physiotherapy, chiropractic treatment and psychotherapy as well as analgesia and antidepressant medication. He repeated his comments in relation to the plaintiff’s work capacity and stated that any future employment would be restricted to up to 20 hours per week with limited lifting, bending and no squatting. He expressed the opinion that the plaintiff's injuries were likely to persist into the future and that there was a good chance of further deterioration.

Phillip Camden – physiotherapist

122. The plaintiff tendered notes from Mr Phillip Camden, physiotherapist. It seems that the plaintiff received physiotherapy services in July 2015 from Mr Camden upon referral from Dr Abdalla. Mr Camden diagnosed cervical and lumbar spine injuries. His notes refer to neck pain and tightness in the right hip. The diagram also showed pain in the plaintiff's shoulders.

Report – Mr Dean Hua, physiotherapist

123. Dr Abdalla referred the plaintiff for physiotherapy services to Mr Hua who provided six treatments from September 2016 to November 2016. Mr Hua prepared a report dated 21 November 2016. The report includes:

“Ms Zhang reported after the incident, she was experiencing depression, neck, back pain due to whiplash injury and right elbow pain due to the impact against the door at the accident. She stated that her neck frequently radiated to both shoulders and to the head causing her headache … It also restricted her from neck, back movement such as turning, bending, carrying more than 5kg loads, prolonged sitting, standing and walking more than 60 minutes as these would increase the pain.”

124. Mr Hua diagnosed cervical disc annular tear injury which was most likely related to the accident’s whiplash injury. Elbow pain was diagnosed relating to a soft tissue injury and the back pain was said to be possibly due to the injury to the neck. Mr Hua expressed the opinion that the injuries sustained from the motor vehicle accident had affected the plaintiff’s work duties and domestic duties. He stated he expected her symptoms to gradually improve with treatment and exercise in at least six months. He stated that she required continuous physiotherapy treatment once a fortnight to help her improve her pain so that she could return to pre-injury physical status."

Vocational assessment report – Mr P Tingle – psychologist

125. A very lengthy vocational assessment report was completed by Mr P Tingle, occupational psychologist. He undertook a vocational capacity assessment in relation to the injury sustained by the plaintiff in the motor vehicle accident of the plaintiff on 6 July 2018: Exhibit A page 75. Mr Tingle provided a detailed overview relating to the plaintiff. In his opinion, the motor vehicle accident had a significant effect on the plaintiff’s career capacity and career outlook. He expressed the opinion that Ms Zhang had a reduced capacity to consider sales roles based upon her continuing fearfulness of driving and being in traffic and a propensity to experience panic attacks. He said that all sales representative roles would require extensive driving. He also stated that a capacity to be competitive as a research assistant would be reduced because of concentration difficulties and social anxiety. Mr Tingle expressed the opinion that the plaintiff’s capacity and ability to gain and sustain employment on the open labour market at the level she had worked at prior to the injury was extremely poor and that her ability to gain and sustain other employment was fair in jobs which were part-time, casual and below the level she could be expected to achieve based upon her education, work experience, skills and the labour market. Mr Tingle mentioned possible jobs as a medical receptionist and research assistant at substantially reduced salaries. But for the accident, Mr Tingle expressed the view that the plaintiff had career pathways available as a clinical nurse specialist, as an education and research student with undertaking a doctorate and as a medical sales representative. For the purposes of his report, Mr Tingle assumed that the information provided by the plaintiff was accurate: Exhibit A page 96. He also provided comments on the differing opinions of Dr Clark and Professor Dennerstein which I will refer to below.

Reports of Ms Debora Felman, psychologist

126. The plaintiff tendered four reports of Ms Debora Felman, psychologist, dated 2 March 2016, 15 November 2016, 28 March 2017 and 27 August 2018. Dr Abdalla, the plaintiff's general practitioner, had referred the plaintiff to Ms Felman in July 2015 and Ms Felman first met Ms Zhang on 4 September 2015: Exhibit A page 140.

