Brenner v Holdom [2011] ACTSC 123

Supreme Court of the ACT|2011-08-12

1. judgment be entered for the plaintiff in the sum of $145,162.85.

1. The plaintiff was born in 1986 and is now twenty-five years of age. She is divorced with a daughter aged almost four. Her claim is for personal injury resulting from a motor vehicle collision on 24 January 2006. At about 8:30 am on that day, she was driving her car to work from her home at Isabella Plains when it was struck from behind by a car driven by the defendant. Liability is admitted.

2. The plaintiff grew up and went to school in Canberra. She completed Year 12 in 2003. After working for about eighteen months as a waitress, she found employment as a trainee with the ACT Department of Territory and Municipal Services. By the time of the accident she was nineteen years old and living with the man she later married and divorced. She was working full time.

3. The plaintiff had been involved in two earlier motor vehicle collisions, one in 2002 and the other in 2003. She suffered minor injuries in the earlier of the two, from which I accept she had fully recovered within a short time. She was not injured in the 2003 accident.

4. The plaintiff had been a keen hockey player from the age of four. Her mother and sisters also played, and her friends were all hockey players, forming the basis of her social life.

5. Immediately after the collision in January 2006, the plaintiff exchanged details with the other driver. Her car was still driveable. Rather than continuing to work, she drove home and had a cup of tea and talked to her partner.

6. The plaintiff's recollection was that she was looking to her left when struck. She was jerked forward by the impact. She described herself as feeling 'shocked', or 'in shock'. At about 10:00 am she decided to go to work, and drove there. She told her supervisor what had happened, and at the supervisor's request completed an incident report, made an appointment to see her doctor, and went home. She was beginning to feel stiff in the neck, upper back and lower back, and had a headache. The symptoms came on not long after she arrived at work. The incident report form included a question "which body parts were affected?" with some twenty-four boxes available to tick. The plaintiff ticked the box marked "elbow". Asked to describe the injury she wrote "stiff sore right elbow, stiff and sore neck, headache, shock".

7. Her usual general practitioner, Dr Lee, was unavailable but she was able to see another doctor in the same practice, Dr Barbara Tyler, shortly after 5:00 pm on the day of the accident. Dr Tyler's notes read "This a.m. hit from behind - was ok initially - now elbow aches and headache, pain R neck, buttocks ache. Examination: tender base R skull, sacrum and lat epicond R - full ROM elbow neck and back but all mvt slow and stiff - no bruising - soft tissue inj." Dr Tyler gave the plaintiff a certificate for the next day off work and advised her to take paracetamol and rest at home.

8. Although by the time she gave her evidence, and indeed much earlier when she saw doctors for the purposes of the case, the plaintiff did not focus on any injury to the right elbow, I am satisfied from the incident report form and Dr Tyler's notes that there was an injury to the right elbow, and that the plaintiff was aware of this before her neck and back symptoms had fully developed.

9. When the plaintiff woke the next day her neck and back were very stiff. She found it difficult to lift her head off the pillow. Her partner had to help her out of bed, and help her to get dressed. She was unable to lift her arms above her head. She was however able to return to work after a day off. On the following Monday, 30 January 2006, she completed a Comcare claim form. Later on that day she went back to see Dr Tyler who noted continuing aching in the neck and left scapular area, and constant headaches. On examination the plaintiff was tender in the trapezius muscle area on both sides, with restriction of movement in the neck and left shoulder. She also noted "R elbow locks, now full mvt".

10. The plaintiff's evidence was that during the week after the accident she had pain from the base of her head down to the middle of her back, and found it hard to rotate her head. She had pain in the right arm and in the lower back, and headaches. Her symptoms increased during the working day, and she often stopped to rest and to use heat packs. She took paracetamol. She found it hard to concentrate towards the end of the day. Her work involved her sitting at her desk, looking down at files and entering data on a computer. Her superiors at work were tolerant and supportive, and encouraged breaks to get up and stretch and walk around.

11. At home the plaintiff was heavily reliant on her partner. He helped her to get dressed and undressed, and to wash her hair under the shower. During that first week he attended to cooking, washing and cleaning the house, tasks which the plaintiff normally looked after. The plaintiff found it difficult leaning into the washing machine to get the clothes out, and difficult carrying a basket of washing. Her right arm felt very weak.

