Cole-Herring v Bourke - [2019] NSWDC 391 - NSWDC 2019 case summary — Zoe

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Cole-Herring v Bourke

[2019] NSWDC 391

District Court of NSW|2019-07-11|Before: Mr J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2019-07-11

Before

Mr J

Catchwords

TORTS - negligence - motor vehicle accident
[1995] HCA 5 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383

Source

Original judgment source is linked above.

Catchwords

TORTS - negligence - motor vehicle accident[1995] HCA 5 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383

Judgment (57 paragraphs)

[1]

Table of Contents Factual background and nature of case [1] - [6] Issues [7] Evidence overview [8] - [9] Credibility and reliability of testimony [10] - [59] The plaintiff [11] - [31] Ms Cole [32] - [35] Reliability of aspects of defendant's medical reports [36] - [59] Facts [60] - [183] (1) Plaintiff's pre-accident background [61] - [63] (2) Pre-accident health [64] - [80] (3) Pre-accident work history [81] - [86] (4) Circumstances of injury [87] - [96] (5) Injuries and initial treatment as documented [97] - [105] (6) Subsequent treatment [106] - [110] (7) Medical and allied reviews [111] - [112] (8) Resolution of conflicting medical opinions [113] - [121] (9) Resolution of conflicting occupational therapy opinions [122] - [130] (10) Disabilities that remain [131] - [145] (11) Work effects [146] - [157] (12) Domestic effects [158] - [171] (13) Mitigation of damage [172] - [176] (14) Most likely circumstances but for injury [177] - [182] Assessment of damages [184] - [264] Non-economic loss [186] - [197] Past economic loss [198] - [213] Future economic loss [214] - [218] Past domestic assistance [219] - [235] Future domestic assistance [236] - [247] Future treatment expenses [248] - [262] Past out-of-pocket expenses [263] Summary of damages assessment [264] Disposition [265] Costs [266] Orders [267]

[2]

Factual background and nature of case

At about 6.00am on Thursday 10 April 2014, the plaintiff, Ms Emily Cole-Herring, then aged 26 years, was involved in a motor vehicle accident in which she sustained a 60 per cent compression fracture of the vertebral body of T12 with a displaced fragment, some related soft tissue injuries to her lower back, and possibly, a head injury causing a brief period of loss of consciousness.
At that time, the plaintiff was a passenger in her own vehicle which was being driven on the Barrier Highway near Cobar, NSW, when another vehicle displaying high beam headlights and being driven in the opposite direction by the defendant, Mr Joshua Bourke, crossed over onto the incorrect side of the roadway and collided with the plaintiff's vehicle, thereby causing her vehicle to leave the roadway and roll over several times.
As a consequence of that collision, in these proceedings the plaintiff claims damages for personal injury occasioned by the defendant's now admitted negligent driving, which has caused her to suffer the described injuries.
An unusual aspect of this case is that the plaintiff's injuries were superimposed upon the residual effects of an earlier illness where she had been cured of leukaemia following chemotherapy. That chemotherapy resulted in the need for the plaintiff to have pre-accident joint replacement surgery due to avascular necrosis in both of her knees and in her left hip. This had also resulted in the plaintiff acquiring an iatrogenic addiction to narcotic drugs for pain relief.
As a result, the plaintiff's ability to enjoy the amenity of her life, which had already been significantly affected by those underlying conditions, was further adversely affected by the effects of the subject accident. In that regard the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].
The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act") and the Civil Liability Act 2002 (NSW) ("CL Act").

[6]