127. In her 27 August 2018 report, Ms Felman states that she saw the plaintiff between 4 September 2015 and July 2018 every two weeks. In her 2 March 2016 report, Ms Felman states that she saw Ms Zhang twice “under Medicare and then she put a claim with Victims Services and I received a letter with an approval of 12 hours of counselling”. It appears that this is connected with the alleged assault of the plaintiff in 2014. It is clear from the qualifications referred to in Ms Felman's report that she is an experienced psychologist.

128. In her first report dated 2 March 2016, Ms Felman states as follows:

“Joanne is a 31 years old woman who arrived in Australia from China when she was seven years of age. Joanne had a meltdown at work. She was on six weeks sick leave where she was resting, catching up with her sleep, and a lot of self-care activities, painting and trying to enjoy life at the maximum.

Joanne realised that she was burnt out due to the hospital life. She is a nurse at Westmead Hospital. She is a midwife with a very stressful job, full of responsibility. One year ago Joanne felt that it was a turning point for her: asking herself where she wants to be. Joanne realised that she lost her passion for her career, lost passion for her job. Started to feel unhappy and the pressure was too much."

129. Ms Felman then refers to a number of stressors in the plaintiff's life being:

1. The car accident in May 2014 “leaving her with a PTSD that she starts panicking when she sees a car approaching her or next to her”;

2. “Personal things”;

3. “A patient complaint that Joanne was very distressed about”; and

4. The assault referred to above.

130. The plaintiff informed Ms Felman that she was “not the same person anymore since then”.

131. After considering in detail Ms Zhang’s symptoms, Ms Felman concluded that the plaintiff was suffering from PTSD arising from the accident. She referred to the plaintiff's flashbacks, avoiding situations that triggered her memories of traumatic events, becoming numb and emotionally tense, and having difficulty sleeping with outbursts of anger or irritability and having constant fear for her safety. However, Ms Zhang says that the flashbacks related to “different incidents”. Ms Felman states that the plaintiff definitely wanted a change in her life and the car accident was “the turning point to really start to put herself first, instead [of] her work”.

132. Ms Felman then referred to the fact that the plaintiff continued living with her parents and had a difficult and complicated relationship with her father having been a witness of “abuse” to the plaintiff's mother in emotional and financial terms. A reference to broken relationships between the plaintiff and partners including a third relationship where the man allegedly assaulted the plaintiff.

133. Ms Felman then goes through in some detail the plaintiff's allegedly difficult childhood and her difficult relationship with her father and her desire to change careers. Further, in her report, Ms Felman diagnosed the plaintiff with a major depression and recommended continued psychological treatment.

134. In her second report dated 15 November 2016, Ms Felman repeated much of the material in her first report. Ms Felman continued her diagnosis of PTSD and major depression. By the time of the second report, Ms Zhang said that she had started to work part-time at Auburn Hospital which was a smaller hospital than Westmead Hospital. Ms Felman continued:

“The work was more stressful: first she was working without a doctor's backup, that means that most of the time it was no doctor on site and she was in charge of most of very difficult decisions. Second: the hospital lack of organised administration so she was very stress[ed] (regarding her payments) it was done wrongly and took a long time to be paid correctly). For these two very stressful work conditions, Ms Zhang took the decision of going back to work at Westmead Hospital. She was very clear that she wants still to work only part-time (as a way to control her anxiety). Overall Ms Zhang’s life had improved. She is moving forward very slowly. Dr Abdalla had put her on antidepressants (Valdoxan tablet. Agomelatine 25mg. Dosage: one at night). This tablet is controlling her mild anxiety and she is able to say that she can manage it. .… She feels that she grew up a lot, feeling stronger, wiser and more resilience and not so innocent. Ms Zhang is still having some symptoms of depression but overall she feels stable. Ms Zhang feels more relaxed, with a lot of stamina and with a higher level of energy. … In my professional opinion, Ms Zhang’s psychological state has stabilised to the extent that she is now ready to continue with her life, she is ready to move out and start her own chapter in life, feeling stronger and in control."