12. This pattern continued as time went by. The plaintiff did not have time off work, other than for treatments such as physiotherapy, but was exhausted by the end of the day. When she got home she was in pain and wanted to do nothing except sleep.

13. Initially her partner was supportive but difficulties arose in the relationship. The plaintiff lost interest in sex, and arguments developed when she asked her partner to do something for her. She had difficulty getting comfortable in bed and sleeping. The plaintiff's relationship with her partner, both emotional and physical, never returned to the way it had been before the accident.

14. In June 2006 Dr Tyler referred the plaintiff to Dr Garth Eaton, a pain management specialist. He referred her to the Canberra Injury Management Centre, where she undertook a pain management course during July 2006, involving physiotherapy, gym and psychology sessions. The program involved attendance twice a week for about six months. By the end of it she found herself better able to manage pain, but otherwise the course was not of much benefit from her perspective.

15. The plaintiff was provided with additional equipment at work to make things easier for her, and had help from colleagues in heavy carrying and similar tasks.

16. In September 2006 the plaintiff was transferred to the ACT Department of Education and Training as a payroll officer. She was initially on probation, becoming a permanent public servant from February 2007. Soon after that she became pregnant. In June 2007 she was promoted from ASO3 to ASO4.

17. In July 2007 Dr Eaton wrote a report to the plaintiff's then solicitors. In his opinion the plaintiff had suffered an acceleration-deceleration whiplash injury to the cervical spine resulting in bilateral neurogenic cervico-brachial pain syndrome, with probable initial musculo-ligamentous strain and possible persistent cervical facet joint pain. He thought that she would continue to improve and should eventually recover completely, though she should always work at an ergonomically correct workstation, take regular breaks for stretches and exercises, and maintain a good seating posture.

18. In August 2007 the plaintiff took maternity leave for twelve months. Her daughter was born at the beginning of October 2007.

19. In March 2008, during her leave period, she married her partner. She returned to work the following month.

20. She found difficulty in nursing and carrying her baby, and frequently had help from her partner or his mother or one of her sisters or her own mother in bathing and dressing the little girl. Her pain had decreased somewhat during maternity leave, but returned to its previous intensity during the first week after her return to work. She was working with large files and was exhausted towards the end of the working day. She continued to have difficulty with domestic tasks. The baby made more work for her and her husband, and their relationship became very strained. Her husband was working on varying shifts at a loading dock at Parliament House. After her return to work, the baby immediately went into fulltime child care.

21. At the end of April 2008 the plaintiff saw Dr Graeme Griffith, a consultant surgeon, for a report for her case. She continued to complain of pain and restriction of movement in the neck which Dr Griffith attributed to muscle spasm. She had headaches which he said were proportional in intensity to the cervical symptoms. She still had periodical locking of the right elbow and numbness in the fingers of the right hand. There was a minimal diffuse ache in the paravertebral lumbar muscles, aggravated by prolonged sitting and to a lesser extent by standing, bending and lifting. She was not coping well psychologically, and Dr Griffith thought she exhibited typical manifestations of a chronic adjustment disorder, with a depressive pattern of sleep disturbance, lethargy and tiredness, social withdrawal and irascibility. Physical examination was consistent with the symptoms complained of, which Dr Griffith saw as resulting from the motor accident. She had continuing neck and upper back symptoms resulting from musculo-ligamentous strain at the time of the impact, and, to a much lesser extent, low back symptoms from the same cause. There were persistent symptoms in the right forearm and distribution of the ulnar nerve resulting from an impact injury to the right forearm, and a chronic adjustment disorder with elements of depression and anxiety.

22. Dr Griffith thought that the plaintiff should ultimately recover, but would require further treatment. He recommended injections of local anaesthetic to the lumbar region, a more effective painkiller combined with a tricyclic antidepressant to help with sleep, a program of exercises and stretches, and perhaps ultimately a stronger antidepressant.

23. Dr McGrath saw the plaintiff again in May 2008. He thought that she needed a further regime of treatment through a series of movements to be practised on a regular basis. He expressed concern that Comcare might not provide further funding for treatment, noting that previous physiotherapy and rehabilitation had been a total failure.

24. Dr McGrath saw the plaintiff again a month later, noting that she had had a bad couple of weeks, no doubt through work demands interacting with her unresolved impairment. He gave her movements and exercises to perform regularly throughout the day and night, in the hope that this would break up her stress pattern within the shoulder girdle. When he next saw her in July 2008, he recommended that she go to the sickroom at work as many times as she could during the day to do exercises, which should improve her by the end of the working day. He noted that she was finding her work environment stressful, and that it got worse as the day proceeded. He said that he was happy with her progress.

25. In September 2008 the plaintiff left the ACT Public Service and started employment with Medicare, a Commonwealth instrumentality, as an executive assistant, still at the ASO4 level.

26. In February 2009 she separated from her husband. She moved in with her elder sister for about three months, after which she shared a house with a friend, another young mother she had met through childcare, for about a year. In August 2009 she moved from Medicare to Centrelink, still at the same level.

27. Her solicitors sent her to Dr Ron Brooder, Neurologist, in December 2009. Dr Brooder detected a slight impairment in the full range of movement of the neck in all directions, particularly rotation. Movement was limited by increasing pain at the extremes. There was some local tenderness. The plaintiff complained of a constant variable dull aching pain in the inter-scapular region on both sides, worse on the right. There was also a constant but variable ache accompanied by stiffness in the lower cervical region, extending into both the trapezius muscles. She complained of headaches with occurred several times a week, some of which developed in a persistent throbbing pain associated with visual blurring. She also had intermittent but daily pain in the right elbow and forearm, sometimes accompanied by tingling in the fingers. Pain often disturbed her sleep. Her symptoms had persisted over a period of almost four years since the car accident, notwithstanding a prolonged course of conservative treatment including physiotherapy, a pain management program, and medication. She had been able to continue with full-time work as a public servant but was restricted in day-to-day activities and had been unable to return to hockey.

28. Dr Brooder attributed all of these complaints to the motor accident. The plaintiff's symptoms had been aggravated during and following her pregnancy in 2007. Dr Brooder thought that the symptoms were likely to be related to the residual effects of a predominantly right-sided musculo-ligamentous injury involving the support structures of the plaintiff's mid-thoracic and lower cervical spine, and particular the ligamentous support of the facet joints, associated with secondary muscle spasm. The right elbow pain was consistent with a soft-tissue or ligamentous injury in the region of the right elbow. The symptoms were suggestive of irritation or slight entrapment of the right ulnar nerve at the elbow.

29. Dr Brooder thought that the long-term prognosis was "somewhat guarded". He accepted that her symptoms had remained essentially unchanged despite conservative treatment, and thought it likely that she would be subject to persistent symptoms and a degree of disability indefinitely. She might benefit from further physiotherapy and a regular gym-based exercise program. On his recommendation, MRI scans of the cervical spine and thoracic spine were carried out. They showed minor irregularities at T4-5 and T5-6, including a left small annular tear at T5-6, but that this was not causing significant spinal canal stenosis or compression of the nerve root.

30. In the early part of 2010 the plaintiff underwent further physiotherapy. Her role at work changed in March-April 2010 to IT Procurement with Centrelink, and a promotion to ASO5.

31. In June 2010 the plaintiff's solicitors sent her for assessment to Dr Tom Sutton, a neuropsychologist. He conducted psychometric testing. This excluded any malingering or exaggeration of symptoms, or of emotional consequences of the plaintiff's claim. He diagnosed symptoms of depression consistent with the pain but insufficient to amount to a major depressive disorder. Her presentation was consistent with an unspecified adjustment disorder. The psychological approach to her pain management was overall excellent. Dr Sutton thought that she would benefit from relaxation massage therapy. She should re-engage in physical activity pursuits but at her own pace. He thought that her pain condition had probably contributed to, though it had not been the sole cause of, the breakup of her marriage.

32. In July 2010 the plaintiff moved in to live with her father and stepmother for four months, leaving in November 2010 to live in a townhouse with her younger sister. By the time of the hearing her sister had moved out and the plaintiff was living in the townhouse alone with her daughter.

33. Dr Brooder reviewed the plaintiff just before the hearing, with the benefit of the MRI results. He thought that the motor accident had aggravated underlying irregularities at T4-5 and T5-6 causing some symptoms. The annular tear was probably caused by the impact. The MRI findings confirmed his opinion that the plaintiff would remain subject to symptoms and a degree of disability indefinitely. He remained of the view that she would benefit from further physiotherapy and a gym-based exercise program under the supervision of a physiotherapist. He thought that she would also benefit from counselling by a psychologist.

34. Dr Griffith also reviewed the plaintiff shortly before the hearing. He adhered to his earlier opinion that the plaintiff suffered significant injury at the time of the motor accident, and remained symptomatic. He thought that the plaintiff's low back symptoms and sciatica, precipitated by an episode of lifting her child out of the bath in November 2009, were unrelated to the car accident. He thought that the lifting incident had probably caused a lower lumbar disk lesion. He remained of the view that the right elbow symptoms were principally related to the right ulnar nerve and caused by the car accident. There was a suggestion of carpal tunnel syndrome which required further investigation. Dr Griffith thought that the plaintiff was still suffering from what had become a chronic adjustment disorder with elements of depression and anxiety, which had not been treated. Whilst conceding that he was not a psychiatrist, he disagreed with an opinion expressed by one of the defendant's doctors that the plaintiff was not suffering any significant psychological sequelae of the car accident. He thought the finding inconsistent with the plaintiff's specific complaints in relation to the effects of the psychological symptoms upon her, involving all aspects of her lifestyle and physical activities. He thought that the plaintiff should be taking a stronger dose of Lyrica, a medication she had been taking in small doses, which he thought should have a dramatic effect on her neuropathic pain state. He repeated his recommendation about injection of local anaesthetic and steroid to the paravertebral musculature at the sites of the trigger points readily identified, to desensitise the trigger points and interrupt the pain reflect arcs mediated by the spinal cord by removing the sites of sensitivity in the muscle. He said that this form of treatment was usually very effective and could be carried out by a sports physician or a general practitioner with appropriate experience.

35. The plaintiff's mother gave evidence corroborative of her daughter's case, including some evidence as to estimates of time she had spent carrying out domestic tasks for her daughter, looking after her daughter and granddaughter and generally helping out. The evidence of the plaintiff herself, and of her mother, about the time taken to carry out these tasks out was necessarily imprecise and based on imperfect recollection. There is no suggestion that either of them kept any written record of the time spent on any particular task, which would hardly be expected in the circumstances.

36. The plaintiff was seen by three medical practitioners for the purpose of reports to the solicitors for the defendant. Dr Virginia Pascall is an occupational physician and saw the plaintiff in Sydney in July 2009 and again two months before the hearing. Counsel for the plaintiff objects to the admission of Dr Pascall's second report because it was served only on the second working day before the commencement of the hearing. Dr Pascall saw the plaintiff for the second report on 10 June 2011 but her report was not prepared until 14 July 2011. The report runs to nineteen pages and I do not suggest in that regard any criticism of Dr Pascall. However, the defendant's solicitors did not receive the report until 20 July 2011 and did not serve it on the plaintiff's solicitors until Friday 28 July 2011, with the hearing listed for the following Tuesday, 2 August 2011.

37. Rule 1241 of the Court Procedures Rules 2006 provides that the plaintiff must serve copies of expert reports twenty-eight days before the filing of the certificate of readiness, which in this case was filed in September 2010. The defendant must serve reports within fourteen days of being served with the plaintiff's reports. If a party obtains an expert report thereafter, which is either responsive to a report served by the other side, or updates an earlier report which has been served, that report must be served within three days of the party receiving it. Expert reports which have not been served in accordance with this regime are inadmissible except by agreement of the parties or leave of the court. In the absence of agreement the court may not grant leave in the absence of exceptional circumstances, unless the first report does no more than update an earlier served report.

38. In the case of a nineteen-page report, the rule might appear harsh. Counsel for the plaintiff made it clear that the objection was based on the fact that Dr Pascall's second report had been served too close to the hearing to afford an opportunity for the plaintiff's solicitors to put it to their own doctors for comment, placing the plaintiff in an unfair position. The plaintiff would not have objected merely because of non-compliance with the three-day time limit provided that the report had been served in sufficient time before trial. Counsel for the plaintiff also made it clear that only those parts of the report containing fresh material or fresh opinion were the subject of the objection, not the parts of the report which did no more than update the earlier report.

39. In her first report, Dr Pascall generally accepted the plaintiff as genuine. She said that the plaintiff had "a lot of postural static overloading of the muscles of the upper body and neck". She said that this probably pre-dated the car accident to some degree and was likely to have been a consequence of the plaintiff's sedentary work. It would have increased her vulnerability to the effects of a low-grade whiplash disorder.

40. Dr Pascall disagreed with Dr Griffith about the cause of the numbness and tingling in the right hand. She thought that the symptoms were consistent with ulnar nerve irritation but ruled this out because she did not think that an injury to the right elbow could have occurred in the accident. She thought it more likely that the symptoms were a consequence of muscular tightness and pressure on the C8 nerves at the brachial plexus in the neck. It is probably unnecessary for me to resolve this difference of opinion, because Dr Pascall does not suggest that her explanation is unrelated to the car accident. I have the impression that she sees the symptoms as an indirect result of the accident.

41. Dr Pascall also seemed to be in some doubt about the precise cause of the plaintiff's right elbow symptoms, but again her suggested explanations are consistent with the damage having been done in the car accident, which I think is an inevitable conclusion when one takes account of the plaintiff's complaint on the day of the accident of injury to the right elbow as the first injury to be mentioned in her notification form.

42. Dr Pascall regarded all of the plaintiff's disabilities as related to the car accident other than the low back symptoms, which she attributed to the pregnancy. She saw the plaintiff first prior to the bath lifting incident, but I think taking into account the opinions of Dr Griffith and Dr Pascall, I must come to the view that any lower back injury which the plaintiff suffered at the time of the car accident cleared up within a few months, and that low back symptoms thereafter, such as they were, were pregnancy-related until the lifting incident, which caused a fresh and much more serious injury to the low back.

43. Dr Pascall noted the impact of the plaintiff's inability to resume playing hockey. She thought on balance that the plaintiff's hockey-playing days were over, and that this was triggered by the accident. This led indirectly to a substantial change in the plaintiff's social network, and to her feeling disenfranchised from her hockey friends. She did not seem to have taken up a different group of social relationships though she would now do so in the future as a social network developed, perhaps with other mothers with young children.

44. Dr Pascall was concerned that the plaintiff's unsatisfactory posture was inhibiting improvement. If she had been able to adopt better posture whilst sitting at her computer, this might have shortened the recovery process. Dr Pascall noted that there had been comments in reports from soon after the accident about the plaintiff's poor posture and its correction. She thought that if it could not be improved the symptoms were likely to continue. It was important for the plaintiff to alter her shoulder and neck posture every half hour and "bring it back to a more physiological alignment instead of the slouched, poke-necked, pronated shoulder positioning" displayed by the plaintiff at the time.

45. As to the low back, Dr Pascall thought that the plaintiff would probably benefit from Pilates exercises. She accepted that the plaintiff might benefit from injections as proposed by Dr Griffith, but did not regard the lower back problems as accident-related.

46. Dr Pascall thought that there would be some benefit in the plaintiff having one or two guided sessions in front of a mirror with a physiotherapist who specialised in musculoskeletal problems. Such visual feedback should help the plaintiff with the correct exercises, overriding the initial feelings of discomfort, even pain, in adopting the correct posture. Apart from that, Dr Pascall thought that the plaintiff might benefit from life counselling to deal with the many and significant life events of the previous few years, the motor accident and injuries being a part of that.

47. Dr Pascall concluded that the plaintiff's prognosis remained guarded, that is without expectation of improvement, not so much because the injury was particularly severe or damaging, but more because correcting the problems which contributed to the experience of pain appeared recalcitrant. Generally, Dr Pascall had no disagreement with Dr Griffith. However, she did not agree with him that the plaintiff was suffering from a chronic adjustment disorder, even partially, due to the accident, by the time she saw the plaintiff, although she agreed that there was a reasonable basis for that conclusion in the past. A psychiatrist would be needed to resolve the issue.

48. For the purpose of the second report, Dr Pascall spent ninety minutes with the plaintiff on 10 June 2011. The plaintiff's objection to the report relates to Dr Pascall's expression of opinion about her low back symptoms and the relevance of the 2009 baby-lifting incident, and opinions expressed by Dr Pascall about the plaintiff's need for assistance with, or the provision of, domestic and similar tasks. In each case, Dr Pascall's second report can be seen as responsive to material provided from the plaintiff's camp, but it undoubtedly does more than merely update her earlier report. There is no evidence as to how it came about that the appointment with Dr Pascall was made only two months before the hearing, why Dr Pascall took almost five weeks to prepare the report, and six weeks to get it to the defendant's solicitors, or indeed why it took the defendant's solicitors another week to serve it on the plaintiff's solicitors when they must have been acutely aware of the trial date. In the absence of any such evidence I cannot conclude that there are exceptional circumstances justifying the grant of leave for the purposes of rule 1241(5). Nor do I think that it would be appropriate in those circumstances to dispense with compliance with rule 1241, although the court plainly has the power to do so, where that would be justified. Accordingly, I propose not to admit those parts of Dr Pascall's second report, but to admit the balance of the report.

49. Specifically, the portions I do not admit are:

• The first full paragraph on page 12 ("There has been . . . the L5-S Disk").

• The second full paragraph on page 14 of the report ("Finally, Ms Brenner. . . the 2009 event").

• The second-last paragraph on page 15 ("as for all the household tasks . . . body of the report").

• The second paragraph response to question 13, on page 16 of the report ("she is capable . . . her neck/cervicothoracic spine.")

• The whole of question and answers 15 and 16 on pages 16 to 18 of the report.

50. After the excision of those portions of the report, I can summarise by saying that Dr Pascall generally adheres in the second report to the opinions she expressed in her earlier report.

51. The second doctor to whom the plaintiff was referred by the solicitors for the defendant was Dr Gordon Stuart, a consultant with the group Medico-Legal Consultants of Australian (MLCOA). Dr Stuart did not attach a curriculum vitae to his report. I am hence unaware of his level of experience and of whether he is in clinical practice. Dr Stuart saw the plaintiff in March 2010. He accepted that the plaintiff was suffering from headaches, neck and shoulder girdle stiffness resulting from soft-tissue injury caused by the motor accident. He noted that such injuries normally resolve within three months although a small percentage persist for many years and sometimes indefinitely. He also noted that the plaintiff was back to full-time work but had given up hockey. He considered that she was fit to return to her "pre-injury activities". He recommended walking and a program of core muscle strengthening exercises, initially as directed by a physiotherapist and subsequently self-directed, with resumption of a physically active lifestyle. He considered the plaintiff's prognosis to be favourable.

52. Dr Stuart reviewed the plaintiff in May 2011. He recorded that she was still suffering from headaches and muscle tension in the shoulder girdle. His recommendation as to treatment (walking and the resumption of physical activity) was unchanged. Her prognosis was good. He expressed the view that she did not require care or domestic assistance because of her injuries.

53. The third doctor qualified on behalf of the defendant was Dr Robert Kaplan, a forensic psychiatrist. He saw the plaintiff in October 2009. He accepted that her presentation was dominated by chronic pain due to her injuries in the motor accident. He said that she went through a period of depression and some anxiety as a result of restrictions and relationship problems. He thought that she had suffered from an adjustment disorder, caused in part by the accident, from which she had recovered by the time he saw her.

54. Dr Kaplan reviewed the plaintiff in March 2011. She was preoccupied with pain, a sense of loss over the consequences of the accidents, and frustration that she was not getting better. Dr Kaplan thought that she was suffering from some depression and possibly a degree of social withdrawal. This was consistent with a pain disorder, being a condition associated with enduring emotional, behavioural and lifestyle changes as a result of non-organic injury. He thought that she might benefit from review by a rehabilitation specialist to see whether there might be any useful treatment for her physical condition. He described pain disorder as "not an assessable condition". It is not clear to me what he meant by this, but he went on to say that the plaintiff did not have any psychiatric disorder from the accident, hence no intervention or treatment was called for.

55. By agreement between the parties, none of the doctors gave oral evidence. I draw no adverse inference from the fact that the doctors were not cross-examined. It is almost invariable experience that doctors who have written reports disagreeing in some measure with other doctors will "stick to their guns" under cross-examination, a process which incurs considerable expense and generally achieves little. Usually, as in this case, the medico-legal witnesses have seen each other's reports and commented on them in later reports. The course here adopted has been approved by this court on a number of occasions.

56. There is not a great deal of difference of opinion. I prefer the lengthy and detailed reports of Dr Griffith, Dr Brooder and Dr Pascall to the opinion of Dr Stuart where there is a divergence. I accept the evidence of Dr Sutton, who conducted extensive testing the results of which were unchallenged. Although Dr Kaplan is the only qualified psychiatrist whose opinion is in evidence, I do not find it persuasive because I think that the history he obtained from the plaintiff fell well short of her extended evidence in court, and of the history she gave to some of the other doctors.

57. The plaintiff was not seriously challenged in cross-examination as to her evidence generally, although I thought that her estimates of time spent in completing domestic tasks was rather expansive. I formed the same view about her mother's evidence, which I thought was generally credible but a little over the top on time taken around the house.

58. Apart from that, I thought that the plaintiff was a genuine and convincing witness. I did not think that she exaggerated the severity of her pain, or the other effects of her injuries upon her.

59. The accident has had an immense negative effect on her life. She was a young woman of nineteen, enjoying a range of physical activities, in an apparently happy relationship with her fiancé. She seems to have had a happy and positive outlook on her life. All of that has changed, and the motor vehicle collision is, if not the sole cause, a very significant contributor and probably the major cause. The plaintiff has not made much of a recovery after the first few months. She is coping but is not the same person she was. She has restricted movement in the neck and shoulders. She has to live with headaches. Her sleep is interfered with. Her marriage has broken up, and I am satisfied that the car accident played a major part in the no doubt complex factors which led to the breakup. The marriage may or may not have lasted otherwise, but there is no doubt that there was a much better chance of it lasting had it not been for the accident.

60. To her credit, the plaintiff has not allowed her injuries to prevent her from working as a public servant, including undertaking courses which may help her with applications for promotion in the future. At the same time, I have no doubt that her working capacity has been reduced to such an extent that her prospects of promotion have been lessened. The injuries have had an effect on the plaintiff's earning capacity. It is not the kind of loss that can be calculated in mathematical terms, but should be the subject of a broad general award. The plaintiff's earned income during the 2005-2006 financial year, the year of the accident, was $42,692.00 less tax of $9,241.00. For the last year for which figures are in evidence, 2008-2009, her salary was $55,084.00 less tax of $11,326.57. These figures provide some background for such an award.

61. The plaintiff has received incapacity payments from Comcare, starting the day after the accident and continuing, with brief absences from time to time until September 2008, in a total amount of $2,459.56 which she will be required to repay. Her counsel submits that I should in addition allow something to compensate her for the likelihood that she might have been promoted somewhat earlier, and hence, have earned more, if the accident had not happened, so that the Comcare payback does not represent her whole loss. I accept that some such allowance is justified, but in the absence of specific evidence about promotional opportunities which may have been lost, I propose to award only a total of $3,000.00 for past economic loss.

62. The selection of a figure for impairment of earning capacity for the future is necessarily highly imprecise. The plaintiff is now twenty-five. She got back to work very soon after the birth of her child and there is no reason to assume that her future, with or without the accident, would have involved a great deal of time off related to the birth of children. She might have worked until age sixty or sixty-five, that is for another forty or forty-five years. The multiplier for those periods at 3% compound interest are 1224 and 1298, in respect of a loss of $1.00 per week and with no allowance for mortality. A mathematical approach would require the conventional reduction by 15% to take account of the vicissitudes of life. Having regard to those parameters, it seems to me that a reasonable allowance for impairment of earning capacity for the future would be $25,000.00.

63. Most of the plaintiff's treatment expenses have been paid by Comcare. The Comcare payback is $5,487.10. There is a Medicare payback of $575.75. The plaintiff claims an amount of $1,553.10 which she has paid herself. I accept that some of this amount probably relates to the low back injury caused in the baby-lifting incident, which is unrelated to the motor accident. It seems to me that perhaps $150.00 might fall within that category and that it would be reasonable to allow $1,400.00 in respect of the amounts paid by the plaintiff.

64. The plaintiff gave evidence that in addition to the amounts listed in the schedule of out-of-pocket expenses prepared from her receipts, she had made some payments for chemist expenses for which she had not kept receipts. I accept this evidence but in fairness to the defendant, cannot allow much for it. I allow a further $100.00, inclusive of interest, in that respect. The past treatment expenses will accordingly be allowed at $7,562.85. Only the $1,500.00 paid by the plaintiff carries interest. Most of those payments seem to have been made during 2008 and later. I allow $200.00 for interest on the past treatment expenses paid by the plaintiff.

65. There is evidence of recommendations by medical practitioners about future treatment. I must weigh that evidence up against my assessment of how likely it is that the plaintiff will choose to have the treatment at her own expense once she has her damages. I have no doubt that she will continue to purchase non-prescription medication fairly regularly and that from time to time will need to see her general practitioner for review and for prescribed medication. She may elect to undergo physiotherapy, chiropractic or massage treatment from time to time. She may at some point decide to have the psychological counselling which has been suggested. She is unlikely to choose to spend her own money on treatment unless she is convinced that it will be beneficial. The multiplier for a woman aged twenty-five for life is about 1,400.00, so that a constituting loss at the rate of $10.00 per week would be valued at about $14,000.00. Vicissitudes need to be taken into account. For future treatment I allow $10,000.00.

66. The plaintiff made a claim in the statement of particulars for loss of superannuation benefits. There were no submissions directed by counsel to this aspect, but it seems to me appropriate to allow 10% of the award for future economic loss to compensate the plaintiff for the likely reduction in her ultimate superannuation benefits. I allow $2,500.00.

67. As to the Griffiths v Kerkemeyer component, I am satisfied that the plaintiff needed extensive help in the early period after the accident, that she has continued to need some help during the period since, and that she will in the future. There will remain heavy domestic tasks which she quite reasonably should avoid. I take account of the fact that, since the baby-lifting incident during 2009, a number of domestic tasks will be beyond her because of her low back problems, and that this incident would have happened regardless of the car accident.

68. The plaintiff's solicitors in the statement of particulars claimed a total amount of $20,000.00 for the past and future, for the Griffiths v Kerkemeyer component. This seems to me very much the sort of figure I would have awarded if I had approached the matter in a more detailed fashion, which may indeed have resulted in a somewhat higher figure. For the Griffiths v Kerkemeyer component, past and future, I allow $20,000.00 including interest.

69. As to general damages for pain and suffering and loss of enjoyment of life, I invited counsel for the parties to suggest figures. Counsel for the defendant put a range of $65,000.00 to $70,000.00. Counsel for the plaintiff suggested a figure of $80,000.00. Both parties were in general agreement that an apportionment equally between past and future would be appropriate. I agree with that approach, having considered the evidence. I propose to award $75,000.00 for general damages, apportioned equally between the past and the future. The past portion attracts interest for which I allow $4,500.00, taking account of the fact that it should be weighted rather more heavily to the months immediately after the accident, rather than spread evenly through the whole period.

70. The individual components of the award of damages are as follows:

71. Upon consideration, the total amount seems to me to represent a proper reflection of the effect of the injuries suffered by the plaintiff in the motor vehicle collision resulting from the defendant's negligence. There will be judgment for the plaintiff for that amount. I shall hear the parties as to costs.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Counsel for the plaintiff: Mr T M Thawley and Mr M J Bennett

Solicitors for the plaintiff: Maliganis Edwards Johnson

Procedures Rules 2006

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Judgment (80 paragraphs)

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Legislation Cited (2)