Bao v Haynes & Anor

(Exhibit "A", Volume 1, p 774) 7. The plaintiff makes the claim, disputed by the defendants, that because of the injuries she sustained in those accidents, and despite treatment, she has suffered a total loss of her earning capacity. The defendants assert that the plaintiff has failed to mitigate her damages.

Issues for determination

1. The issues to be determined in these proceedings concern the resolution of disputed matters relating to the plaintiff's entitlement to damages. Those matters may be conveniently summarised as follows: 1. The credibility and the reliability of the testimony of the plaintiff and her husband. My findings on those matters, which draw conclusions adverse to the plaintiff's credit and reliability as a witness, appear below between paragraphs [283] to [339] of these reasons; 2. The reliability conclusions to be drawn from the array of assembled medical and allied reports in evidence which are influential to the required factual findings to base a damages assessment. My findings on those matters, and on a series of related sub-issues, appear below between paragraphs [340] to [419] of these reasons; 3. Factual findings on matters of contentious facts and causation relevant to the assessment of damages. My findings on those matters appear below between paragraphs [420] to [441] of these reasons; 4. Whether the evidence justifies a finding sought by the defendants to the effect that the plaintiff has failed to take reasonable steps to mitigate her damages as was required of her by s 136 of the MAC Act. My findings on that question appear below between paragraphs [427] to [441] of these reasons; 5. The assessment of the plaintiff's claim for damages. My findings on those matters appear below between paragraphs [442] to [564] of these reasons.

Ambit of claim for damages

1. The outcome of the regulated medical assessment scheme governing the formulaic processes of the Medical Assessment Service for identifying the residual level of the plaintiff's whole person impairment was that she did not achieve a certified level of impairment assessment greater than 10 percent. Therefore, she is not entitled to claim damages for non-economic loss: s 131 of the MAC Act. The parameters of her remaining claims must therefore be confined to economic damages, damages for domestic assistance, past and future treatment expenses.
2. The ambit of the respective schedules of damages provided by the parties was widely divergent. The plaintiff's initial damages schedule was in the amount of $4,112,217. A subsequent amended version of the plaintiff's schedule of damages reduced her claim to $3,812,217. In written submissions, the plaintiff's damages schedule was further reduced to a claim for $1,816,657.
3. In contrast, the damages schedule initially submitted by the defendants was in the amount of $8,000. In oral submissions the defendants fairly conceded there was scope in the evidence to base a finding for a higher amount which incorporated an allowance for a "modest" economic cushion in the form of a buffer sum of the order of $200,000 to $300,000. In making that concession during argument, the defendants did not concede that the plaintiff was entitled to any damages for past economic loss or damages for the cost of past and future domestic assistance.
4. The plaintiff's claim for economic loss was complicated because, at the time of the first accident she was employed by her husband, Dr Zion Chan, a cosmetic surgeon. He employed her through his corporate entity as a beautician and manager in his cosmetic surgery business. He too was injured in that accident, and ultimately found that he had to close that business, including the department in which the plaintiff was employed.
5. At present, the plaintiff and her husband are living separately, with the plaintiff living in Sydney, with Australian permanent residency status, whilst her husband, an Australian citizen, is living in Shanghai, in China.
6. Those circumstances must necessarily influence the scope for the quantification of the plaintiff's claim for past lost earnings and future loss of earning capacity.

Summary of outcome

1. In summary, for reasons that will be made clear in the appropriate context, I have found the plaintiff to be an unsatisfactory witness whose evidence was revealed to be untruthful and unreliable on some critical matters of credit. I have not accepted her evidence on matters in contention unless objectively corroborated by unchallenged evidence that was not otherwise improbable.
2. I have not accepted the plaintiff's submission that she has incurred an injury-related total loss of her earning capacity. I have assessed the plaintiff's entitlement to damages in the total amount of $576,272. She is therefore entitled to a verdict and judgment in that sum, less adjustments for statutory for offsets, plus costs.

Structure of these reasons

1. As a prelude to the consideration and the findings concerning the above issues and the related sub-issues identified at paragraph [8] above, to reach the required findings, the structure of these reasons involves an evidence overview, the identification of facts not in dispute, a review of the documentary evidence which includes a crash analysis report, a chronological review of the array of medical and allied evidence, a review of the plaintiff's income tax returns, and the review of two forensic accountant's reports relating to the former business of the plaintiff's employer, her husband, in his cosmetic surgery business.

Evidence overview

1. The evidence relied upon by the parties comprised both documents oral evidence.

Documentary evidence

1. The parties produced a two volume Court Book: Exhibit "A", pp 1 - 2007. On close examination of the array of the incorporated medical and allied reports and notes, some of which were incompletely copied which required that the court book be augmented: p 153A; pp 238A-J; Exhibit "B"; Exhibit "C". Unhelpfully, the court book was sparingly indexed. It was structured in a non-chronological order and included randomly duplicated documents. It contained a sparse chronology without cross-reference to the compendious documentary evidence. In these reasons, specific pages of the court book will be referred to where it becomes relevant to do so.

Oral evidence

1. At the outset of the hearing, during opening addresses, it was indicated that the plaintiff and her husband Dr Chan would be giving oral evidence to supplement their written evidentiary statements. At the time of the hearing, he was in Shanghai. The plaintiff gave oral evidence to augment her written evidentiary statements. Ultimately, despite several earlier indications that Dr Chan would be giving evidence by means of an AVL link, he was not called to give oral evidence. His only evidence comprised his evidentiary witness statements: Exhibit A, Volume 1, pp 136 - 147. He was not required for cross-examination on the content of those statements. The absence of his oral testimony left significant matters of historical and contextual detail unexplained concerning the corroboration of the plaintiff's injuries and disabilities, his role in her medical referrals, and her claim for economic loss.

Plaintiff

1. The plaintiff gave her evidence mostly in the English language. She occasionally invoked the assistance of a Mandarin interpreter.
2. The plaintiff's oral evidence in chief was in relatively brief terms (T10 - T17) because her evidence was largely contained in her evidentiary statements which formed part of the court book: Exhibit A, Volume 1, pp 118 - 135. Those statements, which were prepared on her instructions by her former solicitors, had problematic factual deficiencies and inconsistencies that were not fully resolved during her oral evidence, or by agreement reached in the course of argument. She was extensively cross-examined (T17 - T86), and she was briefly re-examined: T86 - T87.
3. The plaintiff was challenged on multiple topics in cross-examination. The topics of material significance to the outcome of the proceedings will be identified and considered when identifying my credit findings, and my findings on key matters of fact in dispute.
4. It was obvious to the observer that the plaintiff found the process of giving oral evidence significantly discomforting, both physically and emotionally. She was occasionally tearful, and she needed to have breaks from giving evidence. She frequently changed her physical position and posture in the witness box, including by occasionally standing, apparently to relieve her physical discomfort.
5. A relevant context of the circumstances in which the plaintiff gave her evidence was that she said that she had taken strong pain killing medication. She said she was sleep deprived. At times she displayed overtly distressed emotional reactions, and at other times she remained silent and seemed remote when cross-examined. At other times she needed to take breaks to regain her composure.
6. It was not suggested, either directly to the plaintiff, or in submissions, that those instances involved either exaggeration or false claims on her part. When giving oral evidence, she seemed to be in a very fragile emotional state. No psychological or psychiatric evidence was introduced to provide an explanatory context for her apparent emotional responses.
7. At this point it should be stated that, in my view, the cross-examination of the plaintiff by Senior Counsel for the defendants on matters of fact and credit was properly conducted with due consideration and sensitivity to the plaintiff's circumstances.

Dr Chan - not called to give oral evidence

1. Although Dr Chan was scheduled to give evidence via an AVL link from Shanghai with due regard to time zone differences, and although pre-arrangements were made for this to occur, during the cross-examination of the plaintiff, without explanation, it was indicated that Dr Chan would not be called as a witness in the proceedings, whereas at one stage it was proposed that his evidence be interposed during a break in the plaintiff's evidence: T51.3. In the absence of material challenges to his evidentiary statements, the content of those statements will be considered and drawn upon where it might be probative on particular matters involving credit, reliability of testimony, and fact.

Domicile

1. The couple presently live separately. The plaintiff lives in a rented apartment in Sydney with their 9-year-old daughter who attends an eastern suburbs private school in Sydney. The plaintiff's mother, who lives in China, pays for the rent of that apartment, and for those school fees.
2. Dr Chan presently lives in Shanghai with the plaintiff's parents. His supplementary statement dated 1 August 2022 suggests he moved there in December 2019 following a decline in his economic circumstances, including the sale of his investment properties: Exhibit "A", Volume 1, p 146.
3. Although Dr Chan's supplementary statement expresses his intention to return to Australia when his economic circumstances improve, the evidence of the plaintiff is ambiguous as to whether their separation is of a temporary geographic nature, or whether it comprises a formal marital separation: T44.47 - T45.4.
4. The tenor of the plaintiff's evidence concerning their limited communications of late, her vague deflective answers, and a pre-accident history of marital conflict after just months into their marriage, suggest that the separation might not be just geographic, but that is not a concluded view.
5. On the evidence it is difficult to form a concluded view on this question because of the plaintiff's documented pattern of travel where, between 26 December 2014 and 11 April 2023, she has made 16 return trips between Sydney and Shanghai, the longest period away from Sydney being 18 weeks between 30 November 2019 to 11 April 2023: Exhibit "D". Those trips were undertaken in business class: T77.38.
6. The domicile question arises because there is evidence of a pre-accident history of some marital difficulties between them (Exhibit "A", Volume 1, p 204; pp 594 - 595; Exhibit "A', Volume 2, p 1235) and the vagueness of the plaintiff's evidence on whether she and Dr Chan are separated: T44.15.

Background facts not in dispute

1. The facts set out in the ensuing paragraphs are not in dispute. Where such facts relate to other facts that were in dispute those matters in contention will be identified in the relevant context for subsequent consideration.
2. In order to identify an appropriate factual baseline for assessing damages, it is convenient to first review the pre-accident circumstances of the plaintiff and her husband, Dr Chan.

Plaintiff's pre-accident circumstances

1. The plaintiff was born in China in 1990. She is presently aged 33 years. In China she completed her secondary education to the HSC equivalent level. As an adult, she came to Australia on a student visa and embarked upon tertiary studies. Since her marriage here 10 months before the first accident, she now has an Australian permanent residency visa which is subject to renewal.
2. The plaintiff's credit was substantially challenged in these proceedings. In addition to challenges on what may be considered to be peripheral issues, her credit was specifically challenged on the content of some factual misrepresentations she made to the Australian Government when she last applied to have her permanent residency visa renewed.
3. In Australia, the plaintiff completed a year of studies towards a Diploma of Accounting. She then switched courses and went on to complete a 3-year Bachelor of Business degree. She and Dr Chan married in Australia in January 2014. They have a daughter who was born in Sydney in April 2014. At the time of her first accident, their daughter was aged 8 months. She is an Australian citizen.
4. About 2 to 3 months before the first accident, the plaintiff commenced working in her husband's cosmetic surgery business in addition to managing their home and undertaking childcare responsibilities. These circumstances have been contemporaneously described by an assessing psychologist as being an onerous struggle for her.

Dr Chan's pre-accident employment of the plaintiff

1. Dr Chan and his parents came to Australia when he was a child. He was educated in Australia. He is an Australian citizen. Before the first accident, in which he too was injured, he operated a busy cosmetic surgery business in Sydney. In 2006, he entered into a prior marriage which was followed by a separation in 2010. That marriage ended with a formal divorce in November 2013.
2. Pre-accident, Dr Chan's cosmetic surgery business included a Beauty Department which, from a date about 2 months before the first accident, was managed by the plaintiff, as his employee.
3. Dr Chan's business arrangements involved a series of complex corporate and trust structures. These were apparently complicated by the financial arrangements he had made following the divorce which ended his first marriage. His cosmetic surgery business traded through a discretionary trust structure called Zion Trading Pty Ltd. The plaintiff's employment in that business commenced about 2 months before the first accident.
4. In addition to the plaintiff's administrative role in that business, which involved her making and supervising bookings by patients and customers, and dealing with financial matters, she also she provided some clients of the business with a range of beauty treatments. Those procedures included facials, skin treatments, eyebrow tattooing, injections, and a variety of other services that were complementary to her husband's cosmetic surgery business.
5. The plaintiff's work in the beauty department of that business was "hands on". Her physical tasks included adopting and maintaining a sustained forward bending or forward leaning posture over customers whilst providing them with various forms of beauty treatment, including eyebrow tattoos, and administering injections. Her working hours in that role were generally between 10am and 6pm, and sometimes up to 7 pm Monday to Friday, on five, and sometimes six, days per week.
6. The plaintiff said she was paid about $190,000 per annum gross for that work. In fact, the financial records show that in the financial year ending June 30th, 2015, she was paid the gross sum of $200,198,
7. The plaintiff had only commenced employment in her husband's business in the second half of 2014. It appears this was in about September 2014, which was some months after the commencement of the financial year ended June 30th, 2015. Following the accident on 14 December 2014 she did not carry out full duties for the remainder of that financial year. It therefore remained unclear as to whether the payment of that sum of $200,198 represented the plaintiff's actual earnings from personal exertion, or whether that sum included a component of sick leave.
8. The evidence was left unclear as to whether the amounts disclosed in the employer's financial records as the plaintiff's salary represented the market value of the work she performed, or whether those amounts were simply allocated as discretionary distributions of trust income as a means of income splitting.
9. The plaintiff's evidence on the economic loss claim was somewhat limited. This was surprising, given her financial qualifications and her own corporate role in her husband's business. The consideration of her economic loss claim requires a review of the financial results of that business and her own tax returns.

Plaintiff's pre-accident health

1. The plaintiff stated that pre-accident, she had been in excellent health. In her first evidentiary statement, she said she had not suffered any significant pre-accident injuries or illnesses. She also stated that pre-accident she was able to perform all her work tasks, domestic chores, childcare activities, leisure activities, and activities of daily living without restriction or hindrance, and without the need to engage domestic assistance: Exhibit "A", p 120, paragraphs 20 - 22. The defendants challenged the factual accuracy of aspects of that evidence.
2. The plaintiff's statement by which she claimed to have had pre-accident good health stands to be evaluated for factual accuracy in light of an aspect of unchallenged contrary medical and psychological evidence as to her pre-accident psychological well-being.
3. Although the plaintiff was not specifically challenged on the content of the historical matters extracted from her medical records as now follows, in my view, her claim of being an excellent pre-accident state of health needs to be significantly qualified and read down.
4. This is because of a pre-accident historical entry found in the records of her treating general practitioner, and a related letter from a psychologist to whom she had been referred for assistance regarding some pre-accident mental health problems, as summarised below.
5. On 9 October 2014, which was just two months before the first accident and shortly after the plaintiff commenced employment in her husband's business, the progress notes of the plaintiff's general practitioner, Dr Denise Huang, noted that a consultation with the plaintiff had taken place that day. Those notes recorded a queried diagnosis of the plaintiff suffering from depression in the context of a recent suicide attempt, which had resulted in a hospital admission.
6. Dr Huang's handwritten notes on this subject are difficult to interpret in their entirety. However, it appears that following a long discussion with the plaintiff at that time, Dr Huang noted the plaintiff had issues of concern regarding her work, and in coping with the care needs of her baby. She was prescribed Zoloft, and she was referred to Ms Ming Sze, a psychologist: Exhibit "A', Volume 1, p 612.
7. On 9 October 2014, which was on the same day as Dr Huang's referral, the plaintiff was seen by Ms Ming Sze in a psychological consultation. The plaintiff had only one session with Ms Sze, without any follow up arrangements being made to be seen again. Ms Sze wrote a report of that consultation on 24 November 2014: Exhibit "A", Volume 1, pp 594 - 595; Volume 2, p1235.
8. In her report of that consultation, Ms Sze noted that she had seen the plaintiff on that day following a suicide attempt in August 2014, which was 4 months before the first accident. The history was that the plaintiff had overdosed herself with paracetamol and had been admitted to St Vincent's Hospital in Sydney for 48 hours, where she was observed and received counselling.
9. The recorded background to the plaintiff's suicide attempt was described as marital distress in the context of having a 6-month-old infant to care for, and a background of frequently occurring conflicts with her husband over family finance issues, and conflict over her limited social support. She reportedly felt unsupported by her husband concerning childcare issues.
10. In Ms Sze's pre-accident report on those matters to Dr Huang, she recorded the range of the plaintiff's complaints at that time to be sleep problems, loss of appetite, social withdrawal, loss of concentration which affected her studies, and reduced memory function.
11. In light of the above matters, the plaintiff's evidence, in which she appeared to have glossed over those matters and claimed that she was in an excellent pre-accident state of health, must be seen to be unreliable because of objectively demonstrated inaccuracy.
12. Ms Sze's report on her consultation with the plaintiff concluded that the plaintiff no longer felt suicidal, and that the marital relationship had improved. Ms Sze's impression was that the plaintiff was feeling overwhelmed at the time because of a need for her to run the new business within the Beauty Department which had commenced about 3 months earlier, being a new mother, and pursuing her studies, all of this having occurred in circumstances where she was getting only limited support from her husband. The dates were loosely described in that history.
13. Ms Sze suggested the plaintiff would benefit from cognitive behavioural therapy focussing on stress management skills, relaxation training, problem solving skills, and cognitive restructuring. The evidence was silent on the question of whether the plaintiff had in fact obtained any psychological assistance along the lines Ms Sze had suggested.
14. In oral submissions, Counsel for the plaintiff sought to downplay the significance of the above-cited events, characterising them as being within the range of the normal incidents of a marriage. He argued that the plaintiff's history of psychological problems, as cited above, which had in the past overwhelmed her, should be seen as being a past adverse health event which was no longer of relevance in the context of her injuries and her case. There was no medical or allied evidence to support that submission. On the state of the evidence, I do not accept the aptness the submissions made on the plaintiff's behalf along those lines.
15. In making that submission, Counsel for the plaintiff went on to cite the well settled damages principle that the defendants must take the plaintiff as she was found, including any underlying vulnerabilities that might be at play in her pre-accident circumstances. That submission needs to be evaluated in the context of the onus of proof borne by the plaintiff regarding such matters, and the absence of medical evidence of any underlying vulnerabilities that might perhaps have been affected or aggravated by the effects of the accident.
16. In my assessment, whilst observing the conventional caution against demeanour-based assessments of the credibility of testimony, the determinative weight of the above-cited submission should be discounted insofar as it is suggested that there was an aggravation of an underlying condition.
17. I have come to that view because there was no medical or allied evidence which might have explained the plaintiff's reactions and emotional presentation in the witness box, where, at times in her presentation, she appeared overwhelmed, distressed, weeping, and she needed to have a number of breaks from questioning to regain her composure, where at times she appeared to be emotionally labile, she appeared remote, and she was silent and unresponsive to some questions: T42.42; T48.17; T54.30; T58.40 - T59.16; T86.45.
18. In my view, those episodes have some contextual relevance to a consideration of the credibility and the reliably of the plaintiff's evidence regarding the reliability of her responses to questions, where such reactions arose in the context of specific challenges that the defendants made to aspects of her evidence.
19. Counsel for the plaintiff argued that those reactions were in effect due to the plaintiff's situational stress during cross-examination, which, it was argued, resulted in her having trouble recollecting significant matters of detail long after the events. There were literally scores of such instances where the plaintiff could not recall significant matters of detail about which she was questioned. Those matters will be identified at a later point in these reasons when recording findings on the credibility and the reliability of her testimony.
20. At this point it is pertinent to observe that the objective records show that the plaintiff was experiencing difficulties with memory function before the first accident, albeit in a different context, as identified at paragraph [59] above.
21. Against the above background it is relevant to review the evidence as to Dr Chan's pre-accident situation.