135. Ms Felman recommended that Ms Zhang continue to have psychological assistance, to continue on antidepressants and to continue working part-time.

136. In her third report dated 28 March 2017, Ms Felman recommended that Ms Zhang continue to have ongoing psychological services and counselling and to continue on her antidepressants with the antidepressants needing to be checked every six months. She also recommended Ms Zhang to continue working part-time. Ms Felman expressed the opinion that the plaintiff “had suffered psychological injuries as the result of the motor vehicle accident”. This was not further clarified.

202. I have set out above the main opinions in the reports of Dr Dennerstein. I found Dr Dennerstein’s qualifications and experience and the detailed analysis in her reports to be impressive and generally persuasive. Overall, based on the evidence I do not accept that the plaintiff has PTSD at present arising from the accident even in a fairly modest form for the following reasons:

1. The accident in question appears to have been a fairly minor one. Accordingly, it does not appear to me to satisfy Criterion A for PTSD of exposure to actual or threatened death or serious injury. The plaintiff gave evidence that she felt the collision but did not see the approaching car. I accept Dr Dennerstein’s opinion on this issue: see Exhibit A page 53;

2. In relation to Criterion B concerning recurrent, involuntary and intrusive distressing memories of the traumatic events, the plaintiff confirmed in her oral evidence that she no longer had intrusive thoughts related to the accident and the events of the day but occasionally had brief flashbacks: T135.31. Even in relation to her work issues the plaintiff stated that having intrusive thoughts had improved since April 2018: T136.19-T137.10;

3. Dr Clark himself said that the plaintiff had partially recovered and has only some symptoms remaining and that in his view post-traumatic stress disorder was a less severe condition than his previous view of a persistent depressive order: Exhibit A page 55;

4. Ms Felman, while expressing the view that Ms Zhang suffers from PTSD, states that her condition has improved and “she still has some symptoms to deal with” but is not specific as to what these are and whether all symptoms and criteria for PTSD are satisfied;

5. Overall, as indicated, I found Dr Dennerstein’s reports to be particularly persuasive and sophisticated on this issue in relation to the analysis of the plaintiff. Dr Dennerstein did not find PTSD. In her 2 June 2017 report she noted:

“The intrusive thoughts and flashbacks about the accident are no longer concerning her. She describes herself as focusing on her future. She continues to experience anxiety when driving. She is hypervigilant when driving. She prefers to avoid driving and to take public transport.”

6. Dr Dennerstein noted that the plaintiff focused on her anxiety in the workplace. See also Exhibit 1 page 35 (end of page). I accept Dr Dennerstein’s opinion in relation to PTSD and that the plaintiff’s depressive symptoms were not sufficient to meet a diagnosis of major depressive disorder. The plaintiff herself thought her depression had resolved;

7. In her third report, Dr Dennerstein states that the plaintiff said, contrary to her oral evidence (as to her current position), that she did have some flashbacks to the accident. The history given was focusing on the plaintiff’s negative thoughts about her workplace situation.

213. Having regard to the matters I have mentioned, I prefer the opinion of Dr Dennerstein on the basis of her analysis that the plaintiff currently has an adjustment disorder with anxiety (Exhibit 1 page 49) which has stabilised and is connected to anxiety about being in cars and crossing the road and results in the plaintiff limiting her driving. However, despite the opinion of Dr Dennerstein, I prefer the view of Dr Clark and Ms Felman that the plaintiff continues to need psychological and psychiatric assistance in relation to her continuing problems arising from the motor vehicle accident which I have referred to. The symptoms may be fairly mild as Dr Dennerstein states. However, their ongoing nature in my view needs to be properly monitored and treated.

214. If I am in error in relation to my finding as to PTSD, in the light of the opinion of Dr Clark, the comments of Dr Dennerstein and the plaintiff's oral evidence as to her current condition, in my view any PTSD is mild and appears to be continuing to improve. The plaintiff continues to drive as required as she has since the accident in May 2014.

215. In summary, the plaintiff has:

1. Continuing pain and some restrictions in her neck;

2. A continuing need for physiotherapy when required and over the counter analgesia;

3. A need for continued psychiatric/psychological services as required. I note the plaintiff has not been seeing Ms Felman since July 2018. The plaintiff appears to continue to take Valdoxan and some review by her general practitioner would be required in relation to this. I accept that the plaintiff has an adjustment disorder with anxiety which is chronic arising from the accident in the light of an anxious personality prior to the accident and in the context of significant work stress and bullying.

Consideration

Duty of care and breach of duty of care

216. Breach of a duty of care has been admitted by the defendant.

Causation

217. Sections 5D and 5E of the Civil Liability Act 2002 (NSW) (CLA) provide as follows:

“5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements:

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

218. Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The determination of factual causation under s 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is, a determination that in accordance with the section negligence was a necessary condition of occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and it would not have occurred absent the negligence: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]; Curtis v Harden Shire Council [2014] NSWCA 314 per Bathurst CJ at [18]-[22]; at [197] per Beazley P and at [319]–[324] per Basten JA.

219. The question in the present case is what damage did the breach of duty of care by the defendant, which caused the collision and the subsequent physical/psychological injuries of which the plaintiff complains, actually cause?

220. Clearly, the personal injuries which I have found above were caused by the accident. This is established by the medical evidence particularly the general practitioner notes, and the medical reports which I have referred to.

221. Whilst the plaintiff's work experiences and her perception of the workplace difficulties at Westmead Hospital in my view are significant to the plaintiff’s decision to drop her work from four days to two days per week and ultimately to resign from Westmead Hospital, that does not deal with the effect of the plaintiff's injuries in the motor vehicle accident.

222. In my view, the plaintiff’s evidence and the medical evidence establishes to my satisfaction that the plaintiff’s reduction in work from five days per week to four days per week in March 2015 was caused by a number of factors including the workplace problems I have referred to, the plaintiff's physical injuries in the accident and the plaintiff's psychiatric condition arising from the motor vehicle accident. Looking at all the evidence, particularly the psychiatric evidence, I find that the motor vehicle accident caused, on a but for basis, the plaintiff to work only four days per week in the period March 2015 to mid-2017. Thereafter, her decision to reduce (or maintain) her working hours was due to workplace issues not anything to do with the motor vehicle accident. Accordingly, the relevant period is a closed period of loss from March 2015 to mid-2017.

223. I believe that the plaintiff’s psychiatric condition as found by Dr Dennerstein has limited the plaintiff’s capacity to work fulltime hours in her normal nursing duties in that period. The plaintiff still has a psychiatric condition. However, with proper medical attention and medication when required, in my view the plaintiff’s psychiatric condition will resolve itself (or at least be substantially resolved) within a few years and is fairly mild, consistent with Dr Dennerstein's view.

224. Dr Dennerstein stated in her first report that the plaintiff was not then fit to work full-time due to the level of her psychological symptoms. These were connected to the accident and was consistent with the plaintiff’s evidence: Exhibit 1 pages 22-24 especially at 24. A changed opinion was given in the second and third reports: Exhibit 1 pages 36-37 and 50. The second report was dated 2 June 2017.

225. This finding is also consistent in my view with:

1. The decision to reduce from 5 to 4 days per week being taken in March 2015, before the April 2015 complaint;

2. In February-March 2015, the plaintiff was complaining of pains to her neck and low back (see Mr Liu’s notes);

3. The decision to reduce her hours was made by the plaintiff before she saw her current solicitor or Dr Abdalla.

226. I would therefore allow a loss of a capacity for work of about one day for a closed period from 1 April 2015 to mid-June 2017. After that, any incapacity was due to work issues. However, the plaintiff continued to have psychological and psychiatric issues due to the motor vehicle accident which required treatment as she obtained from Ms Felman.

Contributory negligence

227. There is no pleading of contributory negligence.

Damages

Non-economic loss

228. The plaintiff has not reached the impairment threshold of greater than 10% which allows for an award for non-economic loss under the Act. I will consider the various other heads of damages claimed.

Past out of pocket expenses

229. The plaintiff’s total claim for past treatment expenses is $10,775.77. The defendant would allow a reduced figure: see her written submissions.

230. Looking at the plaintiff's claims in the Amended Statement of Particulars filed on 17 October 2018, I am not satisfied that the claim for $300 concerning admission to the Sydney Olympic Park Aquatic Centre and the claims for massage totalling $1,020 are caused by the accident. The plaintiff had considerable ongoing stress in her workplace and in the light of that I am not satisfied of the relevance of these expenses. I would allow $9,455.77 under this head. The other treatment expenses appear reasonable and warranted on the medical evidence.

Future out of pocket expenses

231. For the reasons given above, I would allow:

1. An allowance for physiotherapy treatment as required over a period of three years;

2. An allowance for pain medication such as Panadol and Ibuprofen as needed.

232. In relation to psychiatric/psychological treatment, I would allow for:

1. Review four times a year by a psychologist for three years. I prefer the views of Dr Clark and Ms Felman as to the need for review. The plaintiff remains on Valdoxan;

2. Antidepressant medication as required. I note the plaintiff will attempt to remain off her medicine after she completes her current prescription;

3. I would allow for two GP consultations per year for three years. I am not satisfied in relation to the claim for a dental treatment plan as being caused by the accident. The plaintiff has many other causes of stress relating to her working history.

233. In my view, it is best to deal with this matter as a lump sum claim as the plaintiff proposes in her Amended Statement of Particulars. Doing the best I can on the evidence, I allow $5,000 for future treatment expenses as indicated above.

Past economic loss

234. As stated above, in my view the accident caused the plaintiff to reduce her working hours from five days a week to four days per week from March 2015 being a reduction from 38 hours to 32 hours per week. In her Amended Statement of Particulars dated 10 October 2018 filed on 17 October 2018, the plaintiff provides a summary of the claimed loss based on the financial materials in Exhibit B, which to me appears reasonable as a basis for calculation with some discounts. Accordingly, I allow the following gross amounts for the following periods consistent with part of the plaintiff’s submissions in the Particulars:

Period	Amount
30 March 2015 to 10 May 2015	$5,143.31 gross
11 May 2015 to 5 July 2015	$6,597.74 gross
6 July 2015 to 22 May 2016	$26,522.70 gross
23 May 2016 to 14 August 2016	No claim
15 August 2016 to 18 June 2017	$14,018.00 gross
19 June 2017 to 27 August 2017	Nil awarded

235. A net sum will need to be arrived at by the parties.

236. In addition, the plaintiff’s figures allow for various amounts for over-time and shift loadings. The plaintiff may not have obtained the benefit of these at all times and some discount will need to be made for this possibility. I discuss this further below.

237. The plaintiff makes a claim for loss of sick leave and recreational leave. I am not satisfied in relation to these claims. First, the plaintiff would have lost any sick leave accrued when she left Westmead Hospital anyway in accordance with her future plans. I accept there is some likely loss of annual leave but this is limited as it is calculated on the one day per week lost. Also, I need to take into account the possibility that the plaintiff would have reduced her hours anyway. It is noted that the plaintiff on the evidence suffered the threat with the blade in December 2016 and some alleged sexual harassment issues at work from another nurse. I also take into account the possibility that the plaintiff would not have obtained the over-time and loadings claimed consistently. The possibilities of the plaintiff reducing her hours anyway or not working shifts need to be considered in accordance with the principles in Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638 and Avopiling Pty Ltd v Bosevski [2018] NSWCA 146. In my view, these possibilities are best dealt with by approaching the matter generally and making no allowance for the loss of annual leave. The plaintiff also may have taken more annual leave because of her problems with her work environment. Overall, in my view, doing the best I can to take into account contingencies, a proper approach is to make no allowance for annual leave.

238. I leave it to the parties to calculate the loss of past earnings in the light of the above analysis. Obviously, it needs to be calculated on a net basis.

239. If agreement cannot be reached then the matter will need to be listed for further argument.

Past superannuation loss

240. The calculation of any loss of past superannuation will turn on the final amount of the loss of past earnings.

Claim for loss of future earning capacity

241. The plaintiff claims a very considerable amount for future economic loss. This is based on a claim of lost wages from the date of the hearing for 34 years. In my view, such a claim is excessive and is not supported by the evidence.

242. I take into account Dr Dennerstein's opinion in relation to the plaintiff's continuing anxiety in relation to motor vehicle use although the plaintiff has continued to drive her car to and from work since 30 June 2014. In my view, the damages for loss of future earning capacity are best considered on a buffer basis. I set out the principles relating to the award of damages for loss of earning capacity on a buffer basis in paragraphs 216-222 of my decision in Hyjer v Lopes [2018] NSWDC 8. I apply those principles in the present case. I find on the balance of probabilities that the plaintiff has suffered a loss of future earning capacity in this regard. I reject the defendant’s submission to the contrary.

243. In my view, there is a possibility that the plaintiff may suffer economic loss in the future as a result of avoiding positions where extensive car travel is required having regard to the condition found by Dr Dennerstein. Taking into account the risk of the plaintiff being limited for a period of say three years in jobs requiring extensive driving, I allow a figure of $25,000 as a buffer for loss of future earning capacity. I find that, but for the accident, the plaintiff would have ceased nursing about when she did. She would then likely have pursued the alternatives I have indicated above. One of those is medical sales. I would propose to make no further allowance for future superannuation loss as the plaintiff may obtain suitable employment earlier and in accordance with the need for a discount under the principles in Avopiling, above.

Future domestic assistance/commercial assistance

244. There is no claim made for past domestic or commercial assistance. The plaintiff currently lives at home. Both Dr Clark and Dr Dennerstein state that no allowance is required for domestic assistance for psychiatric reasons.

245. The plaintiff currently lives with her parents. There is no suggestion of a need for commercial assistance while she continues to live there. The plaintiff’s own evidence is that she is likely to be living with her parents for the foreseeable future even if she gets employment fairly soon.

246. I was not satisfied from the plaintiff's evidence that any costs relating to maintenance on her rental property were due to any inability on her part. It seems convenient for her to use a real estate agent to manage the property and the plaintiff has engaged in some maintenance issues herself of a straightforward nature such as painting.

247. Having regard to the limited complaints of physical problems recently by the plaintiff, I am not satisfied on the evidence of the need for any award for future paid commercial assistance: see Smith v Alone [2017] NSWCA 287 at [73]-[77]. I accept the defendant’s submissions on this issue.

248. Accordingly, the amounts I allow in damages in the following heads are as follows:

Past out of pocket expenses	$9,455.77
Future out of pocket expenses	$5,000.00
Past loss of earnings	to be calculated having regard to the reasons above
Past loss of superannuation	to be calculated having regard to the reasons above
Loss of future earning capacity (buffer)	$25,000.00
Future paid commercial assistance	Nil

Disposition

249. For the above reasons, I make the following orders:

1. Judgment for the plaintiff against the defendant.

2. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

3. The parties are to bring in agreed Short Minutes of Order within 7 days for a judgment amount consistent with these reasons.

4. Liberty to the parties to apply within 14 days for a costs order different to that set out in (2) above.

1. Liberty to the parties to apply to the Associate to Dicker DCJ on three business days’ notice if there can be no agreement in relation to the judgment amount.

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Decision last updated: 12 December 2018