The plaintiff

The defendant sought findings that the plaintiff should not be accepted as a witness of truth, and that her evidence should not be accepted at face value. The defendant further submitted that she was an unreliable witness. It was further submitted that as such, her self-reported complaints should not be accepted: MFI "7", paragraphs 2 - 7. I have not accepted those submissions.
It appears that the defendant took that approach notwithstanding that the medical experts retained on behalf of the defendant, had to varying degrees supported aspects of the plaintiff's case. In that regard, none of the medical and allied experts who had examined the plaintiff made any suggestion that the plaintiff had exaggerated her complaints. The preponderance of the medical evidence was to the effect that the plaintiff's complaints were reasonably made, without inconsistencies.
Having heard and seen the plaintiff's evidence, especially when cross-examined, I was left with the impression that her evidence concerning the manner in which the accident had adversely affected her, was understated.
In cross-examination, the defendant made a series of credit challenges to the plaintiff's evidence, as follows: 1. When she was interviewed by the police who attended to investigate the accident, she had deliberately lied in her answers by incorrectly telling the police she was the driver of the vehicle: T40.45 - T41.11; 2. She had lied to the attending police officer and later maintained that lie to the effect that she had not taken any illicit drugs before the accident: T42.15 - T43.18; 3. Before the accident she had been addicted to narcotic medication, a matter she acknowledged, but denied buying such drugs "on the street" before the subject accident, but she acknowledged that she had taken some illicit drugs recreationally before the accident: T44.42 - T45.20; 4. She had made up evidence to benefit her case, namely her evidence that before the accident she had been discussing the prospect of undertaking an apprenticeship with her father. She denied having made up that evidence: T57.41; 5. Her evidence that she had not driven a motor vehicle since the accident was untrue and that she had given that evidence deliberately, because she thought it might assist her case, an assertion that she denied: T62.16 - T62.19; T64.42; 6. She had deliberately and incorrectly told examining doctors that she needed to be driven to various appointments because she thought it would assist her case: T64.42 - T65.19; 7. Whilst in Darwin in 2015, she had gone from medical practice to medical practice to seek additional prescriptions for Oxycontin, a narcotic drug: T66.42 - T67.7.
Those credit attacks will be considered shortly, after making some relevant observations about the plaintiff.
In considering the credibility and the reliability of the plaintiff's evidence, it is relevant to say something about her demeanour. She gave significant parts of her evidence in a state of emotional upset and physical discomfort. Some of those moments were palpably apparent, and were noted in the transcript: T17.10 - T17.16; T17.45; T29.18; T37.34; T52.8; T66.30; T66.36.
Some of the plaintiff's evidence was given hesitantly, when she sought to take time to find words when she had difficulty in finding the words to express herself: T17.13. This was in circumstances where she felt mentally blunted, or not as sharp as she used to be before she had undergone repeated cycles of chemotherapy, and because she had been taking medication: T30.1 - T30.3; T73.25 - T73.29. The uncontradicted evidence of an oncologist retained by the defendant, was that "chemo brain" or "chemo fog", or cognitive impairment, was a common consequence of the type of pre-accident chemotherapy the plaintiff had undergone for the treatment of her leukaemia: Exhibit "1", pp 22 - 23.
In this context, it is also relevant to say something about the manner in which the plaintiff was cross-examined by counsel for the defendant, where it was known that the plaintiff was slow in formulating her answers to questions, and where at times, the pace of questions asked in cross-examination was rapid, and had the effect of cutting off the plaintiff's partly completed answers by introducing a new question: T43.23; T45.24; T46.5; T46.49; T48.22; T49.4; T49.29; T53.49; T54.22; T55.30; T56.44; T57.24; T63.30; T67.22; T68.30; T69.1; T71.7; T73.50; T75.11; T75.32. On several occasions counsel for the defendant was directed to desist from interrupting the plaintiff's answers: T55.41; T62.23; T74.15.
Some of the questions asked of the plaintiff in cross-examination created scope for confusion in the plaintiff, for example, especially where double questions were directed at her under the pressure of the circumstances.
The foregoing matters require a cautious approach to evaluating the defendant's credit-based criticisms of the plaintiff's evidence.
Returning then to the consideration of the credit challenges made to the plaintiff's evidence as outlined at [14] above, and for convenience, by reference to the same sub-paragraph enumeration of those challenges, my conclusions concerning those attacks are as follows.
As to the lies the plaintiff told to the attending police officer as identified in sub-paragraph (1) of [14] above, she had been placed under considerable duress to falsely claim that she had driven the vehicle. The actual driver had applied that pressure to her at a time when she was in significant pain, distressed, and had little resistance to that pressure. Those circumstances are examined in more detail in my fact findings concerning the circumstances of the accident. It is sufficient to here add that at hospital, soon afterwards, she disavowed that lie when the driver of the vehicle was no longer able to keep pressuring her to make that false claim.
The plaintiff acknowledged that she had lied to the attending police officer about taking illicit drugs before the accident as identified in sub-paragraph 14(2)(2) of [14] above. Whilst it was discreditable that she did so, her actions must be viewed in the context of having been pressured to claim that she was driving, and the perhaps instinctive response to seek to avoid trouble. Once she had initially lied, she had the dilemma of how to extricate herself from a difficult situation. I am persuaded by her evidence that she addressed this question truthfully in her evidence when she made that cited acknowledgment.
The fact that the plaintiff had acknowledged her addiction and had acknowledged that she had bought illicit drugs before the accident, as identified in sub-paragraph (2) of [14] above, does not, as a matter of course, require that the other evidence she gave as to her injuries and disabilities be rejected as untruthful, or that it would otherwise require corroboration. She gave the evidence cited with considerable embarrassment, which I gauged to be genuine.
The plaintiff's denial of having made up evidence about her intention to pursue an apprenticeship with her father in order to advance her case, as identified in sub-paragraph (4) of [14] above, was not the subject of convincing contradiction. Her evidence was not inherently improbable. The evidence relied upon by the defendant to support the asserted criticism, namely Exhibit "2", was overstated by the defendant.
Exhibit "2", a statutory declaration sworn by the plaintiff on 30 June 2017, was prepared for her by a solicitor as part of her full and satisfactory explanation for the late lodgement of this claim. It was prepared with the focus of explaining the delay in bringing her proceedings, a matter that was examined by another Judge in an interlocutory application: s 109 of the MAC Act.
At paragraph 27(b) of Exhibit "2", the plaintiff stated that she had left employment with her father in 2009 "because I wanted to do other work". That was after she had contracted leukaemia. The cited statement is not inconsistent with her later expressed desire to pursue an apprenticeship. I do not regard that evidence as impugning the plaintiff's credit as a witness.
The plaintiff's evidence of not having driven a motor vehicle since the accident, as criticised in sub-paragraphs (5) and (6) of [14] above, has to be viewed in context. That challenge was in the context of a double question asked by the cross-examiner when the plaintiff was trying to answer in the context of over-speaking which was occurring at that time. The plaintiff explained that she had driven "on the odd occasion", when her mother had not been able to drive her, but this was restricted to her immediate locality: T62.33.
In my view, the criticism cited in sub-paragraph (6) of [14] above was unfair because it was in answer to a triple or multi-faceted question: T65.42 - T65.43. The complete sequence of questions and answers on that topic presents a different picture to that which was sought to be painted by the defendant, as the transcript shows, at T64.42 - T65.9: "Q. When you told the doctors that you hadn't driven since the date of the accident, it was not only wrong, you deliberately gave those answers because you thought it would assist your case. That's right, isn't it? A. No, no, no Q. Well, why didn't you tell them you had been driving and you had had your license taken from you from time to time but you had been driving on each of those occasions where you happened to be caught? A. Well, they were asking me specifically about how I got to the appointments and that and that's how my mother took me to appointments, I don't - I don't feel comfortable travelling. In Bourke we have like a levy bank radius of probably three kilometres that way and four kilometres that way. So, like, pretty much, that's the - where I was driving around, that's bloody in four or five, six times that I've been driving that I've been caught, doesn't mean that I drive everyday, doesn't mean that I frigging travel to Dubbo or travel to Sydney or drive a significant amount of the way and if my mother wasn't able to drive me to the places that I was going then I wasn't able to walk and that's what - that's how come I've been done for so many times driving disqualified."
The criticism of the plaintiff having gone to multiple medical practices in Darwin to seek prescriptions for narcotic medication, as criticised in sub-paragraph (7) of [14] above, also has to be viewed in context. In my view, that challenge became somewhat muted in light of the evidence that at the time the plaintiff went to Darwin, she did so with a letter from her own doctor, yet she did not find it easy to obtain her prescribed medication. The matter was not further explored by the cross-examiner. The reluctance of medical practitioners to prescribe Oxycontin, a restricted narcotic drug, to a new patient they did not know, is not an inherently improbable scenario. The basal fact was that the plaintiff was in pain, which led to her seeking out pain relieving medication. I do not regard that matter as providing a significant basis for criticising her credibility.
I find that the challenges the defendant made to the plaintiff's evidence have not been materially sustained. Overall, I considered the plaintiff to be a generally reliable witness who gave credible evidence, which if anything, was understated as to the effects her post-accident disabilities had upon her. I have rejected the defendant's attack on her honesty as a witness, as will be further explained in those portions of my reasons that deal with relevant specific matters of contention.

[14]

Dr Machart - consultant orthopaedic surgeon

In the case of Dr Machart, one would also ordinarily expect that the taking of an orthopaedic history from a claimant such as the plaintiff, would necessarily involve reviewing and considering the plaintiff's subjective symptoms in connection with any findings made on examination. In that regard, Dr Machart included the following text in his report: "CURRENT SYMPTOMS Constant lower back pain to a lesser degree the thoracolumbar. Pain was aggravated by bending and by lifting. She was unable to participate in aspects of housework e.g changing nappies, vacuuming or cleaning. She lives with her mother and father in a house. EXAMINATION The client conducted all movements in an active manner. Where passive movement has been induced it has been recorded in the examination findings. No passive movements were performed beyond the limits of comfort. General Ms Cole-Herring was upset talking about her condition. She appeared to be anxious. She was moderately overweight. Thoracolumbar Spine There was a kyphotic deformity in the thoracolumbar region. This area was mildly tender. She was more tender over the lower lumbar spine. She displayed movement diminished by half from expected normal flexion, extension, lateral flexion and rotation. Tension signs were negative FNS, SLR. Reflexes were present and symmetrical in knees and ankles and absent at the hamstrings. Diminished sensation was reported over the sole of both feet. There was no loss of muscle bulk, to inspection and no weakness. INVESTIGATIONS None presented at the time of this consultation."
In his cited report, Dr Machart went on to express the opinion (Exhibit "1", p 15) that the plaintiff had sustained a thoraco-lumbar fracture at the level of T12, leaving her with chronic lower back pain and narcotic dependence currently on methadone. On the same page, he also stated that: "She is a chronic pain sufferer. From the orthopaedic point of view there is a fracture which will not be expected to cause the need for narcotic analgesics but it was expected to cause some degree of impact on physical prowess, diminution of ability to bend or lift. While there is chronic pain and narcotic dependence the severity of the symptoms cannot be attributed to the pathology. There is a direct relationship between the chronic back pain and the motor vehicle accident."
Dr Machart stated that there were no inconsistencies evident in the plaintiff's presentation or history. In expressing his opinions, he said that his prognosis for her situation was "for not much change in the severity of the plaintiff's symptoms in the future"; that there was "incapacity for physically demanding work" partly attributed to the motor vehicle accident, and that she was fit for sedentary duties. The details of those opinions will be assessed in more detail in connection with the assessment of the plaintiff's disabilities and her damages.
On that analysis, in the case of Dr Machart's report, as in the case of Dr George's report as identified at [54] above, where Dr Machart has plainly had regard to the plaintiff's subjective symptoms, notwithstanding the content of the cited qualifying statement, it also appears that the cited qualifying statement is an anomalously inconsistent inclusion in his report.
I now turn to identify my findings of fact.

