Cameron v Catic

THE MOTOR VEHICLE ACCIDENT

1. On 10 July 2013 the plaintiff was driving when she was involved in a motor vehicle accident ('MVA') in Manly, NSW. A vehicle travelling in the opposite direction made a right hand turn in front of the plaintiff's vehicle and collided with the right hand side of the plaintiff's vehicle. Liability for the accident has been admitted by the defendant.
2. The plaintiff's evidence was that she believed she was unconscious, and when she awoke she was in a panic as there was smoke around her and she thought she was going to burn and die.
3. Police and an ambulance attended and the plaintiff was conveyed to Royal North Shore Hospital ('RNSH') by ambulance. The plaintiff came under the care of Dr Stephen Ruff who performed surgery on her left leg. She also had treatment for her clavicle whilst in hospital. She was discharged from RNSH on 19 July 2013 and admitted to Greenwich Hospital for rehabilitation.
4. On 4 August 2013 the plaintiff was readmitted to RNSH for operative fixation of her clavicle fracture and was discharged on 7 August 2013 following surgery and admitted to Hirondelle Private Hospital for further rehabilitation. She was discharged home on 14 September 2013.
5. Upon discharge, the plaintiff gave evidence that she was in severe and constant pain from the MVA, was in a wheelchair and taking a lot of medication. She required care and assistance in and out of bed, with bathing, toileting, eating and hair combing.
6. After a few months the plaintiff's cast was removed and she was given a CAM boot for her ankle and crutches for use on stairs. She stated that she had to learn to walk again. She had difficulty negotiating stairs and using the crutches, as her right arm was in a sling and she couldn't do anything with her right arm, even lift it up. She needed help from friends and family to do her shopping and to take her to and from church.
7. The plaintiff also gave evidence that she had suffered a head injury in the MVA and injuries to her mouth, face, lips and teeth and noticed that pieces of her teeth were falling out.
8. In August 2014 the plaintiff attended Dr Castle, Orthopaedic Surgeon, and complained of pain in her lower back and right leg. The plaintiff's evidence was that this pain was worsening and that she needed domestic assistance until about Christmas 2014. She paid her friend Sunita to help her at home but stopped that at the end of 2014 as she could no longer afford it. Her friend, Mrs Langford, would take her to church.
9. In January 2015 the plaintiff attended Rose Cumberland, Psychologist, and reported being in chronic pain allegedly as a consequence of the MVA and that she was getting severe headaches and was having trouble recovering psychologically from the accident.
10. At that time she also noticed that her ankle was getting infected and was swollen and she returned to see Dr Castle complaining of low back pain, right groin pain, bilateral interior knee pain, right heel pain, left ankle and foot pain.
11. Throughout 2015 the plaintiff attended a number of orthopaedic specialists and psychologists and in July 2015 she underwent an MRI which showed bilateral medial meniscus tears along with early arthritic changes. An MRI of her thoracic spine in February 2016 requested by Dr Hartin, Spinal Surgeon, is reported to have shown moderate degenerative changes and absence of significant neural or radicular symptoms which lead to Dr Hartin recommending conservative treatment.
12. On 11 March 2016 the plaintiff was admitted to Mona Vale Hospital for bilateral arthroscopies and removal of a left medial malleolus screw.
13. In July 2016 the plaintiff consulted Dr Neil Simon, Neurologist, complaining of neck and head trauma and a fluctuating level of consciousness after the MVA and intermittent headaches. Dr Simon commenced her on Propranolol for treatment.
14. The plaintiff continued to complain of symptoms and returned to see Drs Castle and Hardin whom recommended conservative measures for her orthopaedic problems. She also saw Dr Ahmed, Psychiatrist, for her psychological problems and she was prescribed further medication.
15. In evidence before me, the plaintiff complained of widespread pain, restriction of movement and physical disability. She also complained of significant psychological difficulties that are ongoing and that she has been unable to drive or do most of her household and personal tasks and has required significant assistance from others.

ISSUES IN DISPUTE

1. The parties filed a Joint Statement of Issues dated 9 April 2019 which contains the following: Statement of Issues: 1. Causation of the alleged injuries and continuing disabilities. 2. The extent of the plaintiff's pre-accident physical impairment. 3. The extent of the plaintiff's pre-accident psychiatric impairment. 4. The extent of the plaintiff's injury, disability, loss and damage arising from: 1. The subject accident; 2. Any pre-accident conditions and/or co-morbidities. 1. Causation and quantum of past treatment expenses. 2. Causation and quantum of future treatment expenses. 3. Entitlement to damages for economic loss, including: 1. Whether the plaintiff had any earning capacity at the time of the accident; 2. The plaintiff's most likely future employment circumstances had the accident not occurred. 1. Entitlement to damages for past gratuitous or commercial domestic assistance. 2. Entitlement to damages for future commercial domestic assistance.

LAY EVIDENCE

1. The plaintiff was called and gave evidence. I will refer to that evidence later.
2. The plaintiff called Sarita Kumari ('Ms Kumari') who met the plaintiff when she was studying at TAFE in a Business Administration Course in about 2010. They were both born in Fiji and had common backgrounds. She did not observe the plaintiff to have any physical disabilities before the MVA.
3. The plaintiff contacted her after the accident and asked her to help with the cleaning of her home, shopping and taking her to medical appointments. Ms Kumari did so and the plaintiff paid her and she kept records of such payments. She was, however, only able to produce four invoices covering the period between June and August 2014. She was unable to recall exactly how many times she had assisted the plaintiff and said that on occasions she helped the plaintiff without being paid. The fees varied from $30.00 to $100.00.
4. I accept Ms Kumari was telling the truth and accept, given the passage of time, her memory was somewhat diminished as to how many times she had helped the plaintiff and over what period of time.
5. The plaintiff called Irene Prasad ('Ms Prasad'), the plaintiff's niece. She described the plaintiff before the accident as someone who was very social and who would come and visit her mother and family regularly and that she did not exhibit any physical disabilities.
6. Since the MVA she has noticed that her aunty is in physical pain, does not drive anymore and has become quite depressed and emotional. The plaintiff no longer attends as many social functions as she had previously as she says that she doesn't feel well. Ms Prasad noticed that since the accident, when she has seen the plaintiff, the plaintiff has complained about pain. She was unable to indicate whether the plaintiff had complained of pain before the MVA.
7. I accept Ms Kumari as a witness of truth. She gave her evidence in a forthright manner and when she could not remember, she said so. Again, I accept that it is difficult to remember specific dates that were years ago, but I have no hesitation in accepting her evidence.
8. The plaintiff called Bernadette Langford ('Ms Langford') who gave evidence that she and the plaintiff had met in about 1992 through a church group and had become friends. She visited the plaintiff in hospital after the accident, and she stated that the plaintiff was at that stage a mess.
9. Ms Langford and her husband provided some assistance to the plaintiff after the accident such as driving her to church and assisting with grocery shopping.
10. Ms Langford was an enthusiastic witness who in my view was trying to tell the truth, but her evidence was difficult to follow and jumped around a lot. I do accept, however, that Ms Langford and her husband provided some limited assistance to the plaintiff in the period immediately after the accident by bringing her food and driving her to and from church.
11. The plaintiff then called Chandra Prasad ('Ms Chandra Prasad'), the plaintiff's sister. She was asked about whether she observed anything about her sister after the Qantas accident in 1999 and whether it had affected the plaintiff physically. She indicated that she had no idea, but that she had helped to look after the plaintiff after that accident and that the plaintiff then got better.
12. She stated that the plaintiff is not the same person since the MVA, that she complains of pain and aching everywhere, is not able to do much and is always very tired very quickly.
13. She was questioned about the work that the plaintiff may have been doing and she said she had no idea. She also said she had no idea that the plaintiff was receiving a disability pension between 2008 and July 2013.
14. Ms Chandra Prasad's evidence was not of great assistance. I do not believe that she was lying and accept that she was trying to tell the truth. But it seems to me that her memory for events and dates was not good and that she may not have been aware of the plaintiff's condition as she was caring for her elderly mother, disabled child and large family. I have come to the view that Ms Chandra Prasad did not lie in giving her evidence but answered many questions by saying she had no idea or could not remember.
15. The plaintiff gave evidence before me over several days. It became apparent that the accident in the course of her employment with Qantas in 1999 was a significant accident and had far reaching consequences for her physical, psychological and financial circumstances.
16. The plaintiff commenced employment with Qantas at the RAAF Jet Base in 1998 as a process worker who was involved in processing, repairing and dispatching aircraft parts. It was heavy physical work. At the same time the plaintiff was working as a cashier at the Sydney Harbour Casino.
17. On 8 March 1999 the plaintiff was on a cherry picker and needed to move some parts to the mezzanine level. There was a locked forklift on the mezzanine level and she could not move it. She asked a co-worker to move the forklift and in doing so it spun out of control and squashed the plaintiff between the racks and the forklift. The plaintiff describes (T p11) the injuries she sustained in the forklift accident as damage to a few discs in the neck and lower back, and an impingement to her right shoulder. She stated there were no fractures in any parts of her body, but there was a labral tear in her right hip, which was repaired by Dr Castle.
18. She was paid workers compensation for about three years after the accident and then she was stood aside and her employment terminated. The plaintiff said she tried to get work at Qantas, but was not successful. She said she applied for other work and she provided a job application to Pittwater Council (Exhibit B). That application was unsuccessful. She was unable to provide any further job applications or details of positions she had applied for.
19. The plaintiff said she applied for other work through Centrelink and obtained some part-time work in telemarketing. This job did not last because she could not manage the role as it involved a lot of sitting down and it "aggravated my lower back a bit". (T p14)
20. The plaintiff gave evidence that she was then on the Newstart Allowance between 2001 and 2008, and was then in receipt of a Disability Pension and remains in receipt of same to date.
21. The plaintiff then gave evidence that she tried to retrain herself to do some office work, but was unable to do so because she was having some severe skin problems. Documents from TAFE were tendered in support of her allegation that she was attending TAFE (Exhibit C).
22. The plaintiff then cared for her dying mother, who passed in 2011. She then gave some thought again to retraining, but decided to have a break and travel overseas for 3 weeks in April 2013. Upon her return she was considering going back to do some further retraining, but did not do so before the MVA occurred. Her evidence was that she felt fit and well and was keen to return to the workforce.
23. Her evidence was as follows: (T p18): 'Q. Can I ask you about how your health was prior to the car accident, okay ? Did you still have the skin condition ? A. On and off, it wasn't that bad. Q. How was your neck and back, prior to the - A. It was very good, I managed my life, I looked after my mum, I drove around, I did my own shopping, I cleaned my own house. I went out with my friends, my social life was full, I had everything going for me. I didn't need assistance from anyone, so I was managing my life really, really well.'
24. Further, the plaintiff was asked about her condition after the MVA: (T p22-23) 'Q. Now, what do you say you can't do around the house? A. I can't vacuum very well. I'm in a lot of chronic pain. I - my life has been destroyed by this accident, because now I can't vacuum a lot…." Q. What physical problems were you still having, if any? A. I was having a lot of physical problems in my - my ankle kept getting infected in between periods. It- it would be swollen, and I had problems, so I had to see the specialist again in regards to my ankle, and I had severe headaches all the time, continuous. It was from the accident just went worse. I had scans done and - and- and seen Dr Neil Simon as well. My GP sent me off for a scan and it showed I had a stroke.'
25. Then, further: (T p26) 'Q. So can I bring you now forward to today, and could you perhaps tell us what physical symptoms you have still? A. I have severe headaches all the time. I have severe neck pain all the time. My jaw keeps getting locked as well, I need my teeth to be fixed. I have spinal pain in my thoracic and in my lower back. My arms are sore. I have still numbness of my chest and shoulders are painful. Also, I have pain mostly on the right side, my hips, and my lower pain - lower back pain is really bad. I have pains in my knees and my foot and ankle. I - sorry, may I? Q. Please? A. I still have pain in both my breasts which was in accident, so - '
26. The general tenor of the plaintiff's evidence in chief was that the symptoms of her injuries sustained at Qantas had pretty much resolved prior to the MVA and that she had been ready and willing to return to work. In my view, the plaintiff was deliberately trying to down play the effect of the injuries in the Qantas accident and exaggerate the disabilities and symptoms she had consequent upon the MVA.
27. In cross-examination the plaintiff was asked about the medication she currently takes and when she started taking such medicines. These were drugs for severe pain, depression and anxiety. The plaintiff, in my view, tried to tailor her evidence to show that the MVA had destroyed her life and the effects of the Qantas accident had all but subsided. There are numerous examples of this behaviour throughout the Transcript: (T p51-51) 'Q. What I want to suggest to you is that this evidence that you've given in Court today‑‑ A. Yes. Q. ‑‑that you were actually, just before the motor vehicle accident, intending imminently to start to look for work, or return to further study‑‑ A. Yes. Q. ‑‑is recent invention. Do you understand‑‑ A. Yes. Q. ‑‑what I mean by that? A. Yes, I know what you're saying, but it's not correct. I would have gone back and finished my business management course, because I have no responsibilities for anyone, or - or - my mother passed away. I'd come back from a major holiday. I intended to take up something, because I had no one relying on me, and I didn't have any problems doing what I wanted to do. So I intended to either finish my course or take up a job that was not heavy lifting, or something. Q. Before giving that evidence this morning, you - I suggest - have not informed anybody in relation to this claim, either a medical practitioner, or a lawyer, that you were considering, just before this motor vehicle accident, a return to work. A. No one asked me that question. Q. Madam, with respect, you were asked about your work intentions by numerous medical practitioners, and an occupational therapist in the context of your consultations with those persons, in relation to this claim, weren't you? A. During those consultations with those doctors, while I was injured, while I was chronically ill, I did not, at that moment, being ill, consider it. But when I was well, I thought I will do those courses. But the GPs do not want to know what you're doing. The lawyers never asked me if I had gone back and - and done anything, or not that I can recall.'
28. The plaintiff was asked about her intentions to return to work and to studying. She was asked about the medication that she was taking for pain and for anxiety before the MVA. She was asked about her symptomology before and after the MVA. Her answers were designed, in mind, to demonstrate to the court that she had virtually recovered from the Qantas accident before the MVA: (T p71-72) 'Q. Now, Madame as at the date of the motor vehicle accident? A. Yeah. Q. You still believed‑‑ A. Yes. Q. ‑‑that the settlement that you had been involved in relation to the Qantas claim was insufficient and you still believed that you needed medical attention for injuries that arose from that event which occurred in 1999, didn't you? A. Sorry, say that again? Q. As at July 2013‑‑ A. Yes. Q. ‑‑you still believed‑‑ A. Yes. Q. ‑‑that you needed ongoing medical treatment for the injuries that you had sustained when working at Qantas in 1999? A. No, these injuries are - are - and pain are from the motor vehicle accident which destroyed my life. My life was not destroyed when I had the 1999 accident, I was back at work in two weeks. I went back to work periodically and then obtained - or went back to work full‑time. I was doing three jobs and I had to give up the Star City job to manage the Qantas job full‑time and I tried my hardest. Q. You try and answer my question‑‑ A. Yes. Q. ‑‑in July 2013‑‑ A. Yes. Q. ‑‑you still believed‑‑ A. Yes. Q. ‑‑that you needed to get medical treatment for the injuries that you had sustained in 1999, didn't you? A. Lower back and neck. My lower back‑‑ Q. Is your answer to the question "yes" or "no"? A. My - I was not looking for treatment. I had seen any specialists in regard to my lower back or neck. So that would be a "no" because I had not seen any specialist to try and operate my neck or lower back in regards to the Qantas accident.'

THE QANTAS PROCEEDINGS

1. As indicated above, it was clear to me that the plaintiff was trying to down play her pain and difficulties after the Qantas accident to establish that all her problems were now as a result of the injuries alleged to have been sustained in the MVA.
2. After an adjournment of some weeks, to obtain the Supreme Court file with regard to the plaintiff's proceedings in that court, the defendant tendered a bundle of documents from those proceedings which became Exhibit 4.
3. Therein the following chronology was established: '08.03.1999 Plaintiff crushed by forklift in course of her employment with Qantas. 01.02.2008 District Court proceedings No. 6941/2000 - (the original claim) settled with entry of consent orders (the settlement) after 13 days of hearing. 06.06.2008 Defendant obtains order, by way of inter pleader, from Johnstone DCJ for payment of settlement monies into court. 10.10.2008 Plaintiff files District Court Motion inter alia seeking orders to set aside the earlier settlement. 14.10.2008 Plaintiff's Application for Leave to Appeal against earlier consent orders, dismissed with costs. 24.10.2008 Plaintiff's extant District Court Motion to set aside the earlier settlement dismissed with costs on plaintiff's application. 11.12.2008 Plaintiff files District Court Notice of Motion to set aside earlier settlement. 14.04.2009 Following contested hearing, McLoughlin DCJ dismisses plaintiff's application to set aside. 05.05.2009 Plaintiff files Notice of Intention to Appeal against the decision of McLoughlin DCJ. 14.10.2009 Plaintiff given leave to appeal and consent orders entered setting aside the decision of McLoughlin DCJ and remitting the matter back to the District Court. 28.01.2010 Plaintiff's Notice of Motion to set aside the Settlement, struck out by Johnstone DCJ as irregular. 13.05.2010 Plaintiff files Statement of Claim in the Supreme Court inter alia seeking $8million damages from the defendant in respect of matters related to the Original Claim and the Settlement. 06.08.2010 Defendant's Motion to strike out plaintiff's extant Supreme Court proceedings comes before Schmidt J. 13.08.2010 Schmidt J grants plaintiff leave to re-plead. 24.09.2010 Registrar of the Supreme Court makes orders transferring the Original Claim from the District Court to the Supreme Court. 21.02.2011 Defendant's Motion to strike out Amended Statement of Claim heard by Latham J. 15.02.2011 Plaintiff files a Notice of Motion in the Supreme Court seeking payment out of some monies held in court and also substantive relief related to the Original Claim and the settlement. 25.02.2011 Latham J strikes out Amended Statement of Claim without leave to re-plead. 27.04.2011 Plaintiff files Amended Notice of Motion, inter alia, seeking substantive relief related to the Original Claim and the settlement. 22.06.2011 Harrison J hears plaintiff's Motion and makes orders for payment out of some monies. 26.08.2011 Court of Appeal dismisses plaintiff's Application for Leave to Appeal from the decision of Latham J with costs. 16.09.2011 Harrison J hears balance of plaintiff's Motion for substantive relief. 23.09.2011 Harrison J delivers judgment dismissing plaintiff's Motion. 23.09.2011 Plaintiff files application for Special Leave to Appeal to the High Court from the decision of the Court of Appeal dated 26.08.2011. 09.12.2011 Harrison J Makes costs orders against the plaintiff. 09.02.2012 High Court dismisses plaintiff's Application to Appeal from the decision of the Court of Appeal. 05.12.2013 Plaintiff files Summons in present proceedings.'
4. Further, contained in Exhibit 4 is correspondence between the plaintiff and Qantas. There is a copy of a Summons filed 5 December 2013 in the Supreme Court which was prepared and filed by the plaintiff. Attached to the Summons is an affidavit drafted, typed and filed by the plaintiff on 5 December 2013.
5. Further, contained in Exhibit 4 is a Notice of Motion and affidavit prepared and filed by the plaintiff on 10 March 2014. These are all detailed documents that the plaintiff prepared without any assistance or legal representation.
6. I note that these documents were prepared in the 6-9 months after the MVA when the plaintiff alleges she was suffering a lot of pain and experiencing significant disabilities, was unable to work, had to learn to walk again and required significant assistance from friends and family.
7. The plaintiff was further cross-examined about these documents and the proceedings in general. The following interchanges occurred: (T p107-109) 'Q. Between February 2012 and the date of the accident, you were still in contact with Mr Joyce from Qantas, asking to be compensated because you were still suffering from the effects, during that time, from the Qantas accident, weren't you? A. I was. Q. And you represented to Qantas, right up until the time of the motor vehicle accident, and after the motor vehicle accident, that you were severely disabled at that time as a result of the Qantas accident, didn't you? A. I never said I was severely disabled……. Q. And do you tell us today that whenever you asked for compensation arising or relating to the Qantas accident, that you've told the truth? A. Yes Q. In paragraph 10 of this document, on page 7, you wrote, "The plaintiff suffered serious internal injuries to her body and lives in chronic pain all the time and is still waiting to have seven surgeries." A. Yes Q. Was that true? A. Yes………… Q. Ms Cameron, were you exaggerating when you including this information - A. No. Q. --- in your Statement of Claim? A. When I made the statement in the statement of claim, I was suffering those things. That's the statement of claim that I made.'
8. In contrast, when asked about the documents filed in the Qantas proceedings, and a document signed on 10 March 2014 (part of Exhibit 4), the following is recorded: (T p139): 'Q. Could you turn to pages 71 and 72. Do you see that, that's a document you signed on 10 March 2014? A. Yes. Q. That's nine months after the motor vehicle accident, isn't it? A. Yes. Q. And you took it to the Supreme Court and filed it? A. Yes. Q. You were still seeking damages from Qantas? A. Yes Q. And you wrote, in paragraph 1 on page 72: "I - that I, the severely injured plaintiff seek contempt of Court orders." You wrote that, didn't you? A. From the Qantas accident, yes. Q. I'm just asking - A., Yes Q. --you about what you wrote, the important part being that you wrote: "I the severely injured plaintiff." A. Yes. Q. You considered yourself at this time to be severely injured in consequence of the Qantas accident, didn't you? A. Yes.'
9. In the Qantas proceedings, the plaintiff was seeking in excess of $10 million compensation from Qantas and her former solicitor. On 1 April 2014 the plaintiff appeared before Rothman J in person on the plaintiff's summons and Qantas' application to have the summons dismissed and to have the plaintiff declared a vexatious litigant. Parts of that Transcript (Exhibit 3) were put to the plaintiff: (T p145-146) 'Q. You said this to him in court: "I seek all the orders in my notice of motion because this has been an extremely horrible accident and my life has been destroyed because of it." That's what - A. That's related to the Qantas accident. Q. Yes. That's what - A. Yes Q. --you said to Rothman J, didn't you, in April 2014, some ten months after the car accident. A. It relates to the Qantas accident, yes. Q. And you were telling a judge of the Supreme Court of New South Wales that you considered that your life had been destroyed as a result of the Qantas accident, didn't you? A. Yes. Q. Were you telling the truth at that time? A. Yes Q. That is after you had been involved in the car accident by nine or ten months? A. Everything I said in my submissions and affidavits and forms all related to the Qantas accident, that related to the Qantas accident. Q. You see, earlier today you've given evidence on a number of occasions that you thought your life had been ruined up until the time of the car accident, then you has the car accident, and then you really understood how your life had been ruined, ie it was much worse. That's what you said, isn't it, today? A. Yes, I did. Q. And you didn't say anything like that to Rothman J in the Supreme Court, did you, you didn't say to him, look, I had this Qantas accident and life was pretty bad, but your Honour, I've since had a car accident and now my life is so much worse, did you? A. No I didn't.'
10. On any assessment of the credibility of a witness, the inconsistencies that have been demonstrated in this plaintiff's evidence would be cause for concern. I am cognisant of the admonition in Smith v New South Wales Bar Association (1992) 108 ALR 55 that unless it is truly necessary for the purpose of disposing of the particular case that a specific finding that deliberately false evidence has been given, such a finding should not ordinarily be made.
11. To my observations the plaintiff was not a witness of truth. In her examination in chief, and in her cross-examination prior to the production of the Supreme Court file relating to the Qantas proceedings, her evidence was such that the Qantas accident was only causing her minimal disability as the effects of those injuries had all but subsided prior to the MVA.
12. Once the Supreme Court file had been produced, it appeared to me that she would tailor her answers to say things that she thought she might not be caught out on. During that cross-examination the plaintiff was dramatic, evasive and resentful. I am of the view that the plaintiff would say anything that she thought might assist her case, regardless of its veracity.
13. It was submitted by counsel for the defendant that there are really only two possibilities, either the plaintiff has lied to me in these proceedings, or she lied to the Supreme Court in the Qantas proceedings. Logically, that must be correct. I cannot know what parts of her evidence are true or otherwise, and therefore unless there is independent corroborative evidence to support what she has said, I do not believe her.

EXPERT EVIDENCE

1. The plaintiff tendered the following exhibits: A Plaintiff's Tender Bundle B Plaintiff's Application for Employment to Pittwater Council dated 13.01.2003 C Various documents from TAFE NSW (3 pages) D Photographs of plaintiff taken in hospital after the motor vehicle accident E Black & White photograph of plaintiff's car after the motor vehicle accident F Photocopies of receipts for personal assistance between June & August 2014 G Taxation Returns of the Plaintiff for the Years Ending 30.06.2000 & 30.06.2001 H Schedule of Payments made by Insurer, Enstar Australia Limited, to the plaintiff as at 01.05.19 J Medicare History Statement (marked Option A) K Medicare History Statement (marked Option B)

1. The defendant tendered the following exhibits: 1 Defendant's Tender Bundle 2 Motor Accident Personal Injury Claim Form 19.07.13 (Exhibit 2) 3 Transcript of Proceedings before his Honour Judge Rothman re Cameron v Qantas of 1/4/14 2001/92202 & 2013/366854 4 Bundle of documents extracted from the Supreme Court file 5 Bundle of photographs 6 Reports of Dr Geoffrey Rosenberg dated 30.01.07, 24.09.07, 20.02.09 & 17.08.09 7 Report of Dr Paul Friend dated 04.09.08 8 Report of Dr Christine Castle dated 29.01.09 & 11.01.13 9 Radiological Reports from St Vincent's Clinic & Northern Sydney Central Coast, NSW Health 10 Bundle of extracts from Dr Tattersall's records for the period 05.09.07-06.02.14

1. The defendant's tender bundle contains the transcript of a joint telephone conclave of orthopaedic surgeons, Dr James Bodel and Dr John Cummine, on 16 April 2019. I accept that this is the most important of the opinions of the orthopaedic specialists.
2. Both doctors agreed that the plaintiff possessed pre-accident medical conditions which impacted on her functional capacity primarily relating to the workplace accident at Qantas in 1999. Every area of which she complained at the time of their respective examinations were symptomatic before the MVA, and they agree that as a result of the MVA, the plaintiff would have required four to six months recovery from the injuries she sustained in that accident and the subsequent surgeries.
3. Both Dr Bodel and Dr Cummine agree that the plaintiff is presently impaired for all forms of employment based on the fact that she is in receipt of the Disability Support Pension probably arising from injuries in her workplace accident in 1999.
4. Dr Bodel gave evidence via telephone on 2 July 2019 and noted that he had not clinically examined the plaintiff since January 2016. His evidence was therefore that he could not assess her clinical capabilities during that period between his examination to date but that at the point in time that he did examine her (January 2016), it was the 1999 accident that impaired her for all forms of employment at that time.
5. Counsel for the plaintiff referred my attention to the evidence given by Dr Bodel: (T p48) 'Q. The summary of injuries on that page, they are the summary of injuries that were described to you by the plaintiff, as having related to the 1999 accident, aren't they? A. No. It's the summary of injuries that this lady has had, but in total, including her complaints from the motor vehicle accident, as I understood what I've written. Q. So it includes the summary of her injuries from both accidents. Is that right? A. Well, it's her complaints, that is the complaints that she had, and I believe that she did suffer further injury to areas where she had previously had problems, and that the accident influenced those pre‑existing pathologies, and caused additional complaints.'
6. The report of Dr Rosenberg of 30 January 2007 (Exhibit 6) wherein the doctor notes that the plaintiff attempted to return to work after the Qantas accident, but eventually her employment was terminated and that she had not returned to work. The doctor took a history of ongoing back pain.
7. Dr Friend, the plaintiff's treating psychiatrist, in his report of 20 December 2018 (part of Exhibit A) takes the following as part of his history having examined the plaintiff that day: 'She stated that her life was stable and okay. She was attending church, would help her elderly mother by taking her to appointments and had contact with friends and family. She had done several courses.'
8. But, on page 4 of his report, Dr Friend records: 'Ms Cameron is angry that the other driver lied and that his lawyers and insurance company are opposing her claim.' 'Diagnosis and recommendation: I have only Ms Cameron's account of the motor vehicle accident and no independent or corroborative information. It appears that Ms Cameron has a diagnosis of Post-Traumatic Stress Disorder and probably a previous diagnosis of Major Depression which has at least partially responded to the prescription of Citalopram. Ms Cameron is very focused on getting adequate compensation as she was with the previous claim against Qantas.'
9. Dr Chia, the plaintiff's treating orthopaedic specialist, performed the removal of the hardware in the plaintiff's ankle and bilateral knee arthroscopies on 11 March 2016.
10. In his report dated 3 June 2016 (part of Exhibit A) Dr Chia notes that the plaintiff continues to do well from her left ankle and right knee perspective. He opines that the problems she is having in her left knee are due to her early osteoarthritic changes and she needs to work hard on her quadriceps strength.
11. Dr Hartin, Orthopaedic Surgeon, was treating the plaintiff for her back pain. In his report of 15 October 2018 (part of Exhibit A) he notes that an MRI performed on 2 October 2018 shows moderate degenerative changes in the cervical spine and wide spread degenerative changes also evident on a technetium bone scan. He states as follows: 'I have explained all these findings to Rita again today, and provided her with reassurance. Her ongoing neck and back symptoms relate to advanced degenerative changes through the cervical and lumbar spine.'
12. Dr Hartin makes no comment about the cause of the symptoms the plaintiff complains of.
13. Dr Jones was qualified on behalf of the plaintiff and her report of 21 January 2016 was tendered (part of Exhibit A). On page 5 of that report the doctor responded to the following question: Q 'Your opinion as to the continuing restrictions on our client's capacity for work? A Mrs Cameron has been unfit to work since 1999 because of an accident at that time. Were she to have been working at the time of the accident of 10 July 2013 she would be unfit to work from the current accident because she has tendonitis in her right shoulder, a rigid subtalar joint and limited movement in her ankle joint, cervical dysmetria and lumbar dysmetria. These disabilities make her unfit to work as a store person.'
14. Dr Neil Simon, Neurologist, was also qualified by the plaintiff. His report of 24 February 2017 forms part of Exhibit A. Dr Simon noted that the plaintiff's complaint to him was of intermittent headaches with increasing intensity and pain since the MVA. Dr Simon prescribed the plaintiff Propranolol twice per day and when he reviewed the plaintiff on 1 September 2016 he noted that she had had a good response to the Propranolol with far fewer headaches and of lesser intensity.
15. Dr Simon notes at pg 2 of his report as follows: 'In terms of Ms Cameron's capacity for work, it was undoubtedly impacted on by the chronic headache state, although I am encouraged by the significant improvement on medication treatment. With control of that condition I would anticipate that Ms Cameron could participate fully in the work force. This excludes any unrelated disabilities that were not included in my initial assessment.'

CONSIDERATION

1. It is difficult for me to reconcile the various submissions that have been put by the parties and the evidence. The plaintiff submits that before the MVA she had residual symptoms in her neck and lower back as a consequence of the Qantas accident. She would however have been capable of light work and she was doing TAFE courses to facilitate her return to the workforce.
2. The defendant submits that she had no intention of returning to the workforce prior to the MVA as she had not completed any of the courses she undertook and made only one job application to Pittwater Council in the period between her termination by Qantas and the MVA.
3. The plaintiff's evidence was that she had all but recovered from the Qantas accident before the MVA and that she had intended to return to work. However, in circumstances where I do not accept the plaintiff as a witness of truth, and there is virtually no independent corroborative evidence of her intentions and applications, and therefore I cannot find that she did intend to return to the workforce.
4. Even if there had been that intention, the fact that in the months immediately after the MVA the plaintiff was engaged in significant litigation in the Supreme Court, unrepresented, does not to my mind sit with someone who was unable to work at all and has remained so to date.
5. Again, as I do not accept the plaintiff as a witness of truth, and the only independent corroborating evidence of her capacity to work is that in the months after the MVA the plaintiff continued to conduct her Supreme Court proceedings unrepresented. In those proceedings she told Rothman J that the Qantas accident had ruined her life, which is contrary to the position she advanced in these proceedings, I am not persuaded on the balance of probabilities that the plaintiff has suffered any economic loss or loss of earning capacity as a consequence of the MVA.
6. Counsel for the plaintiff conceded there is no entitlement to gratuitous care and a buffer for commercial care is sought. I do not accept that the plaintiff has any need for care or future medical expenses as a result of the injuries sustained in the MVA. The defendant concedes $1,000.00 for past care and assistance.
7. With regard to the Medicare benefits paid, I think it is reasonable to allow those expenses up until 6 weeks after the surgery on 11 March 2016 to remove the screw in her ankle. 6 weeks from that date allows for a reasonable recovery period.

FINDINGS

1. I make the following findings: 1. The plaintiff was born on 26 January 1957 in Suva, Fiji. She achieved the equivalent of Year 11 at High School in about 1973 and then commenced to work in a variety of semi-skilled occupations. She is currently 62 years of age. 2. The plaintiff migrated to Australia in about 1981 and worked in various process work type occupations and then progressed to semi-skilled administrative occupations with various employers including Woolworths, Grace Bros and Sydney Harbour Casino. 3. Since 1992, the plaintiff has resided in a one-bedroom unit on the third floor of a villa complex in Manly, which is owned by Housing NSW. She has no plans to move. 4. In 1998 the plaintiff commenced working as a store person for Qantas and also worked part-time as a cashier for Sydney Harbour Casino but she then sustained injuries on 8 March 1999 when she was struck by a forklift. 5. On 8 March 1999 the plaintiff sustained an injury in the course of her employment when she was squashed by a forklift and suffered a twisting injury to her back. The plaintiff returned to work after a couple of weeks on light duties and stopped working in December 2000 and her employment with Qantas was terminated in 2001. 6. The injuries the plaintiff sustained in the Qantas accident included injuries to the right hip (labral tear), cervical spine, lumbar spine, right shoulder, knees and psychiatric injuries. 7. In or about 2002 the plaintiff worked as a telemarketer part-time for a few weeks but otherwise she has not worked since that time. 8. The plaintiff commenced court proceedings in respect of the Qantas accident. A hearing commenced in 2008 and the claim was then settled for $940,000 inclusive of costs. 9. In April 2008 the plaintiff applied for and obtained a Disability Support Pension on the basis that she was unable to work. 10. The plaintiff then embarked upon a course of litigation as a self-represented litigant seeking to set aside the settlement of the Qantas claim and to reagitate for a substantially greater award of damages on the basis that she had sustained serious injuries and was permanently unfit for employment and required multiple surgeries for her accident related injuries. The plaintiff continued on this course of action until 13 May 2014 when Rothman J made a declaration against her pursuant to the Vexatious Proceedings Act 2008. 11. In 2010 the plaintiff commenced a Certificate Course in Business Administration at TAFE but dropped out of the course after one semester due to stress. 12. The plaintiff made one application for a job with Pittwater Council for a part-time service role dated 13 January 2013 and was not successful. 13. Immediately prior to the MVA the plaintiff had no plans to either attempt retraining or to obtain employment. She had not done so in any meaningful way since her termination by Qantas. 14. On 10 July 2013, in the midst of her attempts to obtain additional compensation from Qantas and from a law firm that had acted for her in the Qantas proceedings the plaintiff was injured in the subject MVA, which was caused by the admitted negligence of the defendant. The MVA was a serious collision and the plaintiff was taken to RNSH by ambulance. 15. The plaintiff suffered in that accident various soft tissue injuries and fractures of the right third metatarsal, left ankle, sternum and the right clavicle. The ankle fracture required surgery with insertion and subsequent removal of a screw. 16. The plaintiff was hospitalised at RNSH and then Hirondelle Rehabilitation Hospital in a rehabilitation setting and returned to her home on 11 September 2013. Thereafter, she has continued to live alone in her home unit to date. 17. From December 2013 to April 2014 the plaintiff continued to pursue her claims for damages against Qantas and Walker Legal and in so doing alleged that she continued to be significantly disabled by the injuries sustained in 1999 to the extent that her capacity to work was impaired and that she required money to pay for multiple surgeries. She considered that up until April 2014 all of the problems in her life were due to the Qantas accident. 18. Following the MVA, the plaintiff has continued to seek treatment from a number of medical practitioners although there has been no active treatment provided to her since about 2016 save for the prescription of various medications. 19. The plaintiff has substantially recovered from the injuries caused by the MVA. 20. Applying s 126 of the MACA, I make the following findings: 21. The plaintiff was in receipt of a disability pension as at the time of the accident and was not about to take any steps to alter that arrangement; 22. The plaintiff's most likely future circumstances but for the injury were that she would continue to receive a disability support pension until retirement age. 23. The plaintiffs post MVA circumstances have not changed. During the period that she was recovering from her orthopaedic injuries (July 2013 to December 2013) the plaintiff would not have been seeking paid work in any event. 24. The plaintiff's past out-of-pocket expenses are $31,722.95 in s 83 MACA payments. The plaintiff has not provided any other documentation to support a claim for out-of-pocket expenses in addition to that amount save for approximately $1,000 paid to a friend to assist with cleaning. 25. Other gratuitous care provided to the claimant has not met the threshold requirements of s 141B MACA, as conceded. 26. The plaintiff does not require any ongoing care or assistance in the future in her present circumstances. She admitted that she can perform all necessary daily activities. 27. Any ongoing medication taken by the plaintiff is related to her pre-existing conditions. It is questionable whether she requires any medications in addition to simple analgesia in any event. She does not take prescription medications in accordance with the prescriptions by medical practitioners. 28. The plaintiff does not require ongoing medication for any accident-related conditions.
2. Thus, I will allow past out-of-pocket expenses pursuant to s 83 of the MACA in the amount of $31,722.95.
3. I will allow the Medicare sum in the amount of $9,782.45.
4. I will allow the agreed sum of $1,000.00 for past care.

ORDERS

1. I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $42,505.40. 2. I order the defendant to pay the plaintiff's costs as agreed or assessed. 3. I grant liberty to the parties to approach my associate within 21 days of this date if any alternate costs order is sought.

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: 23 August 2019