Dr Chan's pre-accident situation

1. The factual matters relating to the plaintiff's husband, Dr Chan, as summarised below, are taken from his evidentiary witness statement tendered in evidence (Exhibit "A", Volume 1, pp 136 - 147) and the forensic accountancy reports obtained by the defendants which revealed background factual matters.
2. Dr Chan's evidentiary statement was prepared for the purpose of him presenting evidence in own substantial personal injuries damages claim arising from the accident on 14 December 2014. The detail, the course, and the outcome of that claim did not feature in the evidence in this case,
3. Dr Chan was born in China in 1977. In 1989, when aged 12 years, he migrated to Australia with his family. He completed his secondary education in South Australia. In 2001 he obtained the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Adelaide. In 2008 he completed a course of training as a surgeon. He then commenced his own practise as a cosmetic surgeon. He described that practice as being successful.
4. It appears from the financial analysis obtained by the defendants, that Dr Chan's divorce from his first wife in 2013, some thirteen months before the first accident, had a significant pre-accident impact on his financial position in the lead up to that accident.
5. At the time of the first accident, Dr Chan was aged 37 years. He stated that immediately before the 2014 accident in which both he and the plaintiff sustained injures, he was in excellent health. He was running his clinic in Sydney 5 days per week. He stated that he was structuring his professional time in the business between consultations and performing surgical procedures.
6. A forensic accountant's report which analysed Dr Chan's financial arrangements reveals that by using income he generated from his practice, through his corporate and trading entities, he used his practice income to trade on financial markets, an activity which ultimately resulted in him incurring significant financial losses. This raised the imponderable question concerning the long-term viability of his cosmetic surgery business and his ability to provide the plaintiff with continuity of employment in that business.
7. Dr Chan said that when he was operating in his practise, on average, he was performing between 12 and 16 breast augmentation procedures per week, earning fees of about $8,000 per procedure, and performing 1 to 2 rhinoplasty procedures per week, the latter being more time consuming, and earning fees of between $10,000 to $12,000 each for those procedures. Those descriptions suggests that before the 14 December 2014 accident, he not only had the potential to achieve very high earnings, but he was exposed to potentially high trading losses as well because he used his practice income to trade on financial markets.
8. Dr Chan stated that it was his pre-accident intention to expand his cosmetic surgery business, including by engaging other qualified employees and surgeons so that they would take on his overflow of work. His plan was to continue running his business in that manner until the age of at least 70 years.
9. Ultimately, as events turned out, it was suggested that Dr Chan's ambitions were at least in part thwarted by the effects of the injuries he sustained in the accident on 14 December 2014, where those injuries had an adverse impact upon his ability to work as a surgeon at pre-accident levels, and this affected the viability of his business plan.
10. I will return to a consideration of those circumstances, and to a consideration of the plaintiff's most likely circumstances but for her injuries, in my analysis and findings concerning the plaintiff's claim for economic damages: s 126 of the MAC Act; s 13 of the CL Act.

First accident - 14 December 2014 - claimed injuries and aftermath

1. Ms Bao's stated that the first accident occurred at about 3.30pm on 14 December 2014. At the time she was a seat belt wearing passenger in the front seat of her husband's vehicle, a Maserati sedan, which at the time, was stationary, in traffic. He was in control of the vehicle at that time.
2. Ms Bao stated that in the collision the vehicle in which she was seated was struck from behind by the first defendant's vehicle. She described the impact as being "large". Dr Chan's statement also described that impact as being "large".
3. Ms Bao's evidentiary statement described the force of the impact as causing her body jerk backwards and then forwards. Beforehand, she said that her head was bent forward whilst she was looking at her phone. Prima facie, that description of the sequence of events and the movement to her body seemed unusual when compared to Dr Chan's description of the events. That said, this issue was not explored in her oral evidence as a matter involving controversy.
4. In making that comparison, I observe that Dr Chan described the impact of the first accident as causing his body to be jerked heavily, backwards, and then forward, resulting in his neck making forceful contact with the seat headrest. He described his own injury as a hyperextension injury. He stated that the collision 2014 had occurred without warning, and without any sound of the screeching of brakes from the vehicle that had struck the rear of his vehicle. After the collision he noticed that the rear bumper bar of his vehicle was damaged. There was no detailed description of that damage in his evidence,
5. Ms Bao stated that after the collision, she initially she felt shocked. From her description of the events, it seems that she was primarily concerned with the welfare of her young daughter who had been on the back seat of the vehicle. She stated that following the journey home she began to feel discomfort in her neck. At the suggestion of her husband, a medical practitioner, she sought out massage therapy from Mr Brad Hughes, a massage therapist who practised from rooms near Dr Chan's clinic.
6. During oral submissions attention was drawn to the fact that there was no report or document which described the treatment Mr Hughes had provided to the plaintiff, although a document from him was considered by the defendants' medical expert. By leave granted, the parties forwarded a document from Mr Hughes which became Exhibit "C" in the proceedings.
7. That document shows that the plaintiff received some 15 massage therapy treatments from Mr Hughes between 20 December 2014 and 22 August 2015 at a total cost of $1085. That cost was met by the CTP insurer pursuant to s 83 of the MAC Act, and it will be added to the amount claimed for out-of-pocket expenses.
8. In her evidentiary statement Ms Bao said that in the weeks that followed the first accident, she noticed that in addition to her neck pain, she was also experiencing pain and discomfort in her lower back. The accuracy of that evidence was the subject of challenge. She said that she sought massage therapy which was directed to relieving her increasing levels of neck and back pain. To a degree, Exhibit "C" corroborated that evidence.
9. That claimed history of back pain is an important point of focus for analysing the reliability of her evidence as to the extent of her injuries from the first accident when considering the content of the medical evidence relied upon by the defendants.
10. In early February 2015, which was about a month after the plaintiff's first accident, according to her evidentiary statement, she said that due to her experience of ongoing and increasing neck and back pain, she and her husband decided to consult a local general practitioner, Dr Danny Cai.
11. Ms Bao stated that Dr Cai had advised her that she had suffered soft tissue injuries in the first accident, and that she should continue the massage treatments she had been receiving, and take anti-inflammatory medication, and rub creams onto her neck and onto her low back. Dr Cai's records did not confirm her complaints of a low back injury at that time.
12. The timing of onset of the plaintiff's lower back problems, and the attributability of those problems to the first accident, was a matter of controversy which will be considered in due course when arriving at findings of fact on disputed matters.
13. Regarding the plaintiff's options for pain management, she stated that she was reluctant to continue taking Panadol and Nurofen for her symptoms because of her concern over the long-term effects of those medications. This was an understandable position for her to take in view of her pre-accident episode of a paracetamol overdose, resulting in hospitalisation, and another notation in her medical records to the effect that Nurofen had caused her to experience stomach problems.

Second accident - 9 August 2016 - claimed injuries and aftermath

1. Ms Bao stated that the second accident occurred at about 10pm on 19 August 2016. At that that time she was a seat belt wearing front seat passenger in an Audi Q3 vehicle being driven by her friend, Yanjiexi Wu, in George Street in Sydney.
2. Ms Bao stated that in the lead up to the second accident, after the vehicle in which she was seated had become stationary, the second defendant's vehicle had quickly veered into a collision course on entering the same lane in George Street, from the left. This resulted in a forceful collision between the right or driver's side of that vehicle and the front left or passenger side of the vehicle in which she was seated. As a result of that collision her friend's vehicle was no longer driveable.
3. Ms Bao described the impact between the vehicles as "pretty heavy", causing her body to jerk forward and then backwards. She stated that her neck and head had collided with the seat headrest. She said that in those events, at that time, she instantly felt increased levels of pain in her neck and back. She stated that she also noticed her low back had started to swell, and that it was very painful and uncomfortable. She also said that she was also in shock over those events.
4. In summary, in her statement, Ms Bao stated that the injuries she sustained in the second accident involved her neck, both shoulders, lower back and right leg, as well as experiencing shock.
5. My findings on those matters will be identified after setting out in summary form, a review of the crash analysis report of Mr Griffiths, together with a chronological review of the array of medical and allied evidence in the court book, and a review of the financial documents relied upon by the parties.

Review of the documentary evidence

1. In the paragraphs that now follow, I set out my reviews of first, the crash analysis evidence of Mr Griffiths, secondly, the medical and allied evidence, and thirdly, the financial evidence tendered by the parties.

Review of Mr Griffiths' crash analysis report

1. The first defendant obtained what was described as a "preliminary" expert report dated 13 May 2022 from Mr Michael Griffiths, a biomedical and mechanical engineer. The analytical focus of that report concerned the likely injuries sustained by the plaintiff's husband, Dr Chan, in the collision on 14 December 2014: Exhibit "A", Volume 1, pp 185 - 215.
2. On it's face, that report did not purport to analyse the plaintiff's injuries in the 14 December 2014 accident. For the reasons that follow, I consider that Mr Griffiths' report and the opinions therein therefore have very little if any relevance to determining the issues calling for decision in this case.
3. Although Mr Grifffths' report is dated 13 May 2020, as no letter of instruction was attached or identified, it remains unclear as to when he was briefed.
4. The date on which Mr Griffith was briefed takes on some analytical significance because, by 26 November 2019, or shortly thereafter, the defendants were in possession of a detailed occupational therapy report from Ms Anna Hughan, relating to her assessment of Dr Chan's complaints of injury related disabilities stemming for the first accident. In that report, Ms Hughan reviewed the historical evidence of the investigation and diagnosis of Dr Chan's disabilities.
5. Ms Hughan's assessment was that Dr Chan had suffered a soft tissue injury to his neck and she noted that he had been assessed as having developed a classic frozen shoulder syndrome: Exhibit "A", Volume 2, pp 1498 - 1532; p1501, at paragraph 9.0.
6. Mr Griffiths did not appear to have had the benefit of that occupational therapy assessment when he constructed his crash analysis opinions, so it appears that he had no counterfactual material available for consideration of the effect of Dr Chan's injuries when formulating his views. Perhaps this explains why his report bears the significant qualification that it was of a preliminary nature. There is no evidence that the defendants had sought a finalised opinion from Mr Griffiths.
7. In that preliminary report, Mr Griffiths considered the crash dynamics of the first accident and stated his conclusion that it was improbable that the wheels of Dr Chan's vehicle had been moving in rotation relative to the road surface at the time of the collision. This was the apparent basis for the quantum leap embedded within his opinion that there was "no potential for strain or stretching to cause damage to tissue" to Dr Chan. In giving that opinion, Mr Griffiths' report did not refer to any medical evidence relating to Ms Bao, nor did he purport to comment on her injuries, or on the dynamic cause of her injuries.
8. The source for some of the assumptions relied upon by Mr Griffiths was in part opaque to analysis, and not readily apparent.
9. Mr Griffiths listed 7 categories of documents that the defendants had supplied to him for his consideration, as follows: 1. A personal injury claim form arising out of the 14 December 2014 accident as it related to the plaintiff, including Dr Cai's supporting medical certificate relating to the plaintiff. Mr Griffiths' report did not address the plaintiff's injuries which were listed in that medical. certificate; 2. A police report relating to the first accident; 3. Smash repairer's records for the repairs to Dr Chan's Maserati; 4. Dr Chan's witness statement dated 18 October 2017; 5. Dr Cai's clinical records, apparently relating to Dr Chan; 6. Clinical records from Medi Central, apparently relating to Dr Chan; 7. Clinical notes of an orthopaedic nature from Associate Professor Mark Haber, relating to Dr Chan.
10. It appears that items (6) and (7) above have not been copied into Exhibit "A". Item (1) comprised the plaintiffs personal injury claim form, which included a medical certificate from Dr Cai which diagnosed the plaintiff as having incurred a ligamentous injury to her neck as well as a trapezius muscle injury: Exhibit "A', Volume 1, p 153A. The evidence does not establish that Mr Griffiths was appropriately qualified to reliably contradict Dr Cai's medical diagnosis. He made no criticism which impugned that diagnosis.
11. The police report that was provided to Mr Griffiths was of limited utility in analysing the crash dynamics of the first accident.: Exhibit "A', Volume 1, pp154-159. The report to the police was late and was presumably made to comply with the statutory requirements for making a claim: s 70(1) of the MAC Act.
12. The police report stated that it was received on 25 January 2015, some 42 days after the accident. It identified the occurrence involving a rear end collision with Dr Chan's Maserati vehicle. It referred to the plaintiff as having been injured and having consulted a physiotherapist for her injuries. There was no description of the speed of, or the damage to, either vehicle involved in the collision. However, it noted that that the vehicle's airbag had not been deployed in the collision.
13. A copy of the smash repairer's file relating to the repair of Dr Chan's vehicle was included in the court book: Exhibit "A', Volume 1, pp 1595-1614.
14. The repairer's file indicated that the repairs involved six hours of labour to repair the rear of the vehicle, and 4.25 hours for repair of the paint work. It was also noted that the job required a rear bumper repair. The total cost was identified at $2,838.70.
15. It is doubtful that an insurance loss assessor would have approved that amount of work if there was little or no impact damage to the vehicle. The black and white photocopies of the photographs included in the smash repairer's file were of no assistance to the task of discerning the nature of the damage to the vehicle, or the nature of the injuries to the plaintiff. It was not clear as to whether those photographs had been taken either before or after the repairs were carried out.
16. Mr Griffiths reasoned that the damage to Dr Chan's vehicle was of "a relatively minor nature" (Exhibit "A', Volume 1, p197), and he considered the contact between the vehicles amounted to "a scruff" or an "abrasion, on the bumper bar" (Exhibit "A', Volume 1, p199), and that the energy of the collision (which was not identified in the police report or elsewhere in the evidence) was "not sufficient to result in heavy lateral motion of the vehicle" (Exhibit "A', Volume 1, p199), those conclusions indicating to him that there was "no potential for strain or stretching to cause damage to tissue" :Exhibit "A', Volume 1, p 214. In the context of a rear end collision, Mr Griffiths' reference to lateral motion remains obscure.
17. Those ipse dixit statements are of no assistance to the analysis required in this case: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87].
18. It is important to observe that the opinion of Mr Griffiths only related to Dr Chan's injuries, and not to the plaintiff's injuries.
19. In coming to his views on the crash dynamics of the first accident, Mr Griffiths seems to have overlooked the significance of Dr Chan's unchallenged description in his evidentiary statement to the effect that his body was "jerked heavily backwards and then forwards", with his head then hitting the headrest with some force in the subject accident: (Exhibit "A', Volume 1, p 201. In that regard, it is also noteworthy that there was no evidence from the first defendant driver as to the speed or motion of his vehicle immediately before the collision, or as to a description of the force of the collision.
20. In my view, the factual basis for the opinions expressed by Mr Griffiths as to the crash dynamics involved in the accident on 14 December 2014 were not sufficiently like the uncontradicted and not otherwise improbable factual evidence given in these proceedings: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
21. Therefore, and for the above reasons, having assessed the contents of Mr Griffiths' report, I consider that report to be of little or no probative value to the task of determining the nature and the extent of the injuries sustained by Ms Bao in the accident on 14 December 2014.
22. Whilst the plaintiff's version of the events of the first accident as recorded by Dr Cai, namely a collision involving the speed of the offending vehicle being of the order of 20-30kph may be discounted, in my view, Dr Chan's unchallenged version bespeaks a significant if not heavy impact sufficient to cause the plaintiff's claimed soft tissue injuries.

Chronological review of medical and allied evidence

1. In view of the defendants' wide-ranging attack on the plaintiff's credit, and in view of emergent disputes over the nature, extent, and the effect of the plaintiff's injuries, before identifying and making any findings on those matters it is necessary to review and analyse for reliability, the content of the array of medical and allied reports tendered by the parties.
2. As already observed, the medical evidence in the court book was repetitively duplicated in parts and was assembled in an inconvenient and non-chronological order.
3. A consideration of the factual issues that emerge from the medical and allied evidence requires a sequential detailed chronological exposition in the paragraphs below. This now follows, in the chronological order in which that evidence came into existence, as distinct from the order in which it was assembled in the court book.
4. The initial analysis of the state of the documentary evidence at the close of evidence revealed that the first objective clinical record made by a medical practitioner concerning the plaintiff's injuries resulting from the accident on 14 December 2014 was on 2 February 2015, when the plaintiff saw Dr Cai, when he made notes of that consultation.
5. Following oral submissions on 29 August 2023, when counsel were asked to clarify whether there was any evidence from Mr Brad Hughes, a massage therapist who had treated the plaintiff, Exhibit "C" was added to the body of the evidence: T123.30. This provided an objective and relatively contemporaneous evidence of the plaintiff's injuries which flowed from the accident on 14 December 2014.
6. Whilst Exhibit "C" was dated 16 September 2015, it set out in chronological order, an historical summary of the dates on which Mr Hughes, who practised under the business name Medi-Rub Australia, had provided massage therapy to the plaintiff's neck.
7. The effect of that record was to provide some objective corroborative evidence of the plaintiff's account of the problems she had experienced after her first accident, where she had first consulted Mr Hughes 6 days after that accident. The material provided by Mr Hughes therefore comprises the first objective and relatively contemporaneous record of those matters.

Mr Brad Hughes - Massage Therapist - 20 December 2014

1. On 20 December 2014, the plaintiff consulted Mr Brad Hughes. He provided her with a 45-minute massage directed at her complaint of neck pain which he considered was due to a mild whiplash injury: Exhibit "C", p 1.
2. Between 20 December 2014 and 22 August 2015, Mr Hughes saw the plaintiff for massage therapy on a total of 15 occasions.

Mr Brad Hughes - Massage Therapist - 31 January 2015

1. On 31 January 2015, the plaintiff saw Mr Hughes for a second time. On this occasion he provided her with a 1.25-hour massage therapy treatment to her neck: Exhibit "C", p1. This record was consistent with the plaintiff's evidence that she had this treatment (T29.40-T30.6; Exhibit "A", Volume 1, pp 121-122, paragraphs 36-37), before she went on to seek a consultation with Dr Cai because she felt her pain was increasing and not resolving: Exhibit "A", Volume 1, p 122, paragraphs 38-40),
2. The plaintiff subsequently saw Mr Hughes on a further 13 occasions in 2015, namely, on 7, 9 and 14 March, 3 and 18 April, 9 and 23 May, 6 and 20 June, 11 and 18 July, and 22 August 2015: Exhibit "C", pp 1-2.
3. At one of those consultations, on 7 March 2015, some 12 weeks after the accident on 14 December 2015, Mr Hughes noted that he treated the plaintiff for a complaint of lower back pain: Exhibit "C", p 1.
4. That was the first occasion the objective records are noted to the effect that there was mention of the plaintiff having made a complaint of lower back pain, some 12 weeks after the first accident. Mr Hughes later made further but differently worded notations of his treatment of the plaintiff for back pain. This was on 3 April 2015 ("general back pain"), 6 June 2015 ("upper back pain"), and 22 August 2015 ("general back pain").
5. The variations in the described locations of the plaintiff's back pain as described above cannot be resolved based only on the content of Exhibit "C". Those records will the subject of further consideration leading to findings on the question of the nature and extent of the plaintiff's injuries which resulted from the first accident.

Dr Danny Cai - General Practitioner - 2 February 2015

1. On 2 February 2015, some 50 days after the first accident, the plaintiff's general practitioner, Dr Danny Cai, wrote a consultation note in which he recorded the mechanism of the collision on 14 December 2014 as involving a 20-30kph collision from behind resulting in a whipping like action of the head/neck resulting in neck/shoulder soreness with a slow recovery: Exhibit "A', Volume 1, p 544.
2. It is plain from that note that the plaintiff had perceived the collision to have been forceful. It appears that Mr Griffiths had not considered that account, and its importance to a crash analysis.
3. In contrast to the plaintiff's first evidentiary statement, Dr Cai's recorded account of the described speed of the 14 December 2014 had collision was not contradicted by reliable eyewitness evidence or direct evidence from the first defendant, or by any other witness accounts from those who might have been present at the time and who might have been in a reliable position to authoritatively speak about those facts.
4. At that first consultation Dr Cai did not record any reference to the plaintiff having presented with or complaining of a lower back problem, either recently emergent or contemporaneous to the accident on 14 December 2014.
5. The plaintiff explained that she had delayed seeking out earlier medical treatment for the injuries she sustained in the first accident in the unfulfilled expectation that her injuries would resolve with the massage therapy she had sought from Mr Hughes shortly following the first accident.

Dr Danny Cai - General Practitioner - 16 February 2015

1. On 16 February 2015, Dr Cai provided a medical certificate which was incorporated as part of the plaintiff's motor accident personal injury claim form. By hand, he certified that the accident on 14 December 2014 resulted in the plaintiff incurring ligamentous neck and shoulder injuries, including involvement of the trapezius muscles, with the left being more affected than the right side. His consultation note recorded the plaintiff's complaints of left shoulder and neck stiffness with tightness of the left trapezius muscle. At that time, Dr Cai's certificate made no mention of the plaintiff having sustained any form of injury to her lower back: Exhibit "A", Volume 1, p153A; p 545.
2. The content of this record is of interest because the plaintiff consulted Mr Hughes 4 days later, for treatment of back pain. It appears she did not have back pain when she saw Dr Cai on 16 February 2015. If she had back pain at the time she saw Dr Cai it is more likely than not she would have mentioned this to him and if so, he would have made a clinical note to that effect.

Dr Mathew Giblin - Orthopaedic Surgeon - 25 November 2015

1. On 25 November 2015, Dr Mathew Giblin, a consultant orthopaedic surgeon, examined the plaintiff at the request of her former solicitors and he provided a report on the same date: Exhibit "A", Volume 1, pp 62 - 64.
2. Dr Giblin's examination was limited to a consideration of the plaintiff's claim of having injured her neck in the accident on 14 December 2014.
3. Dr Giblin expressed the unchallenged medical opinion that the plaintiff's neck injuries, which he described as being of a soft tissue nature, were consistent with the accident she had described, the mechanism being a rear end collision. At that time, he expressed the opinion that she would remain unfit for work involving excessive, repetitive, forward flexion of the cervical spine. There was no mention of the plaintiff having reported an injury to her lumbar spine at the time she was examined by Dr Giblin.

Dr Peter Conrad - Surgeon - 14 December 2015

1. On 14 December 2015, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon, at the request of her former solicitors and provided a report on the same date: Exhibit "A", Volume 1, pp 65 - 68.
2. Dr Conrad's examination was restricted to the plaintiff's neck and left shoulder and related left arm radiculopathy complaints and her related complaint of restricted left shoulder movements following the accident a year earlier, on 14 December 2015. He described the causative mechanism of the plaintiff's complaints as being a whiplash injury. At the time of that examination, Dr Conrad did not record any history of the plaintiff having complained of injuring her lower back in that first accident.
3. Dr Conrad expressed the opinion that at that time, the plaintiff was unfit for work involving overhead work, and would need to be employed in situations where she could sit or stand at will, not lift weights of more than 5kgs, and she would need to commensurately curtail her computer work because of her symptoms. He also expressed the opinion that her work as a beautician at that time, for 10 - 20 hours per week, was within those curtailed parameters.
4. Dr Conrad also noted that the plaintiff's complaints were causing her to struggle with housework and home maintenance, which led to his suggestion that she might need some hours per week of home care assistance.

Dr Samuel Gerber - Radiologist - 22 March 2016

1. On 22 March 2016, some 15 months after the first accident, at the request of the plaintiff's husband, Dr Samuel Gerber, a radiologist, reported upon a CT scan of the plaintiff's lumbosacral spine. This the first clinical record of the plaintiff having complained of a lumbar spine problem.
2. He reported that there was a small broad based central posterior disc protrusion at the level L4/L5 without neural canal encroachment. He also reported the presence of a slightly larger central posterior disc protrusion at the L5/S1 level also without neural canal encroachment. The clinical history was noted to have been :"Back pain": Exhibit "A", Volume 1, pp 104 - 105; pp 551-552.
3. These findings are of interest in view of the reported results of some subsequent scans of the plaintiff's lumbar spine which attracted the critical attention of Dr Chen, an occupational physician retained by the defendants to examine the plaintiff.

Dr Samuel Gerber - Radiologist - 27 April 2016

1. On 27 April 2016, Dr Samuel Gerber reported directly to the plaintiff on his interpretation of a CT scan of her cervical spine and left shoulder. This appears to have been a self-referral. He reported that there were no abnormalities seen in the imaging of her cervical spine or in respect of her left shoulder. The clinical context was stated to be "MVA": Exhibit "A", Volume 1, pp 106 - 107; pp 554-555.

Dr Peter Conrad - Surgeon - 16 May 2016

1. On 16 May 2016, Dr Conrad provided a supplementary letter to the plaintiff's former solicitors comprising a commentary incorporating his views on Dr Gerber's' radiological reports of 27 April 2016 concerning the imaging of the plaintiff's cervical spine and the left shoulder. Dr Conrad stated that the imaging did not change his earlier expressed views, which he had provided on clinical grounds rather than on radiological grounds: Exhibit "A", Volume 1, pp 108 - 109. Reading between the lines of Dr Conrad's report, it appears he was possibly suggesting that clinical complaints and radiological signs do not always align.

Dr Joan Chen - Occupational Physician - 28 June 2016

1. On 28 June 2016, at the request of the CTP insurer, the plaintiff was examined by Dr Joan Chen, an occupational physician. This examination took place some 18 months after the first accident and 2 months before the second accident. Dr Chen issued her very detailed 14 page closely typed report on the same day: Exhibit "A', Volume 1, pp 216 - 223J; Exhibit "B".
2. Dr Chen took a history that following the first accident, and at a point about 2 months before the second accident, the plaintiff was experiencing episodic neck pain, left sided upper shoulder girdle pain, and headaches. The plaintiff reported that pain as being often disabling to the point she could not get out of bed. Dr Chen noted that the plaintiff had no neck pain on the day of this assessment.
3. Dr Chen recorded a history of the plaintiff being able to continue her usual work duties and work hours as they were not onerous. This too was an interesting item of history to be considered when assessing her claim for economic damages.
4. Dr Chen also noted the plaintiff's history of having developed low back pain in about late 2015. The context was that the plaintiff had queried whether this was related to that accident. Dr Chen did not accept that there was a relevant causal connection. She stated that this was "not causally related to the subject accident as there is a significant temporal gap between the accident and the first record of back pain." That account, at first glance, raises a causation question to be determined following a review of the entire medical evidence.
5. Dr Chen's above-cited negative opinion on causation did not identify the potential elements of analysis both for and against her above-cited conclusion. Neither did her report did indicate how she had resolved any competing arguments to reach that conclusion. That said, Dr Chen was not required for cross-examination on that opinion.
6. Dr Chen's report went on to state that the plaintiff's presentation was consistent with her claim of injury and disability due to a soft tissue strain (to her neck and left shoulder) which had settled to a level where further significant remission was unlikely. Dr Chen assessed the plaintiff as being able to continue with her pre-first accident employment.
7. On the final page of her report, Dr Chen noted the limited background materials she had been given for review. These comprised a police report, a personal injury claim form, a statutory declaration, various medical certificates and notes from Dr Cai, and a report from Mr Hughes, the massage therapist who treated the plaintiff. That report only came into the evidence in this case by leave during submissions.
8. It appears that at the time Dr Chen issued her report dated 28 June 2016, she did not have Dr Gerber's report of 22 March 2016 which commented on the presence disc protrusions in the plaintiff's lumbar CT scans taken on that date.

Dr Joan Chen - Occupational Physician - 28 June 2016

1. On 28 June 2016, Dr Chen issued a short supplementary report indicating her assessment that the plaintiff had zero percentage whole person impairment according to the statutory assessment protocols, which she emphasised did not mean the plaintiff had not been injured in the first accident: Exhibit "B".

Dr Denise Huang - General Practitioner - 22 August 2016

1. On 22 August 2016 Dr Denise Huang's progress notes record a history of the plaintiff having been involved in a second motor vehicle accident 3 days earlier on 19 August 2016. In that progress note Dr Huang recorded that the plaintiff had sustained injuries to the cervical spine, the head, and to the right knee, with the latter injury causing a large purple bruise and tenderness. She noted the plaintiff had difficulty with standing. She also noted tenderness, and what I interpret to be restriction of movement and difficulty bending and forward flexion of the cervical spine: Exhibit "A", Volume 1, p 612.
2. Surprisingly, considering the plaintiff's narrative of having lumbar spine problems, that note made no mention of the plaintiff having sustained a low back injury in that second accident.
3. That omission should be read in conjunction with a subsequent entry in the plaintiff's medical records made by Dr Yu Feng Huang which refers to this consultation with Dr Denise Huang 3 days after 19 August 2016 accident. In that note Dr Yu Feng Huang recorded that the plaintiff experienced "low back pain straight away" following the second accident. That note refers to the fact that it was the plaintiff's perception that the consultation with Dr Denise Huang did not go well. The plaintiff's perception of that earlier consultation was that only analgesia was suggested at that time, and no lumbar CT scan was arranged until this was requested by her in September: Exhibit "A", Volume 1, p 558.

Dr Denise Huang - General Practitioner - 19 September 2016

1. On 19 September 2015, the plaintiff consulted Dr Huang who noted the history of having pain in her lower back. Dr Huang's handwritten notes of this consultation are difficult to interpret: Exhibit A, Volume 1, p 659. As best I can discern, she recorded a history of the plaintiff experiencing pain in her lower back for the previous month following the recent, that is, the second motor vehicle accident, with pain radiating to the right leg, with a related inability to sit, bend, and a related complaint of restricted movements of the lumbar spine in all directions. She recorded that the plaintiff had been receiving massage treatment for those problems, the cost of which was being met by the CTP insurer. Based on that history and those findings, Dr Huang ordered a lumbar CT scan.

Dr K Plehwe - Radiologist - 21 September 2016

1. On 21 September 2016, against a background history of right-sided sciatica, the plaintiff underwent a CT scan of her lumbar spine which was reported upon by Dr K Plehwe. He also reported that the scan showed a large central L5/S1 disc protrusion which descended to the upper part of the S1 vertebral body and which impinged upon some nerve roots of the neural structure known as the cauda equina: Exhibit "A', Volume 1, p 110.
2. Dr Plehwe's report involved a change of description compared to Dr Gerber's report on the lumbar CT scans taken on 22 March 2016.

Dr Denise Huang - General Practitioner - 22 September 2016

1. On 22 September 2016, Dr Huang's progress notes record Dr Plehwe's CT findings and the plaintiff's complaints of tenderness in the lumbar region, right buttock, right knee, as well as cervical spine problems following the plaintiff's previous neck injury in the accident which occurred in December 2014: Exhibit "A', Volume 1, p 613.

Dr Denise Huang - General Practitioner - 10 October 2016

1. On 10 October 2016, Dr Denise Huang, noted that the recent CT scan of the plaintiff's lumbar spine revealed that an L5/S1 disc prolapse/protrusion was present, and this was causing the plaintiff right sided sciatic nerve pain with weakness and numbness in the right leg: Exhibit "A", Volume 1, p 576 - 577.
2. Dr Huang's clinical note of this consultation recorded that a CT scan taken in early September 2016 demonstrated an L5/S1 disc prolapse as a "new" feature where the previous feature was an L4/L5 disc protrusion. She noted the plaintiff's presenting symptoms were causing her to experience difficulties with sleep: Exhibit "A", Volume 1, p 557; p 619; p 635.
3. The reference to the L5/S1 disc protrusion being a new feature was odd because it was referred to by Dr Gerber in his report dated 22 March 2016. Perhaps Dr Huang did not have Dr Gerber's report because it was obtained at the referral of the plaintiff's husband, Dr Chan.

Dr Denise Huang - General Practitioner - 24 October 2016

1. On 24 October 2016, Dr Huang signed a medical certificate as part of the plaintiff's motor accident personal injury claim form. In it he included the plaintiff's diagnosis of lumbar pain associated with CT evidence of an L5/S1 disc prolapse and nerve compression, and right knee bruising and swelling. The CT evidence to which she referred appears to be a reference to Dr Plehwe's report of 21 September 2016, which appears to have been arranged at the plaintiff's insistence. At that time, Dr Huang identified the need for modified sitting and standing activities, and the plaintiff's need for lifting restrictions: Exhibit "A", Volume 1, p 563.

Dr Julian Yu - Orthopaedic Surgeon - 25 October 2016

1. On 25 October 2016, at the request of Dr Huang, Dr Julian Yu, a consultant orthopaedic surgeon, examined the plaintiff's lumbar spine and the related investigatory reports of imaging scans. He expressed his diagnostic impression that the right sided sciatica symptoms corresponded to the motor vehicle accident, which from the context I interpret to be a reference to the second accident. He identified the need for a lumbar MRI scan. He stated that he would refer the plaintiff to Dr Randolf Gray, a specialist spinal surgeon, for further opinion: Exhibit "A', Volume 1, p111; pp 654 - 655. It was left unclear as to whether the plaintiff ever saw Dr Gray, or whether she saw Dr Mobbs instead.

Dr Denise Huang - General Practitioner - 24 November 2016

1. On 24 November 2016 the plaintiff's new general practitioner, Dr Yu Fung Huang consulted Dr Denise Huang's notes and wrote to the CTP insurer to confirm that his predecessor had seen the plaintiff in relation to the plaintiff's second accident of 19 August 2016. The consultation dates were identified as being 10 and 24 October 2016.
2. In that letter to the CTP insurer, Dr Huang set out the plaintiff's account of that accident as follows.: "On 19 August 2016, 10pm Friday night, patient was a passenger in the car - in right lane of road. Car on left crashed into left lane suddenly merged lane to right hitting the passenger side where she was sitting. Patient had her seat belt on, no airbag implosion but patient thrusted forward and then back to seat. She had lower back pain straight away." Hr Huang: Exhibit "A", Volume 1, pp 574 - 575. The impression from that note is that the collision of the second accident was significantly forceful.

Dr Ralph Mobbs - Neurosurgeon - "late 2016" - 24 November 2016

1. On 24 November 2016, at the referral of Dr Huang, the plaintiff consulted Dr Ralph Mobbs, a consultant neurosurgeon, for "discogenic low back pain emanating from L5/S1": Exhibit "A", Volume 1, p 113: pp 650 - 651.
2. Dr Mobbs' note of that consultation recorded that the plaintiff was seen to walk with an antalgic gait favouring the left leg and preferred to sit rather than stand. He also noted the plaintiff's straight leg raising on the right was reduced to about 70 degrees.
3. Dr Mobbs diagnosed the plaintiff as having L5/S1 discogenic low back pain with some chemical radiculitis affecting the right S1 nerve. At that stage he did not recommend surgery. He prescribed Lyrica, anti-inflammatories, physiotherapy and an L5/S1 injection, although he did not think she was a great candidate for that injection, He also recommended a reassessment in the new year.
4. The evidence did not indicate whether Dr Mobbs' identified mechanism of chemical radiculitis was in fact because of chemical irritation from disc exudate following a disc prolapse, or from a protrusion physically affecting adjacent nerve tissue, as identified in the scan reported on by Dr Plehwe on 21 September 2016.

Dr Paul Lowenstein - Radiologist -16 December 2016

1. On 16 December 2016, At the referral of Dr Mobbs, the plaintiff underwent a CT guided injection into the right L5 peri-radicular region without complication: Exhibit "A", Volume 1, p731.

Dr Peter Conrad - Surgeon - 15 February 2017

1. On 15 February 2017, at the request of her former solicitors, the plaintiff was re-examined by Dr Conrad, who provided a report on the same date: Exhibit "A", Volume 1, pp 69 - 72. At the second examination of the plaintiff by Dr Conrad he took a history of the second accident having occurred on 19 August 2016.
2. Dr Conrad reviewed his earlier opinion and noted that the plaintiff's neck pain continued, associated with headaches, with worsening when standing, the left shoulder and left arm symptoms were no longer current. He noted that the plaintiff had been working for about 10 hours per week as a beautician. This history of the plaintiff's work some 6 months after the second accident is of interest to the task of assessing her evidence regarding her economic loss claim, and the extent to which her earning capacity has been impaired by the effect of her injuries.
3. Dr Conrad recorded his findings which followed his examination of the plaintiff's lumbar spine complaints. He examined Dr Gerber's report dated 22 March 2016 and Dr Plehwe's report dated 21 September 2016 concerning the plaintiff's lumbar CT scans which identified a small broad-based central posterior disc protrusion at L4/5 and a larger central posterior at L5/S1, which extended to the upper part of the S1 vertebral body impinging on the nerve roots of the neural structures comprising the cauda equina.
4. With respect to the plaintiff's first accident, Dr Conrad expressed the opinion that the chronicity of the plaintiff's ongoing neck symptoms merited an investigatory MRI scan of the neck to rule out any discal injuries. It appears that recommendation was not acted upon as there was no evidence of the plaintiff having ever undergone a cervical MRI scan. Although this suggestion was not explored in the evidence, it appears from Dr Yu's examination on 25 October 2016, that the reason the plaintiff did not have a MRI scan when it was recommended to her earlier is that she suffered from claustrophobia: Exhibit "A", Volume 1, p 559.
5. With respect to the plaintiff's second accident, Dr Conrad expressed the opinion that the two lumbar disc prolapses from that accident required conservative treatment at that time. He reiterated his earlier expressed recommendations for postural, lifting, work, and domestic restrictions. His view that both disc prolapses occurred in the second accident appears to involve an either error of assumption or interpretation when considered alongside Dr Gerber's 22 March 2016 CT scan report.

Dr Ralph Mobbs - Neurosurgeon - 24 March 2017

1. On 24 March 2017, at the request of her husband, the plaintiff was examined by Dr Ralph Mobbs, a consultant neurosurgeon concerning her right-sided discogenic low back pain emanating from L5/S1: Exhibit "A", Volume 1, pp 113; p 733.
2. Dr Mobbs referred to a report of a recent MRI scan which revealed a posterior annular tear with a broad-based annular bulge at the level of L5/S1, which he identified as being the likely source of the plaintiff's back pain. His recommendation at that time was for referral of the plaintiff to a pain management clinic to discuss pain management interventions such as cortisone and other injections., including epidural and inter-foraminal nerve blocks. At that time, he considered the plaintiff's management should be conservative and non-surgical in nature.

Prince of Wales Private Hospital - Operation report - 12 May 2017

1. On 12 May 2017 the plaintiff underwent bilateral L5/S1 facet joint injections and a trans-foraminal block performed by Dr James Yu for her low back and right leg pain: Exhibit "A", Volume 1, p 792; p 813.

Dr Mathew Giblin - Orthopaedic Surgeon - 24 May 2017

1. On 24 May 2017, at the request of his former solicitors, the plaintiff was re-examined by Dr Giblin, who provided a report on the same date: Exhibit "A", Volume 1, pp 73 - 76.
2. In his second examination of the plaintiff, Dr Giblin noted that, contemporaneously, following the second accident, the plaintiff complained of low back pain with intermittent radiation of pain down the right leg. In that regard, the plaintiff reported that she had some related lifting and walking restrictions.
3. Following Dr Giblin's second examination of the plaintiff, he expressed the opinion that the described accident, which from the context, referred to the second accident, resulted in the plaintiff sustaining a soft tissue injury to the lumbar spine most likely relating to the L5/S1 disc. He expressed the view that as a result, the plaintiff remained unfit for work that involved repetitive bending or heavy lifting. He also noted that Dr Mobbs was giving the plaintiff advice about possible surgical treatment.

Dr Mobbs - Neurosurgeon - 22 November 2017

1. On 22 November 2017, at the request of her husband Dr Chan, the plaintiff was re-examined by Dr Mobbs after an interval of almost a year since his earlier consultation: Exhibit "A", Volume 1, p 114.
2. Dr Mobbs identified the plaintiff's post-accident problem as being L5/S1 discogenic and facetogenic pain. He noted she had been receiving treatment targeting L5/S1 with an excellent result. He suggested a repeat MRI scan and a further follow-up consultation after that to discuss longer term options: Exhibit "A", Volume 1, p 740.

Prince of Wales Private Hospital - L5/S1 injection -24 November 2017

1. On 24 November 2017, the plaintiff was admitted to the Prince of Wales Private Hospital under Dr Mobbs for bilateral L5/S1 facet joint injections: Exhibit "A", Volume 1, pp 566 - 570; p 647; p 677; p 744; p 827.

Dr Laughlin Dawes - Radiologist - 31 January 2018

1. On 31 January 2018, at the referral of Dr Mobbs, the plaintiff underwent a repeat MRI scan of the lumbar spine which was reported by Dr Laughlin Dawes as showing minimal facet joint arthropathy at the L5/S1 level, with some desiccation and loss of disc height. The diagnosis was focal disc herniation at L5/S1 without evidence of nerve root compression: Exhibit "A", Volume 1, p 746.

Dr Joan Chen - Occupational Physician - 12 February 2018

1. On 12 February 2018, at the request of the CTP insurer, the plaintiff was reassessed by Dr Chen. She issued her very detailed 17-page second report on the same day: Exhibit "A', Volume 1, pp 224 - 240.
2. This report from Dr Chen considered the occurrence and effect of the plaintiff's second accident in which she reportedly suffered a bruised right knee and an injury to the lumbar spine. Dr Chen recorded a history from the plaintiff that her right knee injury had resolved after about a week after the second accident. She also recorded a history that the plaintiff's lumbar problems had improved by the time of this assessment, but only temporarily, because of intervention by injections. Otherwise, the recorded history was that the plaintiff felt her condition was not stable and was gradually worsening.
3. Dr Chen reviewed the imaging reports by Dr Gerber and Dr Plehwe. She commented that "It would be appropriate for a radiologist who specialises in CT and MRI scan imaging to view and compare it to the CT scan of 22.3.2016 and the MRI scan of March 2017 for an opinion as to whether there is any noticeable difference in findings at the L5/S1 disc before and after the accident".
4. That comment by Dr Chen is curious because there is no suggestion that either Dr Gerber or Dr Plehwe were not appropriately qualified to interpret those scans either on an individual basis, or comparatively.
5. It appears that Dr Chen made her above-cited comment because she was uncertain as to whether there had been a significant change in the imaging sequences. It appears from her report that she was unaware of the repeat lumbar MRI scan carried out on 31 January 2018 which was reported upon by Dr Dawes as showing loss of disc height, desiccation, and herniation, at L5/S1.
6. Despite raising that question concerning the interpretation of the lumbar CT scans, Dr Chen accepted that an aggravation of a pre-existing protrusion could have occurred. She went on to downplay a conclusion as to a permanent injury because she "… would regard the impact as being minor". The source for that impression of an assumed minor impact was of doubtful reliability as the plaintiff's evidence as to the force of the impact was not challenged or contradicted by cogent evidence based on contemporaneous observations.
7. Dr Chen stated that she was prepared to accept the possibility (although in her view not confirmed), that the plaintiff had suffered symptomatic exacerbation of a pre-existing L5/S1 disc protrusion. She felt that the plaintiff's somatic referred pain in the right leg was not in conformity with a dermatomal distribution. She did not develop a discussion on the diagnostic significance, if any, on that observation. That said, she had stated there was no evidence of exaggeration in the plaintiff's presentation.
8. Dr Chen was left in a state of diagnostic uncertainty as to whether the (second) accident had caused any significant change in the L5/S1 disc. Her comment in that regard is difficult to understand in light of the plaintiff's reported symptom of radiation of pain into her right leg when examined by Dr Giblin, although it is possible that the facet joint injections the plaintiff received on 24 January 3017 were still having a masking effect at this time.
9. That said, Dr Chen acknowledged that the plaintiff's lumbar spine condition at that time had not stabilised to the point where it could be considered to have been "sufficiently recovered".
10. Ultimately, Dr Chen concluded with the opinion that as at 12 February 2018, the plaintiff was able to continue with her pre-accident employment in respect of her administrative tasks, including beauty tattooing: Exhibit "A', Volume 1, p 238, paragraph 16. In her oral evidence, the plaintiff adamantly disagreed with the aptness of those opinions by Dr Chen: T85.2.
11. Significantly, Dr Chen deferred expressing an opinion on the plaintiff's unfitness for work pending receipt off a report and opinion form an independent specialist radiologist as to whether there had been a substantial alteration to the L5/S1 disc from the subject accident, namely, the second accident.
12. Consequently, it appears that her diagnostic impressions and conclusions necessarily remained incomplete as they were expressed to be dependent on the further radiological opinion that she suggested being obtained: Exhibit "A', Volume 1, p 238; p 239, paragraphs 14-19.
13. It is not known as to whether the defendants took up Dr Chen's recommendation to obtain that further radiological opinion, given that the evidentiary material was readily available for appropriate consideration. In final submissions Senior Counsel stated that there was no further report from Dr Chen: T130.42.
14. Dr Chen identified the materials that had been provided to her. In addition to her own previous report dated 28 February 2016, she referred to some unidentified certificates and "various medicals" dated 24 May 2017, and some reports from Dr Conrad, Dr Giblin, Dr Yu, and Dr Mobbs.

Dr Joan Chen - Occupational Physician - 12 February 2018

1. On 28 June 2018, Dr Chen issued her opinion that the plaintiff had a 5 per cent whole person impairment in respect of her lumbar spine injury from the second accident: Exhibit "A', Volume 1, pp 241 - 242.

Dr Mobbs - Neurosurgeon - 21 February 2018

1. On 21 February 2018, at the request of her husband Dr Chan, the plaintiff was re-examined by Dr Mobbs. In that updated consultation Dr Mobbs recorded a history of non-improvement of symptoms where previous injections had only provided short term temporary relief: Exhibit "A", Volume 1, p 115 - 118; p 747.
2. Dr Mobbs stated that: "The MRI tells the story here". In developing that comment, he observed that the repeat MRI scan showed an enlarging posterior disc sequestration at the level L5/S1, which he described as "bad news" for the plaintiff, noting that she was "struggling to come to terms with her chronic, ongoing discogenic low back pain and trying to juggle this against the decision to have more children". He stated this all stemmed from the motor vehicle accident in 2016.
3. Dr Mobbs' opinion seems to be along the lines of what Dr Chen Had been suggesting on 12 February 2018. His opinion was not contradicted by appropriately qualified evidence to the contrary.
4. Dr Mobbs identified the plaintiff's options at that time as varying from activity modification, medication as needed, physical therapy, multidisciplinary pain management clinic treatment, microdiscectomy for the neural symptoms, but noting that this would not address the discogenic low back pain, or an anterior surgical approach such as "TDR or ALIF".
5. From the context, I interpret those abbreviations to respectively refer to the alternative procedures of total disc replacement and anterior lumbar interbody fusion.
6. It sems that from this point, the plaintiff was on a pathway waiting for surgery.

Dr Mathew Giblin - Orthopaedic Surgeon - 21 March 2018

1. On 21 March 2018, at the request of his former solicitors, the plaintiff was re-examined by Dr Giblin, who provided a report on the same date: Exhibit "A", Volume 1, pp 77 - 80.
2. Dr Giblin noted that the plaintiff had elected to have a microdiscectomy as outlined by Dr Mobbs and was waiting for the CTP insurer to approve payment for that procedure. Meantime, her symptoms had deteriorated, with low back pain radiating down her right leg requiring treatment with Lyrica, Nurofen, and physiotherapy.
3. Dr Giblin noted that the plaintiff had restrictions in her ability to lift weights, walk for more than a kilometre, and to sit or stand for more than half an hour, and that she needed assistance with housework. He expressed the opinion that the plaintiff remained unfit for work that involved repetitive bending or heavy lifting. He suggested that if the microdiscectomy did not relieve all her pain, she may require a lumbar fusion.

Dr Yu-Fung Huang - General Practitioner - 13 April 2018

1. On 13 April 2018, Dr Yu-Fung Huang, from the practice of Dr Denise Huang (who was at that time on maternity leave), provided a report to the plaintiff's former solicitors, regarding the plaintiff's contact with that practice between 10 October 2016 and 8 March 2018 concerning the effects of the second accident: Exhibit "A", Volume 1, pp 571 - 573.
2. This report by Dr Huang recorded a history of the mechanics of the second accident and the plaintiff's history of having experienced low back pain immediately after the impact. The report recounted the plaintiff's ongoing history of ongoing and worsening back pain and radiculopathy due to S1 nerve compression with references to the results of imaging investigations and a series of three subsequent epidural injections. The record of that examination noted weakness in the strength of the right leg.
3. This report of Dr Huang's report also noted a history of an inability of the plaintiff to work since the second accident. She reported her clinical impression of the plaintiff's large lumbar disc herniation causing ongoing neuropathy, right sided weakness, and radiculopathy, which had resulted in her referral for surgical assessment and advice.
4. Dr Yu Feng Huang's reasons for stating that the plaintiff was unable to work was that she could no longer sit for a prolonged period or lean over patients to give them injections, or work as a beauty therapist: Exhibit "A", Volume 1, p 572.

Dr Peter Conrad - Surgeon - 23 April 2018

1. On 23 April 2018, at the request of his former solicitors, the plaintiff was re-examined by Dr Conrad, who provided a report on the same date: Exhibit "A", Volume 1, pp 81 - 84.
2. Dr Conrad noted that since his last examination of the plaintiff in February 2017, her complaints of neck pain had continued, and her back and radiated right leg symptoms had deteriorated. He again recommended the plaintiff have a cervical spine MRI scan to rule out a discal injury. It appears the suggested cervical MRI scan was not undertaken, perhaps because of the plaintiff's claustrophobia, as earlier identified.
3. Dr Conrad noted that the plaintiff had restrictions with physical activity and with work, and he suggested the need for a structured rehabilitation programme after the proposed surgery. He identified the plaintiff's prognosis as being guarded.

Dr Jason Wenderoth - Radiologist - 17 May 2018

1. On 17 May 2018, Dr Jason Wenderoth, a radiologist, reported on the plaintiff's lumbar MRI scan, noting it to show a large central disc protrusion unchanged in size since the earlier scan in January 2018. The additional clinical detail at this time was noted as being an L5/S1 annular tear: Exhibit "A", Volume 1, p 631.

Prince of Wales Private Hospital - Operation report - 26 November 2018

1. On 26 November 2018, Dr Mobbs carried out a bilateral facet block injection procedure including applying an injection that involved the paravertebral nerves at L5/S1 to alleviate the plaintiff's low back pain and nerve root pain as well as targeting the facetogenic pain source: Exhibit "A", Volume 1, pp 756 - 757.

Dr Kevin Tay - Radiologist - Lumbar MRI - 1 February 2019

1. On 1 February 2019, at the request of Dr Mobbs, the plaintiff underwent a lumbar MRI scan. Dr Kevin Tay reported the scan showed a small to moderate central disc extrusion at L5/S1 with an annular fissure, mildly narrowing the canal: Exhibit "A", Volume 1, p 759. This description of an annular fissure and of narrowing of the neural canal were new radiological features not previously identified in the radiological reports, suggesting a deterioration in the state of the L5/S1 disc.

Discectomy and total L5/S1 disc replacement surgery - 5 July 2019

1. On 5 July 2019 Dr Mobbs carried out an L5/S1 discectomy and total disc replacement surgery at Prince of Wales Private Hospital on account of the plaintiff's ongoing low back pain and post-traumatic disc herniation following prolonged conservative treatment: Exhibit "A", Volume 1, p 771.
2. The operation report for that total disc replacement procedure set out the sequential details of the operation: Exhibit "A", Volume 2, p 965.

Dr Victor Mansberg- Radiologist - 6 July 2019

1. On 6 July 2019 Dr Victor Mansberg, a radiologist, reported that the lumbar -xray and CT scan of the plaintiff's lumbar spine taken on that day showed the discectomy implant in satisfactory alignment: Exhibit "A", Volume 1, p 770; Volume 2, p 965.

Dr Ralph Mobbs - Neurosurgeon - 6 August 2019

1. On 6 August 2019 Dr Mobbs carried out a one month post operative review of the plaintiff and noted there has been week by week improvement. He scheduled a further review in 3 months: Exhibit "A', Volume 1, p 781.
2. On 2 October 2019, Dr Mobbs referred the plaintiff for physical therapy to Elite Spinal Physio and Pilates at Bondi Junction in the hope that the plaintiff would be benefitted by achieving greater movement. For that purpose, he set out a prescribed formula for increasing the plaintiff's movements and for improving her gait and her posture.
3. During oral submissions on 29 August 2023, in response to a query put to counsel, it was agreed and noted that the plaintiff had never attended Elite Spinal Physio and Pilates pursuant to that referral. That agreement was clarified in a subsequent note dated 30 August 2023, in which counsel for the plaintiff pointed out that such attendance was not possible because of the plaintiff's relocation to China, a claim that was supported by evidence: Exhibit "A", Volume 1, p134, paragraph 5; Exhibit "D". This is a matter that will be revisited and taken up in the consideration of the plaintiff's claim for damages for economic loss and concerning the mitigation issue.

Dr Guy O'Connell - Radiologist - 7 August 2019

1. On 7 August 2019 Dr Guy O'Connell reviewed the plaintiff's 5 week post operative x-ray and noted the disc replacement apparatus continued to remain in good position: Exhibit "A', Volume 1, p 780.

Dr Peijin Tew - Radiologist - 2 October 2019

1. On 2 October 2019 Dr Peijin Tew reported on the plaintiff's lumbar x-ray taken three months following total replacement of the L5/S1 lumbar disc. He reported that the positioning of the device was satisfactory: Exhibit "A', Volume 1, p 784.

Dr Ralph Mobbs - Neurosurgeon - 2 October 2019

1. On 2 October 2019, Dr Mobbs wrote to Dr Chan advising that 3 months post operatively, the disc replacement procedure has had a great result and has made a huge difference to the plaintiff's ongoing chronic mechanical back ache. He confirmed that the current x-ray shows the implant was nicely positioned and was filling the disc space. A six-month review was scheduled at this time: Exhibit "A', Volume 1, pp 785 - 786.
2. There is no evidence as to whether that proposed 6-month review took place, or if it did, what diagnostic conclusions might have emerged from that review. It seems from the chronology of the plaintiff's travel movements in Exhibit "D" that the plaintiff was in China at that time ,and was therefore unavailable for a review appointment.
3. Whatever the case might have been, the plaintiff's complaints of ongoing low back pain have continued.

Dr Peter Conrad - Surgeon - 9 September 2020

1. On 9 September 2020, at the request of her present solicitors, the plaintiff was re-examined by Dr Conrad, who provided a report on the same date: Exhibit "A", Volume 1, pp 85 - 88.
2. At this consultation Dr Conrad noted that the plaintiff had undergone an anterior disc arthroplasty comprising a total lumbar disc replacement procedure performed by Dr Mobbs on 5 July 2019. The x-ray seen by Dr Conrad showed the prosthesis was in good position. This consultation took place by Zoom because the plaintiff had moved to back to China in November 2019.
3. Dr Conrad noted the plaintiff's ongoing complaint of neck stiffness and considerable lumbar spine pain with radiculopathy. He recommended that further treatment be conservative, with physiotherapy, or the Chinese therapeutic equivalent, and a structured rehabilitation program and assistance with housework. He reiterated his view that the plaintiff's prognosis was guarded.

Dr Peter Conrad - Surgeon - 9 September 2020

1. On 9 September 2020, at the request of the plaintiff's preent solicitors, Dr Conrad provided a report which combined expressed a combined opinion concerning the plaintiff's calculated level of whole person impairment at 22 per cent: Exhibit "A", Volume 1, pp 89 - 91.

Medical Assessor McGrath - Orthopaedic Surgeon - 28 March 2022

1. On 28 March 2022, Medical Assessor McGrath was asked to assess the causal nexus between "the [unspecified] motor accident" and the plaintiff's lumbar spine problems: Exhibit "A", Volume 1, pp 178 - 184.
2. In essence, Assessor McGrath's assessment certificate was to the effect that there was no causal relationship and therefore the need for assessment of permanent impairment did not arise. It appears from the circumstances that there was no evidence as to whether any attempt was made to challenge that assessment certificate on administrative law grounds.
3. The basis for Assessor McGrath's view was set out in a medical chronology of selected documents as described in his certificate, where prior to the second accident, there was radiological evidence of disc protrusions at the levels L4/5 and L5/S1.
4. The significance and reliability of Assessor McGrath's assessment certificate on the causation issues raised in this case will be considered in the analysis required for arriving at my findings concerning the consideration of the array of the medial evidence.

Dr Mathew Giblin - Orthopaedic Surgeon - 19 July 2023

1. On 19 July 2023, at the request of her present solicitors, the plaintiff was re-examined by Dr Giblin, who provided a report on the same date: Exhibit "A", Volume 1, pp 92 - 95.
2. Dr Giblin noted the fact that the plaintiff's recent return to Australia. He noted that she continued to have minor neck discomfort, with occasional headaches, and complained of low back discomfort, with pain also in the right thigh and right leg in the S1 distribution. He considered the plaintiff's injuries were consistent with the accidents described, resulting in a soft tissue neck injury from the first accident, and the need for L5/S1 disc replacement surgery due to the second accident, with the result that she remained unfit for work requiring repetitive bending, heavy lifting, or prolonged sitting or standing. He made conservative future treatment suggestions.
3. In that assessment, by it's terms, Dr Giblin did not support the plaintiff's contention that she no longer has any earning capacity.

Dr Mathew Giblin - Orthopaedic Surgeon - 19 July 2023

1. On 19 July 2023, at the request of her present solicitors, Dr Giblin provided a report expressing his opinion that the plaintiff's calculated level of whole person impairment was 22 per cent: Exhibit "A", Volume 1, pp 96 - 97.

Dr Mathew Giblin - 19 July 2023

1. On 19 July 2023, at the request of her present solicitors, Dr Giblin provided a supplementary report expressing the opinion that the plaintiff could have injured her right knee in the accident as she had complained of "a lot of bruising" at the time. The accident was not specifically identified, but an earlier entry in the clinical progress notes of Dr Huang indicates this should be read as a reference to the second accident. Dr Giblin stated that he was unable to provide a diagnosis or an assessment of impairment on that question: Exhibit "A", Volume 1, pp 98 - 103.

Review of financial documents

1. Three categories of financial documents were tendered in evidence in these proceedings, namely the plaintiff's income tax returns, and two forensic accountant's reports which related to a separate claim for damages brought by Dr Chan.

Plaintiff's income tax returns for June 30th, 2015 & 2016

1. The first category of financial documents requiring consideration consisted of copies of the plaintiff's income tax returns for the financial years ended June 30th, 2015, and 2016: Exhibit "A", Volume 1, pp 54-61.
2. Those gross earnings were identified in those returns as being $200,198 and $107,604 respectively.
3. The evidence did not include any tax returns of the plaintiff for the 2017 financial year, or thereafter.

Vincent Forensic Accounting report dated 12 August 2019

1. The second category of financial documents requiring consideration consisted of a copy of a forensic accountancy report dated 12 August 2019, which the defendants obtained from Mr Lance Kahler, a chartered accountant from the firm Vincents, in relation to the economic damages claim brought by Dr Chan in these proceedings: Exhibit "A", Volume 2, pp 1315 - 1481.
2. The very detailed analysis and report by Mr Kahler identified and traced the structures, the incorporation history, and the trading history of a number Dr Chan's financial entities that were somehow related to his cosmetic surgery business, and from which he had obtained income over several years.
3. The context was that Dr Chan had made changes to the structures by which derived his income over a number of years. It appears that those structures underwent some changes due to Dr Chan's divorce from his first wife shortly before his marriage to the plaintiff.
4. Historically, those corporate entities and business names are identified in the evidence, as follows: 1. Zion Trading Trust; 2. Zion Service Trust; 3. Zion Trading Pty Ltd; 4. Zion Holdings Pty Ltd; 5. Sydney Breast Enlargement & Rhinoplasty Centre Pty Ltd; 6. Macquarie Street Cosmetic Surgery Pty Ltd; 7. Precise Imaging; 8. Australian Property Enterprise Trust.
5. For the purpose of these reasons, it is not necessary to trace the elaborate details and inter-relationships between those entities or the relevant dates of incorporation or deregistration, where some of those changes appear to have been influenced either by Dr Chan's first marriage ending in divorce, or his legitimate arrangements for minimising his taxation liability, or both.
6. It is sufficient to note that Dr Chan, through his various corporate, trust, and trading entities, sought to exercise his earning capacity in a way that legitimately minimised the incidence of his liability to pay tax. He also earned some of his income by speculatively trading in financial markets. Apparently, this continued until his physical condition became such that he was unable to continue as he was no longer able to generate his pre-accident levels of profitable income from his cosmetic surgery business.
7. The above-mentioned entities were considered by Mr Kahler in the context of the principles for assessing economic loss suffered by principals in circumstances where partnership and corporate structures are involved, where a principal of a business has control of the way the taxable income is treated, the principal may be regarded as the income earner when assessing damages, as identified and discussed in the decision of the High Court in Husher v Husher [1999] HCA 47; (1999) 197 CLR 138.
8. In the context of this case, on the issue of the plaintiff's claim for loss of earnings and loss of earning capacity, I consider that two standout features emerge.
9. The first such feature is, but for Ms Bao's injuries, she would most likely have continued to have been employed at an attractive sheltered rate of remuneration in her husband's business for so long as the business was able to remain trading and attract clientele to generate profitable income. Secondly, at the time, Dr Chan's business ceased to operate, apparently because of the effect of his own injuries, the quantum of the plaintiff's claim for loss of income stood to be assessed at prevailing market rates, and not the rates identified in her income tax returns.
10. In this case, if the plaintiff's sheltered pre-accident employment with Dr Chan ceased, as it did in the 2016 tax year, then the quantification of the plaintiff's claim for economic loss stood to be assessed on the more common and less lucrative basis of net average weekly earnings.
11. In this case, it is not necessary to undertake a precise forensic analysis of Dr Chan's income stream from his medical practice to arrive at an estimate of what, but for the first accident, the plaintiff would most likely have earned in the 2014 / 2015 tax year. Those earnings are sufficiently identified in the financial records tendered, and which will shortly be tabulated.

Lindsay Forensic Accounting report dated 2 October 2020

1. The third category of financial documents requiring consideration consisted of a forensic accounting report commissioned by the defendants.
2. That report, dated 2 October 2020, was prepared by Ms Tamara Lindsay, a chartered accountant, in relation to Dr Chan's separate claim for his own damages. That report analysed the trust income of his entities between 2011 and 2018: Exhibit "A", Volume 2, pp 1533 - 1572.
3. The plaintiff's gross earnings as an employed manager in the financial year ended June 30th, 2015 were identified as being $200,198. There were no employee earnings disclosed for the financial year ended June 30th, 2016.
4. Ms Lindsay's report confirmed that the plaintiff received a gross salary of $200,198 from the Zion Trading Trust in the financial year ending June 30th, 2015, and received no income from that trust in the financial year ended June 30th, 2016.
5. However, Schedule 2 to Ms Lindsay's report shows that in the 2016 tax year, the Trust had a distributable income of $648,217, which was distributed as follows; $107,604 was distributed to Ms Bao, $107,604 was distributed to Dr Chan, and the balance of $433,009, was distributed to an entity identified as Australasian Property Enterprise Trust.
6. In the context of the plaintiff's claim of being unable to fully carry out her work duties after the first accident, the equality of those two distributions of $107,604 as between herself and Dr Chan suggest that they were made by income splitting that was unrelated to earnings from personal exertion.
7. The Lindsay report confirmed that the historical pattern of Dr Chan's Trust income was as follows: Year Income 2011 $2,013,326 2012 $2,328,591 2013 $217,753 2014 $643,834 2015 $548,930 2016 $2,658,821 2017 $1,754,063 2018 $1,406,438

1. The fluctuation in those income figures and the related variations in income, expenses, and taxable income for those years, was not well explained in the evidence.
2. Such explanations could have been provided by either the plaintiff, or Dr Chan, or both, but they were not forthcoming. This was an unusual circumstance for a case in which the plaintiff bore the onus of proof for her claim of substantial economic loss.
3. It appears that Dr Chan's disclosure of a significant decrease in income in the 2013 financial year coincided with the divorce from his first wife.
4. On the evidence, the potential sources for explanations regarding financial matters and arrangements, were the plaintiff, (who had financial qualifications), and Dr Chan (who was the guiding mind of the business). Their evidence on such matters, was meagre and uninformative, to say the least.
5. I now turn to a consideration of the issues calling for decision as identified at paragraph [8] above.

Consideration of Issue 1 - Credibility and reliability of testimony

1. It is convenient to first consider the credibility and the reliability of the unchallenged evidence of the plaintiff's husband Dr Chan, and to then consider the credibility and the reliability of the evidence of the plaintiff.

Dr Chan - credit and reliability of evidence

1. The defendants took no objections to, and did not make any credit challenges to, the factual evidence within the evidentiary statement of the plaintiff's husband, Dr Chan.
2. Although there was no cogent explanation for the mid-trial decision not to call Dr Chan to give evidence in the plaintiff's case, despite the earlier indications from counsel that he would be called to give evidence via AVL, I draw no inferences adverse to the plaintiff on those matters, other than to record the obvious disadvantage incurred by the plaintiff in not having Dr Chan's medical reasoning available to explain some gaps in the background to and the pattern of his medical referrals of the plaintiff for treatment.
3. As Dr Chan was outside the jurisdiction and in Shanghai at the time of the hearing, he was not compellable as a witness in this case. Absent objections or challenges to his written evidence, I consider that the aspects of his evidence appearing within his evidentiary statements that were not inherently improbable formed a reliable basis upon which to make relevant findings of fact as required in the plaintiff's case wherever it became necessary to corroborate the evidence given by the plaintiff.
4. At this point it should be noted that aspects of his evidence which seemed improbable and unreliable concerned his descriptions of the plaintiff performing housework in circumstances where he was not present, and it was therefore unlikely he would have been in a position to know about such details whilst he was at work.

The plaintiff - credit and reliability of evidence

1. The defendants challenged the credibility and the reliability of aspects of the plaintiff's evidence on numerous topics in an extensive cross-examination and consequently argued that the plaintiff variously gave untruthful or unreliable evidence on crucial matters of fact in dispute.
2. The defendants' challenges were wide ranging as set out in the defendants' written submissions dated 9 August 2023. Those challenges were further as developed in subsequent oral submissions on 15 and 29 August 2023, and further written submissions forwarded on 29 August 2013. There was a brief submission in reply forwarded on 30 August 2023, and this was followed by further written submissions on 5 September 2023.
3. Before engaging with the submissions dealing with those matters and evaluating them to reach the required conclusions, it is necessary to make some important preliminary observations.
4. At the outset it is relevant to frame the task by observing that when Dr Chen last examined the plaintiff on behalf of the defendants on 12 February 2018 to prepare a report for the defendants, her report indicated that there was no suggestion that the plaintiff was exaggerating or fabricating her symptoms when examined. No such suggestion emerges from any of the medical assessments.
5. I also observe that when the plaintiff was extensively cross-examined, the defendants did not put any specific criticisms to her along the lines that she had given untruthful answers to questions asked of her by medical examiners.
6. In considering the issue of the plaintiff's credit, I have not overlooked that Dr Chen considered one of the plaintiff's reported symptoms to be non-dermatomal.
7. In my view, without further explanatory evidence that identifies and explains a particular and relevant instance of inconsistency or unreliability on account of that particular observation, if in fact that is what Dr Chen was intending to convey, I regard her cited comment to be of neutral and non-determinative significance.
8. I consider that to be so where there is unchallenged objective evidence which describes the plaintiff as having a mild neural impingement in her spine as found on imaging studies, and where, on post-operative clinical grounds, the treating neurosurgeon has accepted that the plaintiff has been left with chronic pain after that surgery.
9. In the circumstances, absent a more explanatory discussion on that point by Dr Chen I draw no conclusions adverse to the plaintiff on Dr Chen's non-dermatomal comment. My view in that regard is reinforced by the absence of any criticism of a diagnostic nature directed at the respective reports of Dr Giblin, Dr Conrad, and Dr Mobbs, which arose from their clinical examinations, particularly in circumstances where there is no basis within the evidence to cast doubt upon their clinical acumen on such matters.
10. It must be recognised that Dr Chen's tentative queries on the interpretation of imaging studies had not been finalised or resolved because she deferred making her final comments to await specialist consideration of the imaging scans by further expert radiological opinion which the defendants concede has not been obtained T130.43. In short, whatever Dr Chen was seeking to convey at the time she raised those queries, her concerns seem to have been overtaken by events.

Substantive credit challenges

1. I now turn to consider the defendant's substantive credit challenges to the plaintiff's evidence. These are summarised as follows: 1. The plaintiff gave untruthful written misrepresentations to the Home Affairs Department of the Australian Government when she applied for the renewal of her Australian permanent residency visa whilst she was in Shanghai; 2. The plaintiff's evidence in which she claimed to have been in excellent pre-accident health was unreliable; 3. The admittedly untruthful evidence the plaintiff gave as to the basis upon which she had engaged domestic assistance before and after the first accident; 4. The plaintiff's work history as recorded by medical examiners regarding her post-accident work activity contained arguably conflicting details; 5. The plaintiff gave vague and the at times unresponsive answers when she was called upon to address relevant questions.
2. My consideration of those matters now follows under the appropriate sub-headings which refer to those matters.

Untruthful misrepresentations in application for visa renewal

1. The plaintiff's application for renewal of her Australian permanent residency visa was made from Shanghai on 14 September 2021 whilst she was living in that location: Exhibit "A", Volume 1, p 478. She acknowledged that the words appearing in her on-line visa application were hers, and she said that the content of the document was correct: T42.50 - T44.2.
2. When questioned on that content she agreed that the statement that her husband was working in China was not correct: T44.9. In that regard, Senior Counsel for the defendants squarely put to her that she had provided wrong information to the Australian Government (T44.14) and that the assertion her husband was working in Shanghai was simply not correct: T45.20.
3. It was clear that when those matters were explored in cross-examination, the plaintiff sought to dissemble in her answers by claiming that the plan was for her husband to stay in Shanghai (T44.29), and that she held the opinion that because he had a work visa this meant he was working even though he was not working there: T44.39; T44.45. In my view, in the context of questioning on those matters of detail where candour was required, her deflective claim that she had not really "think too much" about those matters and "just wrote it down" simply lacked credibility.
4. The inescapable conclusion is that the plaintiff's visa renewal application contained material factual misrepresentations that would have misled the Department of Home Affairs. It is not necessary in these reasons to speculate on the possible motives for the plaintiff to have taken that approach.
5. When the plaintiff was further questioned on those matters, she sought to distance herself from having knowledge of such matters by stating she had no idea of her husband's intentions "because we are … actually separate": T44.47 - T45.4. That evidence was inconsistent with the statements made by her in the application form to the effect that they were together and pooled their resources as a couple to support each other financially, where she gives "petty cash [to her husband] as pocket money": Exhibit "A", Volume 1, pp 447-448.
6. These matters serve to detract from the credibility and the reliability of the plaintiff's evidence.

Unreliable evidence claiming good pre-accident health

1. The plaintiff's oral evidence by which she claimed her pre-accident state of health was good, and the documentary evidence comprising an objective pre-accident medical and psychological record to the contrary, has already been identified at paragraphs [54] to [62] above and it is unnecessary to here repeat it in summary form.
2. The fact that the plaintiff's claim of pre-accident good health was made with apparent ease and without hesitation, and the fact that it could be so readily contradicted by reference to the objective content of her pre-accident health records, leads me to conclude that the plaintiff's evidence on critical matters in dispute should be treated with caution and reservation unless corroborated by unchallenged and not otherwise inherently improbable evidence of a more objective nature.

Plaintiff's untruthful evidence concerning pre-accident domestic assistance

1. A relevant background to the consideration of the credibility and the reliability of the plaintiff's claim of needing to engage domestic assistance after the first accident on account of her injuries is provided by the content of the report of her pre-accident treating psychologist, Ms Sze, dated 24 November 2014: Exhibit "A", Volume 1, pp 594 - 595; Volume 2, p1235.
2. That report is summarised at paragraphs [59] to [63] above. The unchallenged and uncontradicted content reveals that just 2 months before the first accident, the plaintiff's health and well-being was significantly beleaguered by issues of concern and conflict over domestic support issues, including childcare and financial matters, these matters led her to attempt suicide.
3. It is against that background that the plaintiff's evidence of having cleaners come to the house needs to be considered.
4. The starting point for that consideration is the evidence within her first evidentiary witness statement, in which she asserted: "If I had remained uninjured I would have absolutely no need for the above services": Exhibit "A", Volume 1, p 133, paragraph 122.
5. Before obtaining admissions which traduced that evidence, the cross-examiner had closed the metaphoric gate on that subject by securing an admission having the effect that the plaintiff adopted the correctness of that cited statement: T22.36 - T22.49.
6. When the plaintiff was further cross-examined, she admitted that the above-cited portion of her statement was wrong: T23.1. In that context, she reluctantly agreed that she had engaged commercial cleaning services whilst uninjured before the first accident when she and her husband and their child resided in their apartment in Bathurst Street in Sydney: T22.36 - T22.49.
7. That evidence must be read against the background that the plaintiff had conceded that her statement (Exhibit "A', Volume 1, p 131, at paragraph 110), sought to give the incorrect impression that she required the assistance of domestic commercial cleaners because of injuries she had suffered in the first accident: T21.25 - T25.38. This was in the context of her admission that cleaners had been coming to her apartment up until the time of the first accident: T 21.28. Her attempts to deflect criticism on those matters were unconvincing: T23.25; T23.30; T26.3; T26.22.
8. I do not accept Dr Chan's documentary evidence on the subject of the timing of the engagement of domestic cleaners as probative to this aspect of the plaintiff's claim.
9. Absent objective confirmatory medical evidence, I do not accept as truthful the plaintiff's uncorroborated evidence to the effect that on account of being depressed at the time she signed the abovementioned evidentiary statement so that she had not carefully read the evidentiary statements prepared by her former solicitors before she signed them. There is no objective confirmatory lay or expert evidence to that effect. I therefore do not accept her unconvincing evidence by which she sought to disavow the content and the consequences of having signed those statements: T26.3.
10. The above-cited analysis of the evidence serves to detract from the plaintiff's credibility as a witness.

Criticisms concerning the plaintiff's evidence of impaired work capacity

1. The defendants' submissions made extensive criticisms of the plaintiff's answers to questions concerning her post accident capacity for work. Essentially, those criticisms were based on two strands of evidence, as now follows.
2. The first strand drew upon the vagueness of the plaintiff's answers to questions asked of her in cross-examination. The second strand drew upon matters of work history as recorded by medical examiners in their respective reports.
3. As to the first strand of criticism, the defendant's submissions drew upon a series of references in the evidence which were relied upon as relevant inconsistencies concerning the plaintiff's post-accident work capacity.
4. In my view, the analysis of those matters should be in the context of determining consequential questions relating to work capacity and mitigation of damages rather than just on the discrete issues involving the credibility and reliability of the plaintiff's evidence. Those matters will therefore be considered separately in connection with the mitigation question and the assessment of the plaintiff's claim for economic loss.
5. As to the second strand of criticism, in my view, the plaintiff's recorded work histories, of themselves, whilst relevant, do not serve to discredit the plaintiff's evidence regarding her impaired earning capacity.
6. In coming to that conclusion I observe the required caution of recognising the specific limited purpose of medical examinations, noting that in each instance, in this case, the primary focus of those examinations did not involve testing the plaintiff's capacity for her pre-accident or any other kind of work. A further caution to be observed is that it was not entirely clear as to whether the subject matter of the questions and her answers as recorded in summary form were obtained with or without the assistance of an interpreter: Mason v Demasi [2009] NSWCA 227, at [2].

Vague and unresponsive answers to questions

1. In my view, the credit challenges to the vagueness and the unresponsiveness of some of the plaintiff's answers to questions must be considered and tempered in the context of the plaintiff's post-accident disabilities and any identifiable related factors.
2. These included the plaintiff's difficulty focussing and concentrating because of her experience of pain (T19.9), drowsiness because she had taken pain killing medication (T25.20; T46.50), and because she was visibly upset on several occasions whilst being cross-examined, even to the point where her counsel justifiably felt obliged to seek a halt to the cross-examination on the afternoon of the first day of the hearing on account of her demeanour and her silence in response to questions: T54.33.
3. That said, there were some matters that operated to cast doubt upon the credibility and the reliability of the plaintiff's testimony. Those matters concerned variations between the content of aspects her written evidentiary statements and her oral evidence as already described.
4. This was in circumstances where her former solicitor had prepared those evidentiary statements for her (T32.26), and where she said she could not explain why some important matters of detail had been omitted from them (T38.16), and where she said she had not read her statements carefully before she signed them, possibly because she was depressed at the time: T32.34.
5. In combination, those matters, which were not explained to the point of satisfactory clarification in her oral evidence, required that her evidence be viewed with caution.
6. In coming to that view, I have discounted as being non-determinative, the factor of the plaintiff's nervousness (T17.17) and her upset demeanour that was clearly apparent on several occasions during cross-examination, where she was weeping and needed to take breaks to compose herself. In taking that approach, I observe the caution against making demeanour-based assessments as to credit: Fox v Percy [2003] HCA 22; (2002) 214 CLR 118.
7. That said, I gained the impression that Ms Bao was upset due to her reported experience of pain and discomfort, and because, in an outburst of emotion, she said, misguidedly, that she felt that the cross-examination had victimised and pressured her, and had portrayed her to be akin to being a criminal, despite being given assurances to the contrary: T58.40 - T59.14.
8. It appeared that she was plainly embarrassed at having to frequently give answers indicating that she could not remember important factual details when her evidence was being tested by cross-examination.
9. Here, I reiterate that the cross-examination of the plaintiff by Senior Counsel for the defendants was polite, respectfully courteous, and was considerate of the circumstances, and therefore beyond criticism.
10. The plaintiff's answers claiming a lack of recollection of details, were numerous and difficult to comprehend because the questions were straight forward: T19.22; T24.12; T26.38; T27.33; T28.4; T30.13 - T30.14; T30.30; T30.50; T31.24; T31.24; T31.39; T31.43; T34.2; T34.24; T37.11; 37.43; T39.19; T40.6; T40.29; T40.35; T40.37; T41.7; T41.14; T47.20; T51.29; T51.45; T51.48; T59.28; T63.17; T63.20; T65.5; T65.9; T65.36; T65.40; T66.41; T67.21; T67.21; T61.26; T67.26; T72.35; T72.44; T73.3; T73.8; T75.9; T75.15; T75.47; T77.1; T80.4; T80.19; T82.12; T83.2; T83.19; T83.27; 84.28; T84.34; T85.37.
11. In assessing the credit of the plaintiff I also take into account the claim in her evidence, although not more recently medically confirmed, that in the last few years she has been suffering from depression: T32.31. She proffered this as the reason why she did not carefully read the statement prepared by her former solicitors before she signed it: T 32.34. That said, given the importance of the issues to her, and given her level of tertiary education in this country, and her facility for communication in the English language, including in written form, I doubt the truth of her proffered explanation.
12. Given that all of those foregoing explanatory factors were at play to varying degrees, on balance, I find that there is overwhelming supportive force for the credit submissions made on behalf of the defendants to the effect that caution should be observed with regard to making findings of fact in the plaintiff's favour based on critical aspects of her evidence due to the factual unreliability of important parts of her evidence.

Conclusions on the credibility and the reliability of the plaintiff's evidence

1. The conclusions to be drawn from the foregoing analysis are essentially threefold, as follows.
2. First, it reflected poorly on the plaintiff's credit generally that she was prepared to submit incorrect and misleading information to the Australian Government to obtain an advantage when seeking a renewal of her visa from overseas.
3. Secondly, her above-cited evidence, by which she sought to distance herself from the incorrect content of her application to renew her visa when confronted with that incorrect content, and her attempts to obfuscate and deflect when questioned about it, discredited her as a witness in this case.
4. Thirdly, I conclude that her evidence on contentious matters of fact in this case should only be accepted where she has made relevant admissions against her interests concerning the issues to be determined, or where her evidence is consistent with matters objectively recorded or is consistent with acceptable and unchallenged expert evidence: Fox v Percy [2003] HCA 22; (2002) 214 CLR 118, at [31]; [33]; [150].

Consideration of Issue 2 - Conclusions from consideration of medical evidence

1. In sequence, the following paragraphs deal with topics comprising, first, an introduction the procedural context of the dispute emerging from the differing medical opinions, secondly, the identification of the questions which arise for determination on the state of the medical evidence, thirdly, the principles which guide the process of determining which medical opinions should be preferred, and fourthly, a critical review of the evidence on contentious factual questions as a prelude to determining those questions by findings of fact.

Procedural context of differing medical opinions

1. The parties relied upon their respective medical reports which contained divergent opinions based on variously assumed facts. This was in circumstances where the respective opinion givers were not required for cross-examination.
2. Beforehand, the parties appear not to have taken any steps to arrange for the respective opinion givers to meet in conclave to seek to narrow if not resolve identifiable areas of disagreement between them, and to clarify, with appropriate supporting reasons, the basis for any remaining differences of opinion: UCPR r 31.34.
3. It is apparent from the review of the medical and allied evidence set out between paragraphs [122] - [255] above, that differences of opinion have arisen within the reports of Dr Joan Chen, an occupational physician retained by the defendants on the one hand, and on the other hand, the reports of Dr Peter Conrad, a consultant surgeon, and Dr Mathew Giblin , a consultant orthopaedic surgeon, who were retained by the plaintiff's solicitors.
4. In each instance, the respective experts are legally qualified medical practitioners whose training, qualifications, experience, and expertise, has been assumed without challenge. Each of those experts have acknowledged the Code of Conduct for expert witnesses: UCPR, Sch 7.
5. Within that mix, the plaintiff has tendered and relied upon historical clinical correspondence containing the clinical conclusions of her treating neurosurgeon, Dr Ralph Mobbs, whose training, qualifications, experience, and expertise, have also been assumed without challenge.
6. Dr Mobbs was not asked to provide an expert evidentiary medical report. He was not asked to acknowledge the Code of Conduct for expert witnesses. He was not required for cross-examination on the content of his correspondence. There was no issue over his expertise as the operating surgeon, which entitled him to express reliable clinical opinions on matters within his field of expertise despite the absence of an acknowledgment of that Code. In those circumstances, I consider his correspondence to be a reliable source of material upon which to base findings of fact.
7. The plaintiff seeks to draw upon and rely upon the reports and opinions of Dr Conrad, Dr Giblin, and Dr Mobbs in order to prove the nature and the extent of her accident-related injuries and her causally related disabilities, whereas the defendants rely upon the opinion of Dr Chen to seek more limited causation findings based on opinions which were expressed tentatively, and not in final form, on an important causation issue arising out of the interpretation of the radiological imaging scans.

Emergent factual and causation questions

1. On examination of the range of respective medical opinions, the essential dispute within those opinions concerns the attributability of the plaintiff's lumbar spine problems to one or more of the accidents which are the subject of these proceedings. Accordingly, the emergent questions of fact may be conveniently summarised as follows: 1. Is there reliable medical evidence to support the plaintiff's claim that she sustained a low back injury in the accident on 14 December 2014? 2. Were the L4/L5 and L5/S1 disc protrusions identified by Dr Gerber in CT scans taken on 22 March 2016 relevantly caused by the accident on 14 December 2014? 3. Were the comparative changes seen in the radiological appearances of the plaintiff's lumbar disc protrusions in the series of post-19 August 2016 imaging studies relevantly caused by the accident on 19 August 2016, and if so, to what consequence? 4. In the alternative to (3) above, were the imaging changes seen in the series of post-19 August 2016 imaging studies consistent with a natural progression of normal age and activity-related wear and tear changes, or were they relevantly caused by the effects of the 19 August 2016 accident, either as a fresh injury or by means of a material aggravation of a pre-existing underlying condition?

Principles for discerning which opinions should be preferred

1. In this case, on the state of the medical evidence and according to where the onus of proof lies, it becomes necessary to consider the opposing expert medical opinions and make relevant findings based upon a concluded state of persuasion by preferring one body of opinion over another, where the relevant questions are left to be resolved by determining which of the expert opinions are the most persuasive: Majkic v Bonnano [2008] NSWCA 253, at [26], citing Larson v Commissioner of Police [2004] NSWCA 126, at [48]; Cupac v Cannone [2015] NSWCA 114, at [17] - [18].
2. The required analysis must proceed as best can be achieved in the circumstances by an examination of the explanatory reasons which base the differing opinions: UCPR r 31.27(1)(c); UCPR Sch 7 cl 3(e).
3. In cases requiring findings of fact involving conflicting expert medical evidence there are well recognised limitations on a Court adopting its own analysis in preference to a cogently reasoned contrary duly qualified expert opinion unless the matter at issue involves common knowledge or is a matter of permissible judicial notice: Strinic v Singh [2009] NSWCA 15, at [60].
4. In view of the conclusions I have reached concerning findings on the credibility and the reliability of the plaintiff's testimony, I now turn to an analysis of the objective medical evidence to address the key questions identified at paragraph [348] above.

Question (1) - Was the plaintiff's low back injured on 14 December 2014

1. Dr Chen considered the gaps in the temporal connection between the onset of the plaintiff's back pain and the first accident meant that a positive connection was unlikely. No expert evidence contradicted that opinion.
2. What now follows is a review of the facts considered within the medical and allied evidence in the date order in which it came into existence on this question of whether the plaintiff injured her lower back in the 14 December 2014 accident.
3. Absent any evidence of the plaintiff having experienced pre-accident symptomatic low back problems, this factual review of the objective records commences on 7 March 2015, which is some 12 weeks after the plaintiff's 14 December 2014 accident.

7 March 2015 - record made at 12 weeks - low back pain - Mr Hughes

1. On 7 March 2015, Mr Hughes made the first objective record of the plaintiff's complaint of having low back pain when he provided her with massage therapy: Exhibit "C", p 1.
2. Of itself, that record, which involves a temporal gap of 12 weeks, does not lessen the impact of Dr Chen's views, nor does it necessarily establish the existence of a causal connection between the plaintiff's report of back pain at that time and her first accident.
3. Unfortunately, Mr Hughes' record comprising Exhibit "C" did not provide or describe any further explanatory detail as to the timing of the first onset of the plaintiff's low back pain, and there was no independent narrative concerning the course of that pain. Descriptive testable evidence from Mr Hughes, and from the plaintiff's husband, Dr Chan, might well have illuminated that subject, but that evidence is not available for consideration.
4. Significantly, as appears at pages 10 - 11 of Dr Chen's 28 June 2016 report (Exhibit "A", Volume 1, pp 216-223J), when she formed her opinion on the absence of a causal connection on the material she had before her, and had also considered the content of Mr Hughes' letter comprising Exhibit "C" which identified a 12-week post-first accident record of the plaintiff's back complaint for which he provided her with massage treatment on 7 March 2023.
5. When Dr Chen considered the two identified temporal gaps she had identified, she first expressed the opinion that "a more than 12 month temporal gap between the accident and the current low back complaint … makes it highly unlikely the two are related", and secondly, assuming a 3 month gap based on the record of Mr Hughes, she also considered that gap to indicate it was "unlikely that the two are connected" :Exhibit "A", Volume 1, pp 216 - 223J.
6. Those views, which were cogently reasoned, were not relevantly contradicted by other expert evidence.

22 March 2016 - record made at 66 weeks - history of low back pain - Dr Gerber

1. On 22 March 2016, Dr Gerber recorded the plaintiff's history of back pain as the reason for carrying out a CT scan of her lumbar spine. He identified the presence of disc protrusions at L4/L5 and L5/S1 without neural canal encroachment.
2. Although Dr Chen did not have that report when she saw the plaintiff on 28 June 2016, that does not detract from this part of her opinion.
3. Dr Gerber's CT investigation was carried out at the request of the plaintiff's husband, Dr Chan. It seems more probable than not, that if called, Dr Chan's evidence may well have illuminated questions concerning the clinical circumstances in which it was decided to order this CT scan.
4. An examination of the relevant circumstances would ordinarily be expected to have included a description of the timing of onset, the pattern, and the duration of relevant symptoms.
5. In that context, apart from the evidence of the plaintiff in circumstances where the credibility and the reliability of her evidence has been impugned, the only objective evidence of an early complaint by her of back pain between 7 March 2016 and the occurrence of the second accident came from Mr Hughes' document marked Exhibit "C", which described what seems to have been noted as varying, unrelated, or differently located generalised instances of back pain, namely on 3 April 2015, upper back pain on 6 June 2015, and generalised back pain on 22 August 2015.
6. Of themselves, those differing descriptions by Mr Hughes do not support the plaintiff's claim of continuity or consistency of low back symptoms since the 14 December 2014 accident.
7. In between the period of Mr Hughes' note of back pain on 7 March 2015, and Dr Chen's examination on 28 June 2016, the plaintiff was seen on various occasions by Dr Cai, Dr Giblin and Dr Conrad.
8. In addition, it may be assumed the plaintiff had frequent contact with her husband, who appears to have had a decisive role in her medical management, as is evidenced by his referral of her to other practitioners, such as Dr Gerber and Dr Mobbs.
9. The plaintiff's pre-accident consultations with Dr Cai, Dr Giblin and Dr Conrad were occasions on which it would ordinarily be expected that if she was experiencing accident-related low back pain, a history to that effect would have been elicited from her by those practitioners, and this ordinarily would have been recorded item in a commentary set out within the reports of those examiners.
10. The absence of any recorded history of the plaintiff having low back pain in that period tends to strongly suggest she did not have any such accident-related symptoms between 14 December 2014 and 19 August 2016.
11. On the state of the evidence in this case, an inference to the contrary could only be based on unreliable and impermissible speculation. I therefore decline to draw such an inference from the available evidence.

Dr Chen - 28 June 2016 - record made at 80 weeks - complaint of low back pain

1. On 28 June 2016, some 80 weeks after the first accident, Dr Chen noted the plaintiff's history of the onset of her back pain as being "about late 2015".
2. At this point, with due regard to the history of onset of back pain in "about late 2015", it is relevant to observe that according to the records produced by the Department of Homeland Affairs, the plaintiff left Australia to travel to Shanghai, and returned to Sydney on 1 November 2015: Exhibit "D".
3. Based on what Dr Chen had before her, understandably, she expressed the opinion that the plaintiff's lower back pain was not causally related to the first accident because of the temporal gap between the accident and the first record of back pain.
4. There is no basis within the evidence from which to reasonably conclude that at the time Dr Chen formed her cited opinion which negatived a causal connection between the plaintiff's low back symptoms and the first accident because of those temporal gaps of about a year, or in the alternative, 3 months, that her cited conclusions were incorrect.
5. Nothing that appears in the reports of Dr Giblin, Dr Conrad, or from Dr Mobbs' letters, or in the notes and records of Dr Cai, or in any other document contemporaneously corroborates or establishes the proposition that the plaintiff injured her lower back in the accident on 14 December 2014.
6. Accordingly, Dr Chen's causation opinion must stand as an unchallenged obstacle to the plaintiff's claim of having injured her lower beck in the accident on 14 December 2014.

Question (2) - Cause of L4/L5 and L5/S1 disc protrusions seen on 22 March 2016

1. On the state of the evidence, the precise circumstances which led Dr Chan, the plaintiff's husband, refer her to Dr Gerber for him to carry out a CT scan of her lumbar spine on 22 March 2016, remain unclear.
2. The only clinical information, albeit brief, on this question comes from Dr Gerber's note of the clinical indication for this CT scan being "Back pain". The timing of onset and duration of that back pain was not recorded.
3. Dr Gerber's interpretation of the 22 March 2016 lumbar CT scans is necessarily limited to his radiological descriptions of the pathologies he observed and recorded. He was not required to express an opinion on the possible causes of those findings, and he did not purport to do so.
4. On 28 June 2016, Dr Chen made no comment as whether the finding of an L4/L5 disc protrusion was a pre-existing phenomenon.
5. The above-cited medical evidence confirms that before the plaintiff's second accident on 19 August 2016, she had pre-existing disc protrusions in her lumbar spine at the levels L4/L5 and L5/S1. It follows that those pre-existing disc protrusions, whether symptomatic or not, were potentially vulnerable to subsequent exacerbating or aggravating trauma, which could render those protrusions symptomatic. Dr Chen confirmed that this was a possibility.
6. As neither Dr Giblin, Dr Conrad, Dr Cai, Dr Huang, or Dr Chen could relate the disc protrusions to the accident of 14 December 2014, it must be concluded that the possible explanations for Dr Gerber's findings involve the alternative propositions that: first, either they were pre-existing and had become symptomatic due to the wear and tear of normal activity after the first accident and before the second accident, or secondly, some form of precipitating trauma had occurred in the period between the first and the second accidents, which the plaintiff did not know about, or could not now recall.
7. Either way, the medical evidence tendered by the plaintiff does not discharge the onus of proof that she bears to reliably inculpate the 14 December 2014 accident as the cause for Dr Gerber's radiological findings.

Question (3) - Causation significance of lumbar imaging changes

1. A causation analysis permits a hindsight evaluation of the known facts: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].
2. It is convenient to start that analysis with Dr Mobbs' clinical "bad news" comment that "the MRI tells the story here": Exhibit "A", Volume 1, pp 115-118. That comment was made on 21 February 2018, when the plaintiff was reportedly and assessed as struggling with her chronic ongoing discogenic pain, some 16 months before her surgery on 5 July 2019. That comment was obviously made in the context of Dr Mobbs' consideration of the 31 January 2018 MRI report of Dr Dawes.
3. Dr Dawes' report, and Dr Mobbs' cited comment, should be viewed in the historical context which emerges from the sequence and summary of the respective observations of the radiological imaging and intra-operative surgical appearances concerning the plaintiff's lumbar spine, as follows: 1. The starting point is to observe that there are no available pre-accident imaging scans of the plaintiff's lumbar spine; After the first accident and before the second accident 1. 22 March 2016 - Dr Gerber - post-first accident CT scan - broad based central posterior disc protrusion at L4/5, and a slightly larger central posterior disc protrusion at L5/S1, neither of which were seen as encroaching upon the neural canal: Exhibit "A", Volume 1, pp 104-105; pp 551-552; After the second accident and before discectomy surgery 1. 21 September 2016 - Dr Plehwe - post-second accident CT scan- large central L5/S1 disc protrusion which descended to the upper part of the S1 vertebral body with some impingement upon some nerve roots of the cauda equina; Exhibit "A", Volume 1, p 110; 2. 31 January 2018 - Dr Dawes - MRI scan - minimal facet joint arthropathy at L5/S1 with some desiccation and loss of disc height without evidence of nerve root compression: Exhibit "A", Volume 1, p 746; 3. 7 May 2018 - Dr Wenderoth - MRI scan - large central disc protrusion unchanged in size since the previous scan, but noting the presence of an annular tear: Exhibit "A", Volume 1, p 631; 4. 1 February 2019 - Dr Tay - MRI scan - small to moderate central disc extrusion at L5/S1 with an annular fissure and narrowing of the neural canal: Exhibit "A", Volume 1, p 759; Intra-operative surgical description by Dr Mobbs 1. 5 July 2019 - Dr Mobbs - surgical findings at discectomy - post traumatic disc herniation: Exhibit "A", Volume 2, p 965.
4. Dr Gerber was the only radiologist to report the early presence of an L4/L5 disc protrusion. It is possible that the subsequent reports made no reference to the L4/L5 disc protrusion because that protrusion was not thought to be clinically significant. The evidence does not reliably explain the absence of any reference in those later reports of an L4/L5 disc protrusion as was found by Dr Gerber on 22 March 2016.
5. As there no objective evidence of the plaintiff having injured her lumbar spine in the accident on 14 December 2014, and given the unchallenged comments by Dr Chen which remain unrebutted, in which she identified the temporal gaps between the first accident and the plaintiff's first recorded complaint of back pain and the CT scan observations of Dr Gerber, the causation significance of Dr Gerber's report is that it provides a baseline from which to gauge the effects of the second accident on the plaintiff's lumbar spine.
6. In a comparative viewing the two CT available scan reports from that baseline, it becomes apparent that an identifiable difference between Dr Gerber's pre-second accident report on the appearances of the L5/S1 disc on 22 March 2016 and Dr Plehwe's post second accident report is that the L5/S1 disc protrusion was by then, that is 3 days after the second accident, seen to be encroaching on some nerve roots of the cauda equina structure of the lumbosacral spine. This was a new radiological finding post-second accident.
7. Dr Plehwe did not comment on the appearance of the plaintiff's L4/L5 disc protrusion which had earlier been identified by Dr Gerber. The reason for this remains unclear as there was no explanatory evidence called or tendered.to illuminate that question.
8. A significant matter of historical context which follows the second accident and the changed CT appearances at L5/1 is the subsequent history recorded by Dr Huang on 10 October 2016, some 22 days after the second accident, concerning the plaintiff's right sided sciatic nerve pain and the numbness in the right leg which was assessed as being caused by the L5/S1 disc protrusion and nerve root compression: Exhibit "A", Volume 1, pp 576-577.
9. Apart from Dr Chen's report, which was tentative with regard to the interpretation of imagining reports, a series of consistent medical opinions then followed: 1. On 25 October 2016, Dr Yu considered that the plaintiff's right-sided sciatic symptoms corresponded to the second accident: Exhibit "A", Volume 1, p 576-577; 2. On 24 November 2016, Dr Mobbs identified the plaintiff's discogenic low back pain to come from the L5/S1 disc with some chemical radiculitis, which seems to imply that some disc exudate had produced a chemical reaction affecting the right sciatic nerve: Exhibit "A", Volume 1, pp 550-551; 3. On 15 February 2017, Dr Conrad attributed the disc prolapses seen on CT scanning to the second accident, based on the CT scan reports he had seen: Exhibit "A", Volume 1, pp 69-72. (His reference to the L4/L5 prolapse as being due to the second accident must be seen to be erroneous in light of the timing and content of Dr Gerber's report dated 22 March 2016); 4. On 24 May 2017, Dr Giblin attributed the plaintiff's low back pain and L5/S1 radiated symptoms to the second accident: Exhibit "A", Volume 1, pp 73-76; 5. On 22 November 2017, Dr Mobbs identified the plaintiff's L5/S1 discogenic and facetogenic pain to be a post-accident problem: Exhibit "A", Volume 1, p 740; 6. On 12 February 2018, Dr Chen was non-committal on whether the second accident was the cause of the plaintiff's lumbar symptoms because of her apparent uncertainty as to the interpretation of the radiological findings. That said, she did accept the possibility that the second accident might have caused an aggravation of a pre-existing protrusion: Exhibit "A", Volume 1, p 224-240. That was a fair and material concession. 7. On 21 February 2018, Dr Mobbs referred to the plaintiff's ongoing L5/S1 problems and made no comments to suggest that he had altered his earlier expressed views on the cause of those problems: Exhibit "A", Volume 1, pp 115-118; p 747; 8. On 21 March 2018, Dr Giblin noted the plaintiff's problems were deteriorating, and noted she was awaiting the approval of the CTP insurer for the cost of proposed surgery. He made no comments to suggest that he had altered his earlier expressed views on the cause of those problems: Exhibit "A", Volume 1, pp 77-80. It is noteworthy that the plaintiff's surgery did not occur until some 16 months later. 9. On 23 April 2018, Dr Conrad noted the plaintiff's back and right leg problems had deteriorated and noted she was awaiting surgery. He made no comments to suggest that he had altered his earlier expressed views on the cause of those problems: Exhibit "A", Volume 1, pp 81-84; 10. On 5 July 2019, intra-operatively, Dr Mobbs identified a post-traumatic L5/S1 disc herniation at discectomy and disc replacement surgery: Exhibit "A", Volume 1, p 771; 11. On 28 March 2022, Assessor McGrath made a certification to the effect that the second accident had not caused the plaintiff's plaintiff's lumbar disc protrusions: Exhibit "A", Volume 1, pp 178-184; 12. On 19 July 2023, Dr Giblin reiterated his earlier expressed view and noted that the plaintiff's complaints were consistent with the described accidents: Exhibit "A", Volume 1, pp 92-95.
10. It is noteworthy that Dr Chen's opinion on the significance or otherwise of the radiological appearances shown on the plaintiff's lumbar imaging remained incomplete because she requested the input of other experts to clarify that issue.
11. As events turned out, Dr Chen did not get the opportunity to finalise her opinion because the further investigatory steps she had recommended had not been taken by the defendants: T 130.43. Therefore, I do not regard any expressions of doubt she has raised on the interpretation of the imaging scans to be material or causatively determinative.
12. Accordingly, on the consideration of a preponderance of the medical evidence, as summarised above, where the evidence from Dr Mobbs, Dr Conrad, Dr Giblin, and Dr Yu balanced against the more tentative views of Dr Chen are more persuasive, I am persuaded that on the issue of the nature and extent of the plaintiff's L5/S1 and related problems, these problems occurred due to the effects of the trauma from the second accident.
13. In coming to that conclusion, by which I have preferred the identified opinions of Dr Mobbs, Dr Conrad, Dr Giblin and Dr Yu to the opinions of Dr Chen, I have not overlooked the medical assessment certificate of Assessor McGrath.
14. On 28 March 2022, Assessor McGrath issued a certificate setting out his Medical Assessment of the plaintiff's degree of permanent physical impairment following injury to her lumbar spine.
15. Assessor McGrath's certificate identified the fact that he had considered the effects of both the accidents of 14 December 2014 and 19 August 2016. His reasons refer to the second accident as the index accident. His assessment was carried out during a paper review without any examination of the plaintiff to clarify or explore relevant aspects of her history.
16. The papers considered by Assessor McGrath were not comprehensively identified, although he did refer to several medical reports to extract items of history. The documents were not identified with greater precision than the opaque statement: "I have considered the documents provided in the application and reply": Exhibit "A", Volume 1, p 179.
17. Assessor McGrath reasoned that as the plaintiff had a "prolapsing disc at the L5/S1 level" before the index accident. He said that his examination of the "pre MVA CT scan [singular not plural] suggest, that no further prolapse of the disc occurred in the MVA". The inherent factual confusion within that ambiguity does not reliably assist a causation analysis, and without further explanation, the logic of the suggestion that no further prolapse occurred in the second accident involves an unacceptable ipse dixit statement that lacks a sufficiently reasoned foundation: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87]; UCPR r 31.27(1)(c); UCPR Sch 7 cl 3(e).
18. The analysis which led to that ipsedixitism appears superficial and incomplete as it appears not to have taken into account the clinically accepted symptom of leg pain associated with the second accident and Dr Mobbs' intraoperative finding of a post-traumatic, that is, trauma caused, herniation of the L5/S1 disc, which seems to correlate to the previously described annular tear, where the defendants did not seek to challenge Dr Mobbs' attribution of those findings to the second motor vehicle accident.
19. In the same vein, Assessor McGrath's inherently speculative suggestion that a referral bias could have afflicted the reporting on the CT scans where different radiologists "possibly" used different CT technology involving different referrals, was not put to any of the radiologists who authored those early CT scan reports. If the defendants intended to harvest criticisms based on Assessor McGrath's stated views, then fairness required that such propositions should have been put to the relevant experts for their comments on such suggestions.
20. It was against that background that Assessor McGrath's conclusion was that it was more likely that the consequences of the second motor vehicle accident had resolved and were overtaken by the natural history of disc disease, culminating in a need for disc replacement surgery. That analysis did not include a consideration of whether the second motor vehicle accident had been a material contributing factor to the plaintiff's need for disc replacement surgery.
21. Assessor McGrath's narrative went on to express an alternative opinion to the one cited above. This was to the effect that the second motor vehicle accident was a "not a cause more than negligible for her current lumbar spine impairment": Exhibit "A", Volume 1, pp 182-183. That phraseology was crafted to conform to the regulatory requirements for a MAS assessment and not to assist or inform a legal causation analysis.
22. Assessor McGrath's certificate did not contain sufficiently cogent reasons for preferring one of those alternative explanations.
23. Assessor McGrath then went on to state: "We [sic] can conclude, that the disc replacement was reasonable, but not a treatment arising out of the MVA", thereby traducing the clinical opinion of the treating surgeon by means of a limited statutory paper review.
24. According to the above analysis, in my view, the significance of Assessor McGrath's assessment can be stated in relatively short terms.
25. It was not based on a clinical examination of the plaintiff at which relevant factual items of history and symptoms could have been explored for context. It's protected status which precluded cross-examination necessarily excludes it from being an expert opinion from a witness who could be compelled to attend for exploratory cross-examination on the content of his written views. Instead, it was simply an administrative gateway assessment which, for the purposes of administering the MAC Act scheme, determined whether the plaintiff was entitled to claim damages for non-economic loss: s 131 of the MAC Act.
26. As such, it was not a reliably conclusive analysis of the causation issues raised in this case regarding the cause of the plaintiff's ongoing back-related disabilities: Pham v Shui [2006] NSWCA 373, at [91]; [98].
27. Assessor McGrath's assessment may therefore be disregarded as being non-determinative in a legal causation analysis for assessing the plaintiff's remaining entitlements to damages.

Question (4) - Imaging changes: Natural progression or post traumatic cause?

1. On a review of the medical evidence as summarised between paragraphs [122] - [255] above, I find that there is no reliable basis for assuming that the findings by Dr Gerber of disc protrusions at L4/L5 and L5/S1 would have necessarily progressed to become symptomatic without trauma as a natural progression from normal wear and tear. I find that the defendants have not discharged the onus of establishing that proposition. That said, the plaintiff bears the onus of proof on specific matters of causation: s 5D of the CL Act: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] - [51].
2. Based on the 22 March 2016 findings of Dr Gerber and the late onset of the plaintiff's back pain following the first accident, I find that the plaintiff most probably had pre-existing degenerative changes in her lumbar spine at the levels L4/5 and L5/S1, as was identified by Dr Gerber, and these became symptomatic before the second accident in late 2015, as the plaintiff had disclosed to Dr Chen on 28 June 2016.
3. I am satisfied that, but for collision on 19 August 2016, the significant forcefulness of which may be gauged from the significant damage to the vehicle in which the plaintiff was seated so as to render the vehicle undriveable, the plaintiff would not have suffered injury to her lumbar spine: s 5D(1) of the CL Act.
4. I am also satisfied that, but for that collision, the plaintiff would not have sustained significant aggravating soft tissue trauma to the lumbar spine: s 5D(1) of the CL Act. The result has been that the plaintiff's painful and debilitating lumbar spine and related radiculitis symptoms ensued, and ultimately, this required the surgical treatment which was undertaken reasonably by Dr Mobbs.
5. On the basis of the above analysis of the medical and allied evidence, I find that the plaintiff has discharged the onus of establishing that her L5/S1 disc protrusion was materially aggravated by the trauma of the second accident. It is noteworthy that Dr Chen accepted that such a mechanism was possible. The ultimate effect was that she developed chronic back pain with right leg radiculitis, which required surgical treatment that was ultimately carried out by Dr Mobbs on 5 July 2019.
6. In my view, the opposing proposition that those problems were due to a natural process of an underlying pathology has not been satisfactorily demonstrated by reliable expert evidence. Therefore, a positive finding along the lines of that proposition is not available, or justified, on the state of the medical evidence presented in this case.
7. In light of those conclusions, I now turn to identify my findings of fact on matters relevant to the assessment of damages. In that process, some of the undisputed background matters that emerge from the unchallenged and not otherwise improbable content of the histories contained in medical reports are available to be drawn upon for making such findings: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995 (NSW).

Consideration of Issue 3 - Factual findings on matters in contention

1. The foregoing analysis of the evidence leads me to find the following relevant matters of fact: 1. Prior to the accident on 14 December 2014, the plaintiff was in good physical health, although the preponderance of the medical evidence and the absence of evidence of earlier injuries suggests she had pre-existing asymptomatic disc protrusions on her lumbar spine at the levels L4/5 and L5/S1; 2. The plaintiff's accident on 14 December 2014 involved a forceful impact from behind which caused her to suffer soft tissue injuries to her neck, her trapezius muscles, more so on the left, and her left shoulder, however, contrary to her statement, I find that she did not suffer any injury to her lumbar spine in that accident; 3. The content of the plaintiff's statements to the effect that she suffered an injury to her lower back in the accident on 14 December 2014 are in my view unreliable. That portion of her written evidence appears to be based on inaccurate conflation that was constructed well after the events, and then carelessly or mistakenly adopted by her when she signed her evidentiary statements which were prepared by her former solicitors; 4. The cause of the onset of the plaintiff's low back pain in late 2015 has not been reliably identified. Such onset possibly related to the after effects of either carrying her infant child, as was suggested by Dr Chen, or because of the effects of her forward leaning work posture when working in the beauty department of her husband's business, or both, possibly then aggravating the previously asymptomatic L4/L5 and L5/S1 disc protrusions in her spine; 5. The plaintiff's accident on 19 August 2016 involved a forceful side impact which caused the plaintiff to suffer soft tissue injuries to her neck, left shoulder, her lumbar spine, and her right knee; 6. The injuries to the plaintiff's lumbar spine in the accident on 19 August 2016 produced local pain and this then extended to referred or radicular pain in her right leg; 7. As a result of those injuries and the plaintiff's related disabilities that involve her the neck, left shoulder, lower back and right leg, she has experienced ongoing discomfort, with particularly chronic and debilitating discogenic and facetogenic pain in her right leg emanating from her lower back; 8. As a necessary consequence of the aggravating effects of the accident on 19 August 2016, on 5 July 2019, the plaintiff underwent discectomy for post-traumatic L5/S1 disc herniationand disc replacement surgery performed by Dr Mobbs; 9. The post-traumatic L5/S1 herniated disc which Dr Mobbs identified and excised on 5 July 2019 was most probably as a result of the aggravating trauma of the accident on 19 August 2019, as he has identified 10. The prognosis for the plaintiff obtaining a material improvement in her lumbar spine problems remains poor; 11. As a consequence of those matters, the plaintiff has suffered an impairment in her earning capacity and in her physical capabilities generally, and the effect of those matters, requires assessment, subject to appropriate discounts.
2. Within the scope and parameters of those findings some side issues emerge which will be identified with further findings relevant to particular aspects of the plaintiff's claim for damages.
3. At this point it becomes necessary to identify the plaintiff's most likely circumstances but for the occurrence of the two accidents which are the subject of these proceedings: s 126 of the MAC Act; s 13 of the CL Act.
4. Absent the injuries the plaintiff sustained in those two accidents it seems most likely that she would have continued to have been employed in Dr Chan's clinic as manager of the beauty department undertaking administrative work I addition to her hands-on beauty treatments that she was providing to customers, where she was being paid a salary at a very favourable rate.
5. A continuum along those lines remained vulnerable to being potentially disrupted by several adverse events that were foreseeable. These included: the possibility of Dr Chan incurring injury with the result that he would not have been able to maintain the viability of his business plan and cosmetic surgery practice; Dr Chan could have experienced a significant financial reversal from losses from his trading on financial markets with a similar adverse impact on to the viability of his business plans and his practice; similar risks occurred in relation to Dr Chan's property investments which seem to have been financially geared; marriage difficulties were foreseeable in light of the pre-accident matters identified by Ms Sze; alternatively, the advent of further children of the marriage, as was planned, could have interrupted the plaintiff's availability to continue working; and finally, other conventional vicissitudes could have had a similar impact on her health and her pre-existing disc protrusions, and therefore, on her earning capacity.
6. Any of those matters, either alone or in combination, had the potential to randomly interfere with the plaintiff's plans for continued employment at the favourable rates shown the financial records tendered in these proceedings.
7. In light of those matters, a discount greater than that normally referred to as a conventional discount should be applied to the assessment of the claims for future economic loss and future domestic assistance.

Issue 4 - Mitigation of damages

1. The defendants' suggested that the plaintiff has failed to mitigate her damages: T105.20; T109.5. The mitigation issues involve a consideration of the legislative provisions, the pleadings, identification of relevant principles discussed in previous authoritative decisions, and the application of those matters to the facts which emerge from the evidence.

Legislation

1. Following her injuries, the plaintiff was under an ongoing duty to mitigate her damages: s 136(1) of the MAC Act. In this case, when assessing damages, I am required to consider the steps taken by the plaintiff to mitigate her damages as well as the role of the insurer regarding mitigation: s 136(2) and s 136(6) of the MAC Act. The defendants bear the onus of proving that the plaintiff has relevantly failed to mitigate her damages: s 136(4) of the MAC Act.

Pleadings

1. Although the defendants did not actually plead an allegation to the effect that the plaintiff had failed to mitigate her damages, having regard to the way in which the case was fought, including how the mitigation issue emerged from within the evidence of the plaintiff, I consider the defendants are entitled to rely on that evidence to argue that there was a failure to mitigate.

Principles

1. On the question of whether a person has taken reasonable steps to mitigate losses, subjective factors must be considered: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3. A prospective analysis is required rather than an analysis of what a theoretical hindsight analysis might suggest: Arnott v Choy [2010] NSWCA 259, at [161]; Mahony v Watson [2003] NSWCA 259, at [52] - [53], Brogan v Geary (1995) Aust Torts Reps 81-342, at 62,421.
2. The defendant bears the onus of showing that a contended different course would have made a material difference to outcome of the plaintiff's condition: Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235, at pages 239G - 240A.

Areas of evidence which raise mitigation issues

1. There are four particular areas from within the evidence which could reasonably support an argument that the plaintiff has failed to mitigate her damages, namely not actively pursuing some initial post-accident exercises aimed at alleviating her symptoms of pain and discomfort; not attempting to pursue an argued residual earning capacity; delaying operative treatment; and not pursuing post-operative physiotherapy. The consideration of those matters now follows.

Consideration of the mitigation issue

1. The elements identified in the preceding paragraph are considered below.

Initial post-accident exercises

1. On 28 June 20216, the plaintiff told Dr Chen that she did not pursue the remedial exercises that had been suggested to her following her first accident: Exhibit "A", Volume 1, p 217. In her oral evidence could not recall those details: T30.28 - T31.40.
2. There is no evidence to reliably suggest that the plaintiff's earning capacity or her capacity to undertake domestic cleaning tasks would have materially increased if she had adhered to that suggested regime of exercises, which, it appears, would have only been directed at her ability to better enjoy the amenity of her life, which is a non-compensable issue in this case.
3. Accordingly, no offset for failure to mitigate relevantly arises from the plaintiff's failure to pursue the exercises that had been recommended to her.

Not pursuing a residual earning capacity

1. In oral evidence the plaintiff acknowledged that after her injuries she did not actively seek out alternative work: T15.3 - T15.37. He rational for not doing so was that she believed she could not work: T86.18. Her subjective belief to that effect does not form a basis for a finding that she had knowingly failed to mitigate her damages. The obligation to mitigate in order to reduce the defendants' liability to pay damages does not require an injured person to work whilst suffering debilitating pain. This is so particularly where the plaintiff has been precluded from claiming damages for non-economic loss which includes damages for pain suffering and loss of amenity of life. In this context a failure to mitigate does not relevantly arise.

Delayed operative treatment

1. On or about 21 February 2018, Dr Mobbs recommended disc replacement surgery to the plaintiff. That surgery was not carried out until 5 July 2019. This was a delay of some 17 months. The evidence and the submissions disclose that the CTP insurer had declined to pay for that surgery based on the negative view it took on the issue of causation. The decision taken by the insurer to refuse to assist mitigation by declining to pay for the surgery cannot reasonably base a finding that there was a relevant failure to mitigate because of delayed surgery: s 136(6) of the MAC Act.

Not pursuing post operative physiotherapy

1. The evidence discloses that the plaintiff did not follow up on Dr Mobbs' referral for post operative physiotherapy treatment with Elite Physio and Pilates. This was because she went to China during the currency of that post operative recommendation. Those circumstances should not form a proper basis for a finding of a consequential unreasonable failure to mitigate her damages.

Conclusion on mitigation issues

1. In my view, in balancing those matters with the subjective factors which were operating in the plaintiff's circumstances, particularly her experience of pain, the evidence does not reasonably suggest that there have been any relevant or causative failures on the part of the plaintiff to mitigate her damages. Accordingly, I find that there is no reasonable basis upon which to conclude that the plaintiff's damages should be discounted by reason of a claimed unreasonable failure on her part to mitigate her damages.
2. I now turn to the assessment of the plaintiff's entitlement to damages.

Consideration of Issue 5 - Assessment of damages

1. As explained at paragraph [9] above, the plaintiff's claim is restricted to the following heads of damage: 1. Past economic loss and related superannuation; 2. Future economic loss and related superannuation; 3. Past domestic assistance; 4. Future domestic assistance; 5. Future out-of-pocket expenses; 6. Past out-of-pocket expenses.
2. As recorded at paragraphs [10] - [11] above, the parties made disparate submissions on the plaintiff's entitlement to damages. My assessment of each of the claimed heads of damage now follows.

Past economic loss and related superannuation

1. In order for the plaintiff to sustain her claim for past economic loss she must first satisfactorily establish a causally related impairment in her earning capacity, and secondly, she must then establish that such impairment was likely to be productive of an actual financial loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.
2. It was submitted on behalf of the plaintiff that the effect of the two accidents has effectively destroyed her earning capacity, a submission that was strongly contested by the defendants.
3. The plaintiff made an initial claim for past economic loss, including loss of employer funded superannuation, in the amount of $1,111,885: Exhibit "A", Volume 1, p13.
4. In subsequent written submissions dated 9 August 2023, the plaintiff's claim for past economic loss was claimed on two alternative bases, the first being $1,012,896, and the second being $524,152.
5. The first of those claims was based on an assumed loss of $2600 per week net, calculated at $910,000 net, plus superannuation of $100,386. The aggregate of those amounts did not match the amount claimed. The second of those claims, in the alternative, was based on an assumed loss of average weekly earnings of $1297 per week net over 350 weeks, plus 11 per cent superannuation.
6. In my view, neither of those two claims by the plaintiff should be accepted as they are each based on an incorrect and unacceptable factual analysis of the evidence, as will be shortly explained.
7. In contrast to the plaintiff's economic loss submissions, the defendants' submissions made no allowance for past economic loss. The initial basis for that submission by the defendants was that the plaintiff's injuries had not given rise to any significant incapacity for work. For reasons that will shortly become clear, I have not accepted that submission.
8. In my view, the defendants' approach relies upon a superficial analysis of the medical evidence. I have not accepted that analysis for reasons that will shortly be made clear.
9. The defendants' economic loss submissions invoked a series of general propositions, as follows.
10. The defendants characterised the plaintiff's evidence as being vague and unreliable; parts of the history she recounted were confused and unreliable; her husbands' business and the terms of her employment in that business were not adequately explained in the evidence, nor was the basis for her income. The defendants argued that the plaintiff's voluntary move to China for a significant period of time should not result in the defendants incurring a liability for her consequentially claimed loss of income. The defendants also argued that there were elements within the plaintiff's post-injury history which amounted to a failure on her part to mitigate her losses.
11. My earlier stated findings as to credit, fact, and mitigation, and my related findings identified earlier in these reasons do not support those criticisms to the full extent relied upon in the defendants' economic loss submissions.
12. At this point, it is instructive to refer to significant aspects of the medical evidence as to the plaintiff's past fitness or unfitness for work, where none of the medical witnesses supported the suggestion the plaintiff's earning capacity was totally destroyed by the effects of the two accidents.
13. In that regard, a survey of the unchallenged detail within the medical evidence and the related opinions identified and summarised between paragraphs [122] to [255] above persuades me that the plaintiff has suffered a relevant impairment to her earning capacity following the accident on 14 December 2014, and that this impairment was made significantly worse following the aftermath of the plaintiff's second accident, on 19 August 2016.
14. In my view those conclusions necessarily arise from the opinions of all the medical experts who examined the plaintiff to express opinions on the issue of her capacity for work.
15. In order to give effect to those findings, at this point it is convenient and also instructive to reprise elements those opinions in order to provide a rational basis for the damages assessment that must follow.

Dr Giblin's opinions on the plaintiff's work capacity

1. Dr Giblin was the first non-treating medical expert to assess the plaintiff. He first examined the plaintiff on 25 November 2015, which was 9 months before her second accident. He initially focussed on the plaintiff's injuries and related problems involving her cervical spine and left shoulder problems from the first accident. He considered that, as a consequence of the first accident, the plaintiff was unfit for work that involved excessive repetitive forward flexion of the cervical spine.
2. When Dr Giblin examined the plaintiff on the second occasion, namely on 24 May 2017, which was 9 months after the second accident, he expressed the opinion that the plaintiff was unfit for work that involved repetitive bending or heavy lifting.
3. When Dr Giblin examined the plaintiff on the third occasion, namely, on 21 March 2018, which was after she had the lumbar disc replacement surgery carried out by Dr Mobbs, he reiterated his earlier view, and added the observation that she was also restricted in her ability to lift weights, walk for more than a kilometre, or to sit or stand for more than half an hour at a time.
4. When Dr Giblin examined the plaintiff for the fourth time, namely on 19 July 2023, he noted that she still had minor neck discomfort and headaches and had continuing low back problems. He again reiterated his earlier opinions regarding the plaintiff's unfitness for work.

Conrad's opinions on the plaintiff's work capacity

1. When Dr Conrad examined the plaintiff on 14 December 2015, which was a year after the first accident, and 8 months prior to the second accident, he referred to the plaintiff's neck, left shoulder and left arm radiculopathy complaints which arose from that accident. He expressed the opinion that the plaintiff was unfit for overhead work, or work involving the lifting of weights of more than 5kgs, and she needed to commensurately curtail her computer work and curtail her work as a beautician down to between 10 to 20 hours per week, and that she should have the option of changing at will her posture from sitting or standing. In my view, that opinion, which remained unchallenged, bespeaks a significant impairment in the plaintiff's earning capacity.
2. On 15 February 2017, at Dr Conrad's second examination of the plaintiff, which was 2 months after the second accident, in the context of the plaintiff having ongoing neck pain and headaches, but resolved left shoulder problems, he reiterated his earlier recommendations that the plaintiff observe postural, lifting, work and domestic restrictions. At that examination he noted the effects of the second accident and the L4/L5 and L5/S1 disc protrusions, and related nerve root impingement to S1.
3. On 28 April 2018, at Dr Conrad's third examination of the plaintiff, in the context of continuation of neck pain and a deterioration of low back and radiated right leg pain symptoms, he noted the plaintiff's earlier work restrictions and identified her future prognosis as being guarded.
4. On 9 September 2020, at Dr Conrad's fourth examination of the plaintiff, he noted the continuation of her symptoms of neck stiffness and lumbar pain with radiculopathy, and he reiterated his earlier expressed guarded prognosis.

Dr Chen's opinions on the plaintiff's work capacity

1. On 28 June 2016, when Dr Chen examined the plaintiff 18 months after the first accident and 2 months before the second accident, she noted the plaintiff's neck and left shoulder strains had settled to a level where further remission was unlikely. At that time, expressed the qualified view that the plaintiff was able to continue with her usual work duties provided they were not too onerous for her. That was a significant qualification. That said, the plaintiff has not tested the range of her residual capacity for work.
2. On 12 February 2018, when Dr Chen re-examined the plaintiff, she gave the significantly qualified opinion that she considered the plaintiff was able to continue with the administrative tasks of her pre-accident employment. Significantly, Dr Chen further qualified her opinion on the plaintiff's work capacity by deferring her final opinion until a further radiological opinion had been obtained. In that regard, the defendants' expert evidence has been left in an incomplete and therefore less reliable state.

Conclusions on work capacity giving effect to earlier factual findings

1. Against the tenor of those medical opinions the plaintiff's own subjective assessment of her work capacity was that she simply could not work: T86.18. In my view, her subjective assessment should not prevail in circumstances where it has not been objectively tested and where her own assessment was contrary to the unchallenged body of medical opinion to the contrary, as identified in the preceding paragraphs.
2. Plainly, Dr Chen's opinion on the plaintiff's work capacity was left in an inconclusive state. The limited currency of Dr Chen's opinion was in my view, overtaken in time by the more recently updated opinions of Dr Giblin and Dr Conrad, whose opinions were not challenged. I accept those latter opinions as being more apt and indicative of the plaintiff's post-injury impaired work capacity.
3. That said, I observe that none of those impairment of earning capacity opinions support the submission that was made on behalf of the plaintiff to the effect that her earning capacity has been destroyed by reason of the cumulative effect of the two accidents.
4. The compelling conclusion from the evidence on this issue is that the plaintiff's past earning capacity has been restricted by the need to avoid the tasks, activities and postures identified in the cited opinions. Nevertheless, she has a significant residual earning capacity.
5. In the ensuing paragraphs the two identified elements of the plaintiff's claim for past economic loss are considered and determined.

Past loss of earnings capacity - 14 December 2014 to the end of 2016

1. As to the initial period of claim between 14 December 2014 and the end of 2016, which was when the beauty department in her husband's business ceased operating (T 46.44; T 59.44) the plaintiff continued to receive a salary from her husband's business. Initially, this was without alteration, and subsequently in that period, it seems to have reduced commensurately with the reduced level of work in that business due to Dr Chan's injuries. In that period in which the second accident occurred on 19 August 2016, she did some limited work in the Beauty Department of that business, which she acknowledged, and which was recorded in the various medical histories which followed the first accident.
2. In light of the fact that there is no explanatory evidence from the plaintiff's husband as to the actual basis of those payments to the plaintiff in that period, including whether those payments included a component of refundable sick leave, I conclude that although the plaintiff has work restrictions as identified by Dr Giblin and Dr Conrad, this indicated that she had a partially impaired earning capacity. I find that in this particular period, such incapacity did not result in the plaintiff incurring a relevant financial loss, or any loss of superannuation.
3. There was no evidence that whilst in the employ of her husband's business the plaintiff was being paid superannuation benefits.
4. After the first accident on 14 December 2014, the injuries incurred by Dr Chan himself resulted in a significant decline in his business, along with a commensurate decline in the clientele and work of the Beauty Department of that business.
5. Consequently, in that period in which Dr Chan's own work declined, ultimately, he was not able to continue to provide the plaintiff with employment and remuneration as he had done beforehand, noting that his employment of his wife in those circumstances had amounted to what I consider to have been sheltered employment where, since 14 December 2014, and until the end of the 2016 financial year, when the business ceased trading and paying salaries, she did not incur any actual loss of income despite having incurred a reduced work capacity and despite working restricted hours and performing restricted duties.

Past loss of earnings capacity -19 August 2016 to 27 July 2023

1. I find that after the plaintiff's second accident, in which she suffered significant trauma to her lower back, the impairment in her capacity to carry out the work tasks and maintain the postures required of her in her work with customers in the beauty department or in equivalent work, was even more substantially impaired, but not destroyed, as was submitted on her behalf.
2. That conclusion is supported by the history Dr Conrad obtained from the plaintiff when he examined her on 15 February 2017 and recorded that she had been working about 10 hours per week as a beautician some 6 months after the second accident which occurred on 19 August 2016.
3. Any assessment of past economic loss must give effect to the opinions of Dr Giblin and Dr Conrad, each of whom had in effect have identified in the plaintiff a residual capacity to perform restricted work duties for restricted hours. On the evidence, doing the best I can to be fair to the plaintiff and not unfair to the defendants, I consider that those opinions should equate to a residual earning capacity of about 35 per cent, with a guarded prognosis for improvement.
4. Those conclusions beg the question as to the basis upon which the assessment of this second period of claimed loss should be undertaken.
5. In my view, an assessment at the rate which is the net equivalent of $190,000 or $200,198 per annum seems inappropriate and unreasonably excessive because the plaintiff had been favourably employed in that position by her husband and that position no longer existed due to the slow down and the eventual closure of the business. Consequently, I accept the plaintiff's alternative quantification proposition, which involves an assessment based upon net average weekly earnings for this subsequent period.
6. On that approach, the rate of average weekly earnings have been agreed at $1,297 per week net. A loss of 65 per cent of that capacity is the equivalent of a loss of $843 per week net.
7. The period between 19 August 2016 and 26 July 2023 is the equivalent of 360 weeks.
8. For the reasons that follow, not all that period should be the subject of a monetary assessment for past economic loss.
9. In my view, a series of discounts must necessarily be identified and applied to the process as offsets to reflect, first, the contact restrictions in place which prevented work from continuing during the COVID pandemic, and secondly, the period of 176 weeks between 1 December 2019 and 24 April 2023 during which the plaintiff returned to live in China. The calculation of past economic loss should not apply to the period during which the plaintiff removed herself from this jurisdiction. This yields a discounted balance of 184 weeks for assessment.
10. On that approach, a loss of $843 per week over 184 weeks identifies a calculation in the amount of $155,112, but this amount requires an offset because the plaintiff arrived back in Australia on 24 April 2023 and she has not sought work from that time.
11. Accordingly, as the period between 24 April 2023 and the hearing on 27 July 2023 is 13 weeks, that period should be excised from the past economic loss calculation. The assessment should therefore be for 171 weeks. On that basis, the economic loss calculation should be in the reduced amount of $144,153, subject to a further discount, as follows.
12. On account of imponderable factors, I consider that the sum of $144,153 should be discounted to the rounded down sum of $125,000. An allowance for employer funded superannuation at 11 per cent ($13,750) should be added to this sum to yield the sum of $138,750.

Assessment of past loss of earning capacity

1. I assess the plaintiff's damages for past economic loss, including superannuation, in the amount of $138,750.

Future economic loss and superannuation thereupon

1. The plaintiff made an initial claim for future economic loss, including superannuation, in the amount of $2,226,529: Exhibit "A", Volume 1, p 35.
2. In written submissions made on 9 August 2023, the plaintiff's reduced claim for future economic loss was advanced on two bases, the first being $2,226,529, and the second being $1,106,439.
3. The first basis involved the projection of a claimed loss of $2,610 net per week over 35 years less a 15 per cent discount for vicissitudes plus an allowance of 14.49 percent for employer funded superannuation contributions.
4. In contrast, whilst the primary submission of the defendants was that no such damages should be allows, it was conceded that the evidence provided scope for a lump sum buffer assessment of between $200,000 and $300,000.
5. The difficulty for assessment of the plaintiff's future loss of earning capacity is that she is yet to test her residual earning capacity to ascertain its limits. In those circumstances, the best guide to assessment is found in the review of the unchallenged medical opinions on that subject, which has led to a finding of a loss of capacity at 65 percent.
6. At age 33 years, the plaintiff has a further 27 years of working life ahead of her to her intended retirement age of 60 years: T16.3 - T16.14. Adopting the measurement of loss of capacity of 65 percent of average weekly earnings as the correct rate for assessment as the salary previously paid by Dr Chan has ceased to be relevant, where the 27 year 5 percent multiplier is 783.0, the projection of a weekly loss of $843 yields the amount of $660,069 before appropriate discounts are applied.
7. In my view, the aggregate of a number of discounting factors should be applied, including some imponderables, which means the discount should be greater than the conventional 15 percent discount. These include the factor of the plaintiff's previous suicide attempt, and uncertainty over the plaintiff's future domicile in the longer term. In those circumstances, I consider the appropriate discount to be 40 percent.
8. In my view the uncertainty of the plaintiff's future domicile should preclude any allowance for the loss of employer funded superannuation contributions in respect of the claim for future economic loss.
9. On that approach to assessment, in round figures, when the sum of $660,069 is discounted by 40 per cent, this yields the rounded sum of $396,000.
10. I assess the plaintiff's damages for future economic loss, including superannuation, in the amount of $396,000.

Past domestic assistance

1. Initially, the plaintiff made a claim for past domestic assistance in the amount of $141,320: Exhibit "A", Volume 1, p14. That claim, comprised seven elaborate elements of calculation from the time of the first accident to date. The calculation was later increased to $151,190: Exhibit "A", Volume 1, p36.
2. In subsequent written submissions delivered on 9 August 2023, the plaintiff's claim for past domestic assistance, which, based on the same seven elements, was reduced to $78,260.
3. In contrast, the defendants submitted that the evidence disclosed that the plaintiff required no additional care to that which she was receiving prior to the first accident. The defendants further submitted that nothing had resulted from the second accident which changed that position.
4. The defendants supported that submission by pointing to the history obtained from the plaintiff by Dr Chen which confirmed that she had continued to be able to do her domestic chores after the accidents: Exhibiit "A", Volume 1, p 219.
5. Whilst the defendants submitted that, because of the analysis proffered above, no monetary allowance should be made for past or future domestic assistance, the past and future components of the care claims must nevertheless be considered separately.
6. The defendant's submissions criticising the plaintiff's claim for damages for past domestic assistance were also founded upon inconsistencies to be found in the evidence of the plaintiff.
7. The primary inconsistency was revealed when the plaintiff was cross-examined upon the content of paragraph 110 of her first evidentiary statement (Exhibit "A", Volume 1, p 131), which created the impression that domestic assistance had been engaged because of the deleterious effects of her injuries on her ability to carry out domestic tasks.
8. That impression was traduced in the cross-examination of the plaintiff, where she agreed that a nanny who also did housework was employed before her first accident: T21.31; T22.46; T78.13 - T78.30.
9. In light of that evidence, I found myself unable to accept the plaintiff's evidence to the effect that she had been carrying out about 3 hours of housework per day prior to the injuries she sustained in the first accident: T18.49; T19.17.
10. The plaintiff's claim for damages for domestic assistance after her second accident was also the subject of similar confusion within her evidence. A further complication arose from the fact that the family spent time in Shanghai between December 2019 and April 2023.
11. I accept the submissions of the defendants to the effect that the plaintiff gave unreliable evidence on the issue of her claimed need for post-accident domestic assistance from either of the two accidents which are the subject of this litigation. I do not regard Dr Chan's evidence in his statement to be a reliable source for the corroboration of the plaintiff's evidence for this element of her claim because the basis of his knowledge for that evidence as not been satisfactorily demonstrated.
12. For the reasons that will be identified in the consideration of the plaintiff's claim for future domestic assistance it is beyond controversy that the medical opinions estimating the extent of the need for such assistance cannot be considered as being determinative of the issue.
13. Accordingly, I decline to assess any damages in respect of the plaintiff's claim for the value of past domestic assistance.

Future domestic assistance

1. The plaintiff made an initial claim for future domestic assistance in the amount of $146,118 after discount for vicissitudes. That claim was based on the projected assumption of 6 hours per week of assistance provided gratuitously, costed at $35 per hour, or alternatively, 4 hours of commercial assistance per week at $40 per hour: Exhibit "A', Volume 1, p 36.
2. In written submissions delivered on 9 August 2023, the plaintiff's claim for future domestic assistance was quantified in the reduced projected mount of $56,056. That amount was on the assumed basis of a projected need for 2 hours per week of domestic assistance per week at a commercial cost of $40 per hour discounted for potential adverse vicissitudes.
3. In contrast, and consistent with the defendants' approach to the plaintiff's claim for damages for past domestic assistance, the defendants maintained their submission that no damages should be awarded for future domestic assistance.
4. The present factual context for that claim is that the plaintiff and her 9 year old daughter presently live in a 3-bedroom rented apartment in Darling Point in Sydney. Her own mother in Shanghai pay the rent. She has lived in that apartment with her daughter since April 2023 so that her daughter can obtain an education at a nearby private school, which she prefers to the education that her daughter was receiving in China, particularly as her daughter is an Australian citizen and because she experienced some personal difficulties when she was being schooled in China.
5. Those living arrangements are in the context where the plaintiff's husband Dr Chan continues to live in Shanghai and is therefore unavailable to assist with the domestic tasks. Those circumstances appear to be the current and indefinite family plan: T11.50.
6. In the circumstances, the plaintiff said that in view of her disabilities, friends come to her home three times per week to assist her with her household tasks: Exhibit "A", Volume 1, p 93.
7. The plaintiff's evidence was not particularly descriptive of the housework tasks she was no longer able to carry out because of the effects of the two accidents in which she sustained injury. The friends who provide her with the assistance she claims to have received were not called to give evidence of the tasks they performed for her.
8. Given the credibility and reliability concerns that arose from the evidence of the plaintiff, it is instructive to refer to the medical opinions which deal with such matters.
9. Dr Chen's opinions on the issue of domestic assistance were of limited utility in resolving this issue because her overall opinion on the plaintiff's condition was tentative and inconclusive, as has already been observed.
10. On 9 September 2020, Dr Conrad gave the unchallenged opinion that the plaintiff should not lift weights of between 2 and 5kgs and should not engage in repetitive lifting or bending, which seem to be activities within a range of commonplace domestic tasks. In view of those restrictions, he expressed the view that the plaintiff might need some 6 hours per week of household and childcare assistance in the home: exhibit "A', Volume 1, p 87. At this point it should be noted that the cost of childcare is outside the scope of the plaintiff's claim for damages.
11. On 19 July 2023, Dr Giblin noted the plaintiff's account of domestic assistance being provided by her friends regarding household activities such as vacuuming, mopping, cleaning the bathroom, and making the beds. On that issue, the plaintiff's solicitor specifically asked Dr Giblin whether the plaintiff's disabilities would restrict her with any of the activities of daily living, or any household tasks. Properly, Dr Giblin responded to that question with the suggestion that the question would be best addressed by an Occupational Therapist: Exhibit "A", Volume 1, p 93; p 94.
12. Opinions on the question of time quantification of an injury-related need for domestic assistance is a matter that requires expertise. In this case, whilst Dr Conrad and Dr Giblin are undoubtedly qualified to express medical opinions on the advisability or otherwise of the plaintiff performing certain physical tasks, there is no reliable evidence to suggest that either of those experts are suitably qualified to provide opinions as to the reasonable time estimates for performing specific household tasks.
13. Impermissible guesswork should not replace reasoned and suitably qualified expert evidence on such questions: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [92(b)]: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [93].
14. In cases such as this, where the state of evidence does not permit a reasoned non-speculative quantification of a claimed and otherwise justifiable need for domestic assistance, the allowance of an economic "cushion" is appropriate: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [100].
15. In this case, the foregoing approach is justified because the above-cited medical opinions have identified certain physical tasks that are contra-indicated for the plaintiff, such as lifting and bending, which are within a foreseeable range of domestic activities, such as when moving furniture, presumably during spring cleaning. In my view, to meet that need, the plaintiff should be compensated in a broad-brush manner for several hours of annual paid assistance over her remaining statistical life span of approximately 53 years, but significantly discounted for the possible impact of imponderables such as the plaintiff's long term domicile, and potential adverse vicissitudes.
16. In that regard, doing the best I can to be fair to the plaintiff and not unfair to the defendants, I consider an appropriate buffer or cushion to allow for such damages in the sum of $10,000.
17. I therefore assess the plaintiff's damages for future domestic assistance in the buffer amount of $10,000.

Future out-of-pocket expenses

1. The plaintiff initially made a claim for future out-of-pocket expenses in the sum of $81,672: That claim was based on a lifetime projection of an assumed recurrent treatment cost of $58 per week ($46,122) plus an estimated deferred cost of $35,550 for future surgical treatment: Exhibit "A", Volume 1, p 32; p 51.
2. In written submissions on behalf of the plaintiff on 9 August 2023, her claim for future out-of-pocket expenses was identified in the reduced amount of $46,122, thereby abandoning the earlier claim for future surgical treatment.
3. The defendants' submissions did not address this head of damage, presumably on the basis that it was for the plaintiff to prove this component of her claim.
4. In light of the vagueness and lack of explanatory detail in the plaintiff's evidence as to her post-surgical treatment and the costs associated with that treatment, I find her evidence alone to be an unreliable and unsatisfactory source for defining and costing her post-accident future treatment needs.
5. In my assessment of the evidence, insight into the plaintiff's likely future treatment costs is most reliably discerned from a review of the medical reports which post-dated her spinal surgery on 5 July 2019 for discectomy and L5/S1 disc replacement. That review now follows.
6. The post-operative reports of the plaintiff's treating neurosurgeon, Dr Mobbs are not definitive on the issue of the plaintiff's future treatment needs. This is because his initial post operative reviews charted the plaintiff's progress but did not define her future treatment needs.
7. The last report from Dr Mobbs is dated 2 October 2019. That report referred to a proposed "catch up" consultation in six months in the context of proposed fresh radiological studies. Dr Mobbs ended his report by stating that "it is fantastic news that she is doing so well". He copied that report to an entity referred to and described as Elite Spinal Physio and Pilates in Bondi Junction: Exhibit "A", Volume 1, pp 785-786.
8. Ultimately, it transpired that the plaintiff did not pursue that referral because she was in China, hence the absence of a report from that entity.
9. In reviewing the range of possible injury-related treatments the plaintiff is likely to have in the future, it seems that the plaintiff has already had the assistance of specialists in pain management. Therefore, absent specific supporting evidence of an ongoing need for that element of management, I do not propose to make any specific allowance for treatment at a pain management centre.
10. There was no recent report from Dr Mobbs following the foreshadowed "catch up" consultation. The state of the evidence of Dr Mobbs is relatively neutral on the issue of future treatment, with the exception that it may be inferred from the fact he sent a copy of his report to Elite Spinal Physiotherapy and Pilates that he intended the plaintiff should have therapy from that entity, at least in the short term, but in view of the time lapse since that recommendation, absent supporting evidence, it seems that recommendation is no longer current.
11. The post-surgical report of Dr Conrad dated 9 September 2020 suggested that the plaintiff needs conservative treatment comprising physiotherapy and medication, and possibly massage therapy: Exhibit "A", Volume 1, p 87.
12. The post-surgical report of Dr Giblin dated 19 July 2023 stated that no further surgical treatment was anticipated. He did not see the need for the plaintiff to have regular physiotherapy but expected it would be needed once per year involving 4 to 6 treatments on those occasions. He thought she would need to see her general practitioner monthly, presumably for the prescription medications which the plaintiff described in her evidence: Exhibit "A", Volume 1, p 94.
13. I do not consider the reports of Dr Chen to be reliably informative on the question of the plaintiff's likely future treatment needs because her final opinion on causation of the plaintiff's back complaints was left inconclusive.
14. The court book contains a Medicare schedule of payments made for the plaintiff's past treatment totalling $5,537.70. That amount is more than the submitted claim for past out-of-pocket expenses: Exhibit "A", Volume 2, pp 1283 - 1300. In my view, in this case, that record of past payments for treatment does not form a reliable guide to assessing the likely cost of the plaintiff's future treatment needs.
15. Drawing upon those sources of evidence, I am left without useful assistance to assess the plaintiff's entitlement to damages for future treatment.
16. The plaintiff's Medicare schedule does not identify the cost of a consultation with a general practitioner. It seems this is so because, unusually, the plaintiff's husband was noted as being her referring practitioner.
17. The plaintiff is now aged 33 years. She has a submitted estimated statistical median life span of approximately 53 years, which attracts the 5 per cent multiplier of 988.9.
18. Notwithstanding the lack of evidence as to the components of cost the plaintiff is likely to incur in the future, fairness requires that I do the best I can to make a reasonable lump sum buffer allowance for such costs to reflect the evidence of her future needs without undue speculation.
19. In taking that approach, recognising the complexity of the plaintiff's ongoing complaints, it is likely she would need non-standard consultations with a general practitioner which estimate would involve a cost of the order of $75 per consultation. This is the equivalent of $ 900 per annum or $17.30 per week.
20. Taking a similar broad-brush approach to the cost of the several medications the plaintiff takes, I estimate this would incur a likely cost of about $60 per month. This is the equivalent of $720 per annum or $13.84 per week.
21. Taking a similar broad-brush approach to the cost of annual 6 physiotherapy sessions per annum at an estimated cost of $100 per session, his is the equivalent of $600 per annum or $11.53 per week.
22. The total of these elements is $42.67. The projection of that sum at 5 percent over 53 years (988.9) less 15 percent for vicissitudes yields the sum of $35,866.
23. As the plaintiff has and spinal surgery and progress imaging, I consider it would be reasonable to add allowances for intermittent specialist consultations for review of the stability of the device implanted in her spine, including occasional imaging to check on the position of her prosthetic disc spacer, and pain management assistance. The state of the evidence does not permit a rational assessment of the likely cost of therapies the plaintiff may require in the future.
24. Having regard to those imponderable factors, including taking into account the possibility that the plaintiff may not fully or at all pursue the recommended treatments, and questions of future domicile which would affect costings, and taking a necessarily broad brush approach that is both fair to the plaintiff and not unfair to the defendants, doing the best I can on the state of the evidence, I propose to allow a discounted and rounded down buffer amount to cover unquantifiable possible future treatment expenses in the sum of $25,000.

Past out-of-pocket expenses

1. The plaintiff initially made a claim for past out-of-pocket expenses in the sum of $39,387, $5,537 of which was documented in a Notice of Charge issued by Medicare.
2. On 27 July 2023, at the conclusion of the evidence in the plaintiff's case, the absence of an agreement on the quantum of past out-of-pocket expense was drawn to the attention of counsel. This was in circumstances where, on medical advice, the plaintiff gave evidence of having had massage therapy over an extended period, both in Australia and in China.
3. On 15 August 2023, on resumption of the hearing for the purpose of submissions, no further evidence was called, or agreements announced on that issue. Ultimately, the plaintiff's written submissions filed on 9 August 2023, the plaintiff's claim for past our-of-pocket expenses was identified in the undifferentiated amount of $5,438.
4. That submission claim did not sit well with the plaintiff's evidence that she had been paying for ongoing medically advised massage treatment of her post-accident problems over a considerable period. It is not clear as to whether that treatment related only to the massage therapy provided by Mr Hughes: Exhibit "C". Since there was no evidence as to the frequency and cost of those treatments, this element of the claim must be limited to what has been proven or conceded.
5. The defendant's written submissions filed on 9 August 2023, at paragraph 163, foreshadowed that the plaintiff's treatments expenses would be dealt with in oral submissions. On the state of the evidence and the limited extent of the claim as described above, understandably, no further submissions on this issue were made on behalf of the defendants.
6. On 29 August 2023, when the hearing resumed for further submissions, the defendants accepted that the plaintiff's out-of-pocket expenses were the $5,437 that was claimed, plus the sum of $1,085 paid by the CTP insurer as shown in Exhibit "C". The total of those amounts is $6,522, for which the defendants are entitled to a credit of $1085: s 83 of the MAC Act.
7. Accordingly, I assess the plaintiff's damages for past out-of-pocket expenses in the amount of $6,522.

Summary of damages assessment

1. In summary, my damages assessment is as follows: Heads of damages Assessment (a) Past economic loss and related superannuation $138,750 (b) Future economic loss and related superannuation $396,000 (c) Past domestic assistance Nil (d) Future domestic assistance $10,000 (e) Future out-of-pocket expenses $25,000 (f) Past out-of-pocket expenses $6,522 Total $576,272

Disposition

1. The plaintiff has established her entitlement to a verdict in the amount of $576,272 and a judgment in the amount of $575,187 after allowing a credit to the defendant of $1,085.

Costs

1. The plaintiff has succeeded in her claim against the defendants. It follows that the defendants should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

1. I make the following orders: 1. Verdict for the plaintiff in the sum of $576,272; 2. Judgment for the plaintiff in the sum of $575,187; 3. The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order; 4. Liberty to apply on 7 days' notice if further or other orders are required; 5. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2023