[17]

(2) Pre-accident health

Until November 2009, the plaintiff's pre-accident health records show that she had minimal health issues: Exhibit "B", Tab 3R pp 134 - 176. In 1993 the plaintiff was diagnosed with infrequent episodic asthma. In 2005 she had an episode of acute sinusitis. There was nothing else of note in those records until 2009.
In November 2009 the plaintiff began to feel unwell. She consulted her local doctor and was promptly diagnosed with Acute Lymphocytic Leukaemia (ALL). She was flown to Westmead Hospital that same afternoon where she embarked on a course of 12 months treatment with serial cycles of chemotherapy which required her and her family to relocate to Sydney for a time. Fortunately, she has been in remission from that illness for a critical benchmark period of more than 5 years: T13.41. According to unchallenged expert opinion, she is now regarded as having been cured of her leukaemia: Exhibit "1", Tab 3, p 21.
The treatment for leukaemia undertaken by the plaintiff has unfortunately nevertheless led to her encountering other related health problems. In the past, these included many infections which occurred whilst she was immunosuppressed (T13.48) and she also had orthopaedic problems resulting from the effects of the high steroid doses that were required to treat her leukaemia: T14.20. Those problems led to a need for her to have bilateral knee replacements in 2011, and a left hip replacement in 2012. The left hip joint replacement had to be replaced again in 2013: T14.25; Exhibit "4".
The plaintiff's medical records show that on 22 June 2011, her treating orthopaedic surgeon prepared a letter outlining the need for her to have bilateral knee replacement due to the development of extensive osteonecrosis at the end of both femora as a consequence of her chemotherapy. He noted that at age 23 years, she was the youngest patient he had seen as needing this procedure, but he saw no alternative in light of the damage, her physical restrictions, and because of her need for large doses of the opioid drug Oxycontin to manage her resultant pain: Exhibit "7".
A further untoward complication from the plaintiff's orthopaedic complications was that she developed a pre-accident addiction to opioid drugs for pain relief: T16 - T17. The plaintiff had on occasion used illicit drugs before those events: T20.21. However, that was not an addiction.
Due to her orthopaedic issues, the plaintiff began to overuse prescription drugs for pain relief. She then began to misuse prescription drugs. She then started to use illicit prescription drugs: T17.18. Subsequently, she sought out illicit methamphetamine. The plaintiff's evidence concerning her illicit drug use for pain relief was the subject of a Certificate issued pursuant to s 128 of the Evidence Act 1995 (NSW), during the course of the hearing: T20.30. Her evidence on those matters, which was obviously embarrassing to her, was candid. I accept that evidence.
The medical records held by the plaintiff's general practitioners (Exhibit "B", Tab 3R, pp 134 - 175) shows that pre-accident, in the period between 1993 and 4 April 2014, she had consulted various practitioners in that practice on approximately 185 occasions mainly in relation to the after-effects of her leukaemia.
The majority of the post-leukaemia consultations included random health events such as infections, minor common ailments such as respiratory problems, health surveys, health maintenance, treatment for insect bites, contraception, and various minor injuries. No medical expert appears to have undertaken a complete review of those records for relevance to the issues to be determined in this case. It is therefore not necessary in these reasons to undertake a comprehensive or detailed review of the content of these notes except for what now follows.
In final submissions, counsel for the defendant made submissions that were critical of the plaintiff's legal advisors for not obtaining an explanatory report from the plaintiff's former treating general practitioner, Dr Heather Dalgety, to summarise those medical records and to explain some aspects of them. The absence of such a report was submitted by the defendant to be a failure to obtain relevant evidence on relevant matters where the plaintiff bore the onus of proof.
In my view, that criticism by the defendant becomes somewhat muted in light of the plaintiff's evidence that her former general practitioner is no longer in the practice where she consulted her in Bourke: T77.22.
In any event, in my view, the records, which are compendious and comprise typed albeit abbreviated consultation notes, are to a substantial degree, capable of reasonable interpretation on relevant matters of importance to the issues in this case.
In my assessment, the defendant's cited criticisms fade somewhat when it is recognised that the relatively few items in those notes which were the subject of cross-examination of the plaintiff and her mother, were adequately explained by the plaintiff.
I do not accept the defendant's submission that the plaintiff's evidence on critical matters in dispute requires corroboration. My reasons for rejecting that submission will be made plain in the context of my findings on the circumstances of the plaintiff's accident, in connection with her concession that she had initially lied to investigating police about the circumstances of the subject accident.
The plaintiff's medical records show that there were many recorded general practitioner consultations at which the plaintiff was given prescriptions for opiates and other pain relieving medication. The details appear in Exhibit "B", Tab 4, pp 266 - 311, which comprises a chronological print-out from the records of the Pharmaceutical Benefits Scheme. It is not necessary to catalogue those items or to examine the detail of them in these reasons.
Some of those occasions included prescriptions for benzodiazepines, for example, on 17 June 2010, 4 November 2010, 21 March 2013, 4 April 2013, 10 May 2013, 21 May 2013, 7 June 2013 and 18 June 2013. On other occasions she was prescribed amitriptyline. Without specific medical evidence as to the reasons for such prescriptions it would be unsafe to draw conclusions as to why and for what conditions those prescriptions were issued at those times as the undisputed expert medical evidence is to the effect that there could be multiple indications for prescribing such drugs: T204.24 - T204.31; Strinic v Singh [2009] NSWCA 15.
There are some documented crises and related matters in the plaintiff's pre-accident medical records, as follows: 1. On 21 October 2013, there was a documented concern that a significant issue had arisen as to the plaintiff's treatment in that a named doctor from that general practice whom the plaintiff had been consulting had been prescribing doses of narcotics and benzodiazepines in "doses, quantities and timeframes don't add up": Exhibit "B", Tab 3R, pp 174 - 175; 2. On 22 October 2013, the plaintiff was said to have been in crisis and was apparently upset at not being allowed to die when she had ALL (her leukaemia) and had "been depressed and anxious for several weeks", and it was noted that she was not willing to take antidepressants as they made her fat as before, when she had been on chemotherapy. 3. In that regard, the note made by the general practitioner was : "threatneing (sic) mother with a knife at throat": Exhibit "B", Tab 3R, p 175. Ms Cole could not recall this event: T98.38 - T98.40. It is possible that the note was ambiguous as to whose throat was involved in that reported episode. For example, it could have been a threat to self-made by telephone. It is not clear as to whether the note referred to the plaintiff being in her mother's presence at that time. Without explanatory evidence from the practitioner concerned, I am not prepared to speculate on that subject. I do not accept the submission that this was an essential matter of history that required a further factual or medical explanation especially as it occurred 6 months before the accident. There was no suggestion of the occurrence of any subsequent similar incident; 4. The general practitioner's records revealed the following historical matters that touched upon the plaintiff's pre-accident psychological status: 1. On 26 November 2010, the plaintiff was noticed to be "feeling down, mainly due to nausea & not eating very much": Exhibit "B", Tab 3R, p 151. On considering the evidence as a whole, this was very likely to be in connection to the recently completed chemotherapy treatment; 2. On 21 December 2010, in the context of the plaintiff having ankle swelling and using a motorised wheelchair she was noted to be "crying feeling very down": Exhibit "B", Tab 3R, p 153. On considering the evidence as a whole, this was very likely to be in the context of her chemotherapy-related orthopaedic problems at the time; 3. On 11 April 2011, in the context of the plaintiff feeling very stiff and sore in the morning, she was noted to appear to be "teary and upset": Exhibit "B", Tab 3R, p 158; 4. On 21 September 2012, in the context of the plaintiff having ceased painkilling medications, including opiates, she was noted to be "stressed & on the edge all the time" and seeming "close to tears" and being "quite aggressive & unpleasant & pointed" in speaking to her general practitioner: Exhibit "B", Tab 3R, p 169. An observation of that kind would not the unexpected in the context of drug withdrawal; 5. On 18 July 2013, in the context of the plaintiff's wound healing from repeat hip replacement surgery, and in the context of changes in her medication regime, including diazepam and opiates, the plaintiff was noted to be "getting panic attacks … panicky, upset and irritable, not like her previous depression": Exhibit "B", Tab 3R, p 174; 6. On 22 October 2013, in the context of some controversy that had occurred the previous day over the plaintiff's medication regime, she was noted to be "in crisis, threatening mother with a knife to throat" and was apparently upset at not being allowed to die when she had leukaemia: Exhibit "B", Tab 3R, pp 174 - 175. In my interpretation of this note, in conjunction with Ms Cole's evidence, I do not consider that it was the mother who was being threatened with injury, in person in the manner cited, as the plaintiff's stated issue at that time was that she had not been allowed to die.
In my view, that lastmentioned historical matter is of only limited, if any significance in this case because first, the behaviour occurred whilst the plaintiff was abusing drugs, secondly, the behaviour has not been reported as having been repeated, thirdly, the occurrence of the accident and the plaintiff's subsequent pregnancy, which I accept as having significantly changed her life and attitudes, have been significant and life-changing supervening events which places that isolated episode into the distant and irrelevant past: T24.48.

[18]

(3) Pre-accident work history

The plaintiff's pre-accident work history included three years of carrying out general duties, mail sorting and over the counter banking tasks at Bourke Post Office under the supervision of her mother who had a position there: T11.7 - T11.13. Before her accident she obtained work-relevant qualifications concerning the responsible conduct of gaming and the responsible service of alcohol, as well as a first aid certificate: T10.48.
The plaintiff has also worked for her father, a builder handyman in Bourke, between 2005 and 2009. In that employment she did various minor building and maintenance work. She left that work to pursue other opportunities: Exhibit "2". However, I accept that afterwards she continued to accompany him in his work and assist him from time to time without payment.
The plaintiff has worked in over the counter service and packing at a local supermarket in Bourke for about three years. She has worked as a bartender at the Bourke Bowling Club for about eight months doing over the counter serving and packing: T11.15 - T11.37.
Some of the plaintiff's employment positions overlapped. Prior to becoming seriously ill with leukaemia late in 2009, the plaintiff was earning a combined income in excess of $1000 per week net: T12.21.
After undergoing a degree of recovery from her leukaemia the plaintiff said that on occasions she did some unpaid general building maintenance because she realised building work was her passion: T14.39 - T15.3. She had decided that she wished to gain an apprenticeship to better equip her in that regard: T19.13 - T19.15; T38.36; T57.35. I accept the plaintiff's evidence on those matters.
At the time of the accident the plaintiff was in receipt of the disability support pension due to the residual effects of her earlier illness. Dr Barold presciently observed that absent a review of the certified reasons for the plaintiff's receipt of that pension it was difficult to draw definitive conclusions as to the medical reasons for that pension: T197.12 - T197.19.

[19]

(4) Circumstances of injury

The plaintiff had been a passenger in her own utility vehicle travelling from Dubbo to Cobar. There had been a stop on that journey, at a rest break area, about 30kms from Cobar. After continuing the journey for about 5 minutes after that rest break, at a time when she was seated in the middle front seat of her vehicle, the accident occurred.
At that time the plaintiff heard the driver of her vehicle utter an exclamation when confronted with the high beam headlights of an oncoming vehicle. The accident occurred very quickly thereafter. In those events, the defendant's oncoming vehicle displaying high beam headlights, crossed over onto the incorrect side of the road in a split second. The front of that other vehicle then clipped the plaintiff's utility, sending it into a series of three or four rolls, whilst the vehicle was both on and off the roadway: T21.12 - T21.34.
After the plaintiff's vehicle came to a stop, her companions had to smash the windscreen to remove her from the vehicle because the doors had become jammed. When she was removed from the vehicle, she slid over the bonnet, ran to the side of the road, and dived straight into the dirt at the side of the road. At that time she was in pain and in shock, having realised that "something was really wrong": T21.39 - T21.50.
The defendant did not challenge the above description of the accident circumstance as given by the plaintiff.
Instead, the defendant's credit challenge focussed on a different and earlier version of the events that the plaintiff had given to an investigating police officer at the scene: T41.6; T41.15 - T42.2. At that time the plaintiff had identified herself as the driver of the vehicle, however, soon afterwards at the hospital and later to her father, and then to her doctor, she stated that she had given a false version: T42.5 - T42.13; T41.45. At the time of the accident, the plaintiff was under the influence of illicit drugs and alcohol: T41.10 - T41.18.
Counsel for the plaintiff objected to a line of cross-examination on those matters on grounds of relevance. The questions were allowed because the subject was plainly relevant to the assessment of the credibility and the reliability of the plaintiff's evidence generally where the defendant had cross-examined the plaintiff about lies, as earlier analysed at [14] to [24] above.
The defendant sought to make much out of the plaintiff having initially lied about the circumstances of the accident. In that regard, in my view, the defendant's submissions were to the effect that the plaintiff's credit was damaged and that her evidence should not be accepted unless otherwise corroborated or supported. I find that those submissions overstated the position, and I do not accept them for the reasons that follow.
The plaintiff had refrained from driving in the events leading to the accident because of her earlier alcohol and drug consumption. In those circumstances, she had allowed the driver, a person named Paul, to drive her vehicle because he had assured her that he was licensed to do so, although, subsequently that claim by him turned out to be incorrect: T41.15 - T41.24.
The plaintiff stated that at the scene of the accident, whilst she lay injured by the roadside and in great pain, she had been placed under pressure or duress from the driver of her vehicle. In those circumstances, he had coerced her into giving the investigating police officer an incorrect version of events to say she had been driving the vehicle: T41.25 - T41.41. She explained that she did so at the coercion of the driver Paul because he had told her that he faced imprisonment for driving whilst disqualified, and he was worried as to what might happen to his children in those circumstances, and he wanted to avoid criminal sanctions at that time: T41.30.
I have given careful consideration to the plaintiff's evidence concerning the above matters in light of the defendant's credit challenges. I am satisfied that her evidence as cited in the preceding two paragraphs was truthful and I accept her evidence on those matters of fact.

[20]

(5) Injuries and initial treatment as documented

The plaintiff's first perception of having been injured was that she was screaming in pain, in shock, and she knew something was wrong: T21.48 - T21.50. She was at that time aware of pain in her lower back and when she was laying on the side of the road, she felt she could not move off the ground, and was frightened that she had done something to her pre-existing knee and hip replacements: T22.15 - T22.23.
There is some suggestion that the plaintiff had suffered a brief period of loss of consciousness in the accident: Exhibit "B", Tab 1A, p 1 (the report of Dr Kwong); Exhibit "B", Tab 3Q, p 132 (the report of Dr Sui).
Between 10 April 2014 and 14 April 2014, the plaintiff was an in-patient at Dubbo Base Hospital. The ambulance transport records and the full clinical notes of that admission were not tendered: Exhibit "B", Tab 3M, pp 118 - 119. In those circumstances, the full array of the usual primary sources of information that would serve to document the extent of the plaintiff's injuries is not included in the documentary evidence. In those circumstances it is difficult to determine whether the plaintiff in fact suffered some kind of head injury or a loss of consciousness, although she was an unrestrained passenger in the vehicle: Exhibit "5".
The available extracts from the hospital records, the imaging reports and the medical summaries contained in the medico-legal reports sufficiently document the nature and extent of the plaintiff's other injuries, as summarised below.
On 10 April 2014, at 12:45 hours, the plaintiff underwent x-rays of her cervical spine, chest, pelvis and abdomen at Dubbo Base Hospital: Exhibit "4". The lumbar spine x-ray revealed a slight kyphosis at T12 and a compression or crunch fracture involving the superior aspect of the T12 vertebral body with an approximate loss of height of 33 per cent. There was an apparent disruption of the posterior aspect of the vertebral body with slight posterior displacement of a superior fragment into the spinal canal. Pre-existing bilateral L5 pars defects were noted as was an associated L5-S1 spondylothesis. A CT scan was recommended for further evaluation.
On 10 April 2014, at 13:30 hours, the plaintiff also underwent an abdominal and pelvic CT scan at Dubbo Base Hospital: Exhibit "E". The reported finding of that scan was a compression fracture of the T12 vertebral body with an anterior central loss of height of approximately 60 per cent.
That scan was also reported as showing a posterior displacement of an upper posterior vertebral body fragment by 5mm, with an associated narrowing of the adjacent spinal canal. Other incidental findings were noted concerning pre-existing bilateral L5 pars interarticularis defects and only minimal associated spondylothesis.
At 22:10 hours on 10 April 2014, the Dubbo Base Hospital notes recorded that it was not possible to fully assess the plaintiff's injuries because she was agitated, combative, refusing to co-operate, and was in unbearable pain, and it was not possible to obtain a history from her. She had been given ketamine and fentanyl since 16:00 hours that day: Exhibit "5".
The plaintiff's T12 crush fracture was treated conservatively with a thoraco-lumbar orthosis. The plaintiff remained in hospital for 4 days and was then discharged.

[21]

(6) Subsequent treatment

Following her discharge from hospital the plaintiff appears to have remained under the care of her general practitioner and she occasionally attended for hospital out-patient review and further imaging studies.
On 24 October 2014, the plaintiff underwent a thoraco-lumbar spine and pelvis x-ray which revealed a mild scoliosis concave to the right that was centred at the level T12 and concave to the left centred at the level L4. The crush fracture of the T12 vertebral body was noted and the plaintiff's left hip prosthesis was noted to be in situ without evidence of complication. The reported finding of a scoliosis had not been evident on previous films: Exhibit "4".
On 24 October 2014, a Dr Stoltz made a single page handwritten abbreviated note in the Dubbo Base Hospital Progress Clinical Noes. That single page was tendered by the defendant: Exhibit "6". It suggests Dr Stoltz viewed the x-ray taken that day and described in [101] above. Materially, Dr Stoltz interpreted it as showing a 50 per cent loss of vertebral body height at T12, and a healed fracture, and the presence of a kyphotic deformity of less than 30 degrees, and no listhesis. At that time the plan was for the plaintiff to undergo core muscle strengthening and for a pain team review to be organised by the treating general practitioner.
A review of the plaintiff's post-accident records from the plaintiff's general practitioner reveals that there is no correspondence between that practice and specialists, apart from a letter dated 16 May 2016 from Dr Claire Sui, a pain management and rehabilitation specialist who, via Telehealth, gave the plaintiff advice on pain management and opiate intake reduction in conjunction with her pregnancy which had been diagnosed by that time. She also gave the plaintiff advice as to accessing a pain management website: Exhibit "B", Tab 3Q, pp 132 - 133.
A review of the medico-legal reports that summarise the plaintiff's history of treatment, shows that the plaintiff received very little in the way of specialist treatment, most probably due to her remote location, difficulty travelling to larger country centres where specialists were more readily available, and because of her impecuniosity, as she explained in her evidence: T71.7 - T71.18.

[22]

(7) Medical and allied reviews

The plaintiff underwent post-accident medical and allied assessments according to the following chronology: 1. On 1 February 2016, the plaintiff's general practitioner, Dr Heather Dalgety, referred the plaintiff to Dr Claire Sui, a consultant in rehabilitation medicine. Dr Dalgety noted: "Sadly, Emily remains on oxyxontin (sic) 60mg daily & it has been impossible to wean her down. I strongly suspect she had intercurrent depression but she refuses antidepressants & counselling, which were previously in place during her ALL treatment". At that time the plaintiff was being prescribed Diazepam 5mg and Oxycontin 20mg Slow Release tablets: Exhibit "B", Tab 3N, pp 120 - 121; 2. On 18 April 2016, the plaintiff's general practitioner, Dr Dalgety, referred the plaintiff to Dr Keerthi Perera. Dr Dalgety was seeking to share the plaintiff's care with Dr Perera and advised her that the plaintiff "has developed addiction to painkillers & a pain specialist review in Orange is pending. Meanwhile I am slowly weaning down her analgesia". The letter was incompletely copied. The context of the referral was the plaintiff's pregnancy, which I infer from Dr Dalgety's reference to "size by dates" on foetal heart sounds and movements: Exhibit "B", Tab 3O, p 122; 3. On 11 May 2016, the plaintiff's general practitioner signed a MACA medical certificate: Exhibit "B", Tab 3P, p 131; 4. On 16 May 2016, the plaintiff was assessed by Dr Sui. Dr Sui assessed the plaintiff in a Telehealth consultation on that day. Dr Sui noted the plaintiff's pregnancy at 25 weeks gestation and her medical history. From the viewpoint of her specialty, she inferred from the plaintiff's loss of consciousness and amnesia in the events of the accident that this was "suggestive of a mild traumatic brain injury with some mild problems with memory". Dr Sui noted a plan to reduce the plaintiff's Oxycontin dosage to 5mg per week and advised minimal use of Lyrica (an anticonvulsant) due to her pregnancy. Psychologist and physiotherapy consultations via Telehealth were suggested. Dr Sui had assessed the plaintiff's physical movements via the Telehealth method and noted that the plaintiff's squatting ability was limited by her pregnancy: Exhibit "B", Tab 3Q, pp 132 - 134; 5. On 23 January 2018, at the request of the State Insurance Regulatory Authority, Assessor Inglis Synott, a consultant psychiatrist, assessed the plaintiff's post-traumatic stress disorder and her adjustment disorder with anxiety and depressed mood at no more than 10 per cent: Exhibit "B", Tab 2B, pp 95 - 103; 6. On 25 January 2018, at the request of the State Insurance Regulatory Authority, Assessor Ian Meakin, a consultant orthopaedic surgeon, issued a MAS Certificate which assessed the plaintiff's degree of impairments at 15 per cent: Exhibit "B", Tab 2A, pp 85 - 94; 7. On 9 August 2018, at the request of her solicitor, the plaintiff was assessed by Dr Terry Kwong, a consultant physician and rheumatologist. Dr Kwong noted the plaintiff was independent with self-care, but had difficulty vacuuming, cleaning and ironing, and difficulty lifting and caring for her son. He also noted difficulty with carrying more than small items of shopping. He considered the plaintiff gave a clear history, without exaggeration. After reviewing the clinical records and his findings on examination, Dr Kwong identified his diagnosis (at p 5), to be that of thoracic vertebral fracture at the level T12 with a 60 per cent reduction in vertebral height as documented on CT scan, a lumbar strain, and chronic pain due to vertebral fracture requiring longterm narcotics, the current treatment being with methadone. He considered (at p 6), that the plaintiff was not fit for any duties as a consequence of the accident. His prognosis was guarded after the lapse of 50 months since the accident and he considered the problems were permanent. He also recommended a range of treatments and noted (at p 7), that the plaintiff needed domestic and handyman assistance, the extent of which should be assessed by an occupational therapist: Exhibit "B", Tab 1A, pp 1 - 9; 8. On 10 August 2018, at the request of her solicitor, the plaintiff was assessed by Associate Professor James Athanasou, a consultant vocational psychologist. He considered (at p 19) that the plaintiff has lost the capacity to cope with a range of skilled and unskilled occupations. His report will be analysed in more detail in the assessment of damages for economic loss: Exhibit "B", Tab 1B, pp 10 - 23; 9. On 11 September 2018, at the request of her solicitor, the plaintiff was assessed by Dr Gerard Barold, a consultant occupational physician. Dr Barold noted (at p 26), the plaintiff's then current medication regime of Neurofen and Panadol for pain relief as required, with daily amitriptyline for chronic pain and methadone for management of her opioid addiction "that she reported she developed following the subject accident". He made (at pp 27 - 28) a comprehensive list of the plaintiff's complaints of disability. Dr Barold considered (at p 30) that the plaintiff's prognosis was guarded and that she has reached the point of maximal improvement. He also considered (at p 30), that the plaintiff was unfit to return to any form of work as a labourer, bartender or customer service due to the subject accident, and in that regard, he identified a range of activities she should avoid, including repetitive or sustained neck or back flexion and extension, prolonged static posturing or forward flexing, bending, stooping, kneeling and squatting, with the lifting of weights being limited to 5kgs to waist level only, with the need for sitting and standing and rest breaks as required. He recommended (at pp 30 - 31), that the plaintiff be provided with physical treatments that, although not curative, should be directed at preventing deterioration in her functional capacity and her ability to enjoy the general amenities of life. His specific treatment and domestic assistance recommendations will be followed up in my reasons that deal with the assessment of damages: Exhibit "B", Tab 1C, pp 24 - 35; 10. On 22 October 2018, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Graham George, a consultant psychiatrist. Dr George reviewed the plaintiff's past medical history, including the residual effects of her leukaemia, the residual effects of the accident, and her history of drug abuse. He considered (at p 6) that the plaintiff has a persistent depressive disorder in the context of her leukaemia in 2009, but which was exacerbated after the subject accident. He also considered (at p 7), the plaintiff has an exacerbation of a persistent depressive disorder with predominant symptoms of post-traumatic stress disorder that has not been treated. He therefore considered the prognosis to be guarded. He considered (at p 8), she should be on a Mental Health Plan: Exhibit "1", Tab 1, pp 1 - 12; 11. On 24 October 2018, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Frank Machart, a consultant orthopaedic surgeon. Dr Machart considered (at p 15) that the subject accident has left the plaintiff with chronic lower back pain, and narcotic addiction and dependence currently managed with methadone. He considered (at p 15), that there was a direct relationship between the plaintiff's chronic back pain and the subject accident. He considered (at p 16), that there were no inconsistencies in the plaintiff's presentation and that the prognosis was for not much change in the future. He also considered (at p 16), that the plaintiff had a permanent incapacity for full physical activities but that she was fit for sedentary duties: Exhibit "1", Tab 2, pp 13 - 17; 12. On 21 November 2018, a Health Summary was printed out by the general practice in Bourke where the plaintiff sought medical consultations from time to time: Exhibit "B", Tab 3R, pp 134 - 251; 13. On 28 November 2018, at the request of the solicitor for the defendant, the plaintiff was assessed by Professor Richard Fox, a consultant oncologist. Professor Fox considered (at p 21), that the plaintiff's leukaemia had been cured, and considered (at p 22), that a relapse or recurrence was unlikely to occur. He also identified (at pp 21 - 22), neurocognitive and neuropsychological effects in longterm survivors of leukaemia and lymphoma due to intense chemotherapy, now recognised as "chemo brain or chemo fog" following treatment of the kind the plaintiff had received. He also identified, but did not quantify (at p 22), a statistically significant increase in mortality amongst surviving leukaemia patients: Exhibit "1", Tab 3, pp 18 - 26; 14. On 19 February 2019, at the request of her solicitor, the plaintiff was assessed by Ms Trudie Warner, a consultant occupational therapist: Exhibit "B", Tab 1D, pp 38 - 83; 15. On 28 February 2019, at the request of the solicitor for the defendant, the plaintiff was assessed by Mr Peter Williamson, a consultant occupational therapist. Mr Williamson's report, and his oral evidence, will be analysed in the context of the findings made in connection with the assessment of damages for past and future domestic assistance: Exhibit "1", Tab 5, pp 34 - 58; 16. On 12 March 2019, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Lewis Pierides, a consultant occupational physician. After reviewing (at pp 28 - 30), the plaintiff's past medical history, her injuries, her subsequent treatment, and his findings on examination, Dr Pierides addressed a series of questions that were presented to him by the solicitor for the defendant. He considered (at p 30), that the plaintiff had chronic pain prior to the accident. He noted (at p 31), that he did not take a psychiatric history. He stated (at p 31), that the plaintiff's healed T12 vertebral body fracture "might" cause her to experience "some mid to low back pain at times but the pain should not restrict her physical capacity in any significant way". That opinion was not the subject of explanatory reasons as required by UCPR r 31.23; r 31.27, Sch 7, cl 3(d). Dr Pierides made other comments (at p 31), that served to downplay the significance of the plaintiff's ongoing symptoms and stated that her prognosis from a purely physical perspective was good. Those comments, and other comments he made (at pp 31 - 33), and his opinions as set out in his joint report with Dr Barold, will be analysed in connection with the assessment of damages: Exhibit "1", Tab 4, pp 27 - 33; 17. On 3 July 2019, Dr Barold and Dr Pierides met and prepared a joint report which addressed a series of 9 questions in which they identified matters relating to the plaintiff upon which they agreed and disagreed. The analysis of their conflicting opinions will shortly follow and those matters will be analysed in connection with the assessment of damages: Exhibit "C"; 18. On 3 July 2019, Ms Warner and Mr Williamson met and prepared a joint report which addressed a series of 9 questions in which they identified matters relating to the plaintiff upon which they agreed and disagreed: Exhibit "D". Their report will be analysed after the analysis of the competing medical opinions.
The numerous consultations in the Medicare Schedule (Exhibit "B", Tab 4A, pp 262 - 265) and the numerous prescriptions in the Pharmaceuticals Benefits Schedule (Exhibit "B", Tab 4A, pp 262 - 303) were not referred to in detail either in evidence or in submissions, so it is unnecessary to seek to analyse those records in these reasons.

[25]

Joint report of Dr Barold and Dr Pierides

In their joint report (Exhibit "C"), Dr Barold and Dr Pierides expressed their respective opinions on the following matters of agreement and disagreement: 1. The plaintiff had a T12 vertebral fracture. Dr Pierides stated the qualified view that this was "possibly" 60 per cent when the available imaging had confirmed that it was in fact a 60 per cent crush injury. Dr Pierides did not initially extend his agreement to Dr Barold's formulation to the effect that the severity of the plaintiff's injury had also caused a mechanical straining injury to the plaintiff's lumbar spine; 2. On the subject of the healing of the fracture, Dr Pierides stated that the fracture had healed whereas Dr Barold referred to the concept of bony healing, but noticed that the anatomical disruption from the injury at T12 was expected to deteriorate over time; 3. Dr Pierides stated that the plaintiff's past treatment was appropriate, whereas Dr Barold gave qualified evidence in which he stated that the treatment had been reasonable but was limited because there had been limited physical treatments provided, and there had been no formal pain management programme; 4. Dr Pierides and Dr Barold agreed that the plaintiff would benefit from a formal pain management programme. However, Dr Pierides did not extend his agreement to include the other treatment modalities which Dr Barold had recommended; 5. Dr Pierides considered the plaintiff's pre-accident work prospects were minimal due to her prior medical history, whereas Dr Barold gave weight to the plaintiff's stated intention in returning to the workforce after treatment; 6. Whilst Dr Pierides ultimately acknowledged that the plaintiff had an incapacity directly related to the accident, Dr Barold thought the plaintiff's incapacity due to the accident precluded labouring work, bar work, or customer service positions. However, Dr Pierides considered the plaintiff had a significant incapacity due to her earlier leukaemia; 7. Both experts agreed the plaintiff's work incapacity was ongoing. Dr Barold went further, and identified an expected worsening of the plaintiff's condition over time due to accelerated degeneration of the condition of her spine at the level T12; 8. Whereas Dr Pierides thought the plaintiff was fit for work involving regular lifting of 10kg weights, and lifting 15kg weights occasionally, Dr Barold considered the plaintiff has a permanent unfitness for any form of employment resulting from her collapsed T12 vertebra, which required that she should avoid a significant range of physical activities; 9. Whereas Dr Pierides considered the plaintiff did not need any domestic assistance of any kind, Dr Barold offered a more reasoned view to the contrary.
In their concurrent evidence, the areas of disagreement became narrowed, and the basis of the stated disagreements between the opinions of Dr Barold and Dr Pierides became clearer, and more amenable to analysis.

[26]

Dr Barold's concurrent evidence

It was notable that, without hesitation or argument, Dr Barold identified and stated the limits of his expertise on matters that were raised during the course of questions: T168.25. I found Dr Barold's explanations on the matters that were within his expertise to be balanced and cogently stated on a number of important questions. These included matters such as: 1. Dr Barold's explanation for the mechanism whereby the plaintiff's T12 compression fracture would have caused injury to the surrounding soft tissues was clear and concise, a matter Dr Pierides did not initially accept until he was asked to comment on that view at T155.7 - T155.30: "WITNESS BAROLD: A compression fracture at any level in the vertebral spine including the T12 vertebrae basically has part of the body of the vertebrae fall upon itself due to the external forces that have been placed upon that part of the body and in normal circumstances with accidents such as been described by the - patient, the plaintiff, it tends to be an anterior compression and in some instances, people may call this a wedge fracture but in essence, it means part of the body falls upon itself more than another part and that creates a - instability within the spine and puts extra stressors and forces over time on surrounding tissues. BERAN: Thank you, your Honour. HIS HONOUR: In light of that explanation provided by Dr Barold, Dr Pierides, looking at the - your answer to question 1, you conclude that the only injury that was sustained in the accident was the T12 vertebral fracture? WITNESS PIERIDES: Correct. HIS HONOUR: Dr Barold has gone - gone further and said that there was - the injury was sufficiently severe to cause a mechanical straining of the lumbar spine. Do you agree with that opinion and if not, why not? WITNESS PIERIDES: You can't have a fracture like that without having a soft tissue injury surrounding it, number one. So that's at the initial phase." 1. Dr Barold cogently explained that after bony healing of a vertebral fracture occurs it was inevitable the condition is likely to deteriorate due to degenerative changes surrounding the fracture site: T164.9 - T165.3; 2. Dr Barold gave cogent reasons for giving diminished weight to Dr Pierides' reliance on some articles Dr Pierides had produced in the course of his evidence where he identified a simple case study to support his opinion on the plaintiff's prognosis. Dr Barold described the articles as lacking statistical validity: T170.22. Dr Pierides did not respond to that analysis to show that the articles comprised a reliable comparison to the plaintiff's situation; 3. Dr Pierides ultimately agreed with Dr Barold's explanation of the effect of the distortion and possible deterioration in the mechanical function of the plaintiff's spine, but his agreement was limited, and qualified by notions of expectant optimism: T174.22 - T175.27. In that regard, Dr Barold's cogent explanation, at T174.22 - T174.30, was as follows: "WITNESS BAROLD: Basically the whole mechanical situation is distorted because of the malalignment of the vertebra in that region, so that causes extra stresses and forces on the surrounding bones and soft tissues, and as I've already mentioned in previous notes, essentially that will continue to create extra pressures and further degeneration in an accelerated fashion, increasing the symptomatology of the individual, but it's impossible to determine the speed at which all of that will happen but again, a 60% compression fracture is significant and therefore, my expectation would be that it - there would be increasing disability and impairment sooner rather than later." 1. Dr Barold gave a cogent explanation of the inter-relationship between the physical and the psychological factors that come into play with an individual's experience of pain, and Dr Pierides accepted that explanation as valid: T176.30 - T177.6; 2. Dr Barold gave a cogent explanation of how the displaced bony fragment in the plaintiff's spine could impinge on her spinal cord at some point in the future. Dr Pierides did not seem to accept the radiological report showing a 5mm encroachment into the spinal canal, which Dr Barold thought increased the likelihood of a more severe disability developing: T179.16 - T181.42; 3. Dr Barold considered that the development of a scoliosis in the plaintiff's spine due to muscle spasm in October 2014 was significant, and Dr Pierides ultimately conceded that the plaintiff's scoliosis was accident-related: T184.5 - T184.29; 4. Dr Barold's explanation for a prognosis of increasing deterioration in the plaintiff's spine was convincing, and Dr Pierides' answers casting doubt on that scenario were based on what I interpret to be understatement and undue optimism, as cited from T184.45 - T185.16, as follows: "WITNESS BAROLD: And with that the basic reaction is that it will continue to be an issue because there's no marching backwards. The degree of compression is permanent. The forces that are associated with that anatomical abnormality are persistent, and therefore, over time, there's going to be more and more reaction and the patient's condition will deteriorate. BERAN: That's in addition to the deterioration you've previously referred to as to this increased risk of osteoarthritis and the like. WITNESS BAROLD: Post traumatic arthritis. Essentially, it's a combination of all of those factors. BERAN: Dr Pierides, do you have anything to say about that? WITNESS PIERIDES: What Dr Barold says is a potential and a possibility. As I said earlier, I'm more optimistic that with appropriate strengthening program that her back will stabilise and it will be much less likely to have any ongoing long term problems now. As you said earlier, she hasn't had her exercise program and I think that that would be very helpful in stabilising the back and preventing the other stresses and strains on the joints and the discs that occur. And that's the whole point about having a - a strong back is that you minimise the likelihood of long term..(not transcribable)..minimising pain." 1. Dr Barold's opinions were supported by comprehensive notes of his examination and his record of the plaintiff's history of complaints: T192.30. In contrast, Dr Pierides' opinions did not have a foundation based on such a detailed record of complaints; 2. Dr Barold's evidence did not raise any concerns as to its cogency, or its reliability.

[27]

Concurrent evidence of Dr Pierides

On hearing and reviewing the evidence of Dr Pierides I have concluded that his evidence on matters in contention was unreliable on multiple levels. In my view, the genesis of that view was that Dr Pierides' evidence was based on doubtful foundations because unlike Dr Barold, he had admittedly omitted or failed to record the plaintiff's presenting complaints: T187.30 - T187.43. In my view, this omission has led him to adopt an incomplete baseline understanding of the plaintiff's ongoing problems.
Dr Pierides did not initially include in his analysis any consideration of the soft tissue injuries that accompanied the plaintiff's compression fracture of T12, a matter that he later accepted, but not as to degree. He also appeared not to give sufficient weight to the plaintiff's complaints of chronic pain. He relied upon evidence comprising epidemiologically low level published articles to seek to support his argument and in doing so, raised specious and untenable arguments that bore little if any valid comparison to the plaintiff's injury, as those articles did not study any populations that had undergone chemotherapy. He was argumentative in his oral evidence to the extent of over-speaking in the face of questions he was being asked to address: T153.21; T155.34; T165.25.
I therefore found Dr Pierides to be an unimpressive witness. I consider his evidence to be less reliable than that of Dr Barold whose evidence I accept, for the reasons that follow: 1. When asked to explain the basis of his opinions he retreated to his "experience" as the basis for his views rather than providing cogent rational support for his difference of opinion compared to Dr Barold's explanations for his views: T165.19; T165.41; T174.48 - T174.49; T204.8; T209.23. 2. His explanation for limiting the plaintiff's claim for domestic assistance needs to 24 weeks, which was below the statutory threshold that attracted compensation, and which he "calculated [24 weeks] as a reasonable amount of time", was artificial, and appeared to have been based on a limited theoretical consideration that was not counter-balanced with scope for variation, and it was focussed on a narrow interpretation of x-ray evidence that suggested healing: T150.24 - T151.4; 3. As already identified, he adopted what appeared to be an unjustified and understated qualification of a "possibly 60 per cent" loss of vertebral height from the plaintiff's T12 fracture where there was undisputed radiological opinion evidence of an actual 60 per cent loss of height: T152.15 - T152.21; 4. He seemed reluctant to readily make an appropriate concession that x-ray signs did not necessarily equate to symptoms: T153.13 - T153.27; 5. He was belated in his ultimate concession that the plaintiff had a soft tissue injury to her spine in the area surrounding her T12 fracture: T155.30; 6. He abandoned his disagreement with Dr Barold on a question relating to the description of the plaintiff's injury when he was asked to explain why he was in disagreement, and he answered "No, I agree then" without giving reasons for that changed view: T157.14; 7. His argument in which he sought to make a distinction between a healed and a stable fracture became diluted during questioning: T175.17 - T158.45; 8. He gave apparently inconsistent answers about the x-ray evidence he had viewed when he gave his initial opinion. At one point he said he "didn't see the x-rays as such" (T152.19) yet he sought to make a comparison of such evidence with a later x-ray taken on 24 October 2014: T158.17; 9. He avoided a direct answer to a question about the appropriateness of the plaintiff's treatment when asked to comment on Dr Barold's more expansive evidence on that topic: T160.23 - T161.7; 10. He sought to rely on articles containing case studies of limited relevance to confirm his arguments, and in doing so, used low level evidence that he had not included in his report: T167.12; T167.36; 11. In the context of the articles he belatedly produced, without prior notice, he introduced a confounding factor into the discussion of the plaintiff's injury by stating that a burst fracture was the same as a wedge fracture or crush fracture in circumstances where Dr Barold had not been given the opportunity to consider that matter beforehand: T168.4 - T168.31; 12. Without adequate explanatory reasons, and in my view unconvincingly, he downplayed the prospect of future deterioration in the plaintiff's spine as first, being unlikely, and then being more likely, but not involving a significantly greater likelihood: T169.10 - T169.26; 13. Initially, he incorrectly argued that the plaintiff's T12 fracture did not involve a posterior displacement of a fragment of bone when that description by him was plainly inconsistent with radiological evidence that the plaintiff had a posterior displacement of the upper vertebral body, which involved the related fragment being displaced by 5mm, and with an associated narrowing of the spinal cord. Once he was taken to that radiological finding (Exhibit "E"), he agreed there was such displacement (T172.33) yet he sought to argue that because there were no neurological findings, it was not a more serious case: T172.35 - T172.45. In my view, that answer seemed inconsistent with the plaintiff's recorded complaint of her experience of occasional tingling in both feet, as was recorded by Dr Barold (Exhibit "B", Tab 1C, p 27), this being a matter Dr Pierides did not note in his own report. In fact he made no note of the plaintiff's current complaints at the time he examined her; 14. His explanation for his disagreement with Dr Barold about the prospect of the plaintiff developing increased back disability in the future in the presence of mechanical disruption of tissues (T174.22 - T174.30) was based on general notions of inability to predict the future, and his more optimistic view was based on his "experience over the years" and an assumption of the beneficial effects of exercise: T174.46 - T175.44. In my assessment that was not an adequately balanced view; 15. In that regard, his more benign opinion was based on notions of "hopeful" expectation rather than cogent reasons: T193.43; 16. His view that since the displaced fragment in the plaintiff's spine would not affect her in the future because it hasn't affected her until now was given without viewing the relevant scan, and was therefore of diminished reliability: T180.24 - T181.31. When an explanation for that view was sought he initially gave a limited and incomplete explanation, and when questioned further, he later acknowledged the possibility that the fragment in the plaintiff's spine could progress backwards and touch the spinal cord, and could then cause symptoms of compression to the cord: T180.35 - T181.11; 17. He sought to discount Dr Barold's prognosis for the development of post-traumatic arthritis (T184.34 - T185.5) with a more optimistic view of only a possibility of such a development, based on the anticipated future beneficial effects of a long delayed and yet to be implemented exercise programme: T185.11 - T185.16; T193.41 - T193.45; 18. Dr Pierides' opinions were not based on any conventionally recorded history of complaints of pain, as he fairly conceded, he did not document or describe any complaints made by the plaintiff, in contrast to Dr Barold's comprehensive list, a matter Dr Pierides conceded to be an omission on his part: T187.30 - T187.44; T189.31 - T189.38. In my view this was a most significant omission; 19. His explanation for his opinion that it was unlikely the plaintiff would return to work after being on the disability support pension for so long before the accident, involved a process of superficial reasoning based principally upon her past unemployment, which was in my view an incomplete analysis: T204.10. I do not accept that analysis.

[30]

Conclusions from occupational therapists' evidence

In my view the practical evidentiary effect of that divergent approach has meant that Mr Williamson's analysis was based on the premise that the plaintiff, as a chronic pain sufferer, should not be approaching tasks with the perspective that pain is a barrier to performing commonplace activity: T130.15.
In my view, from the perspective of the assessment of damages, that is an unreasonable position from which to formulate the plaintiff's domestic assistance needs. It would be wrong to base estimates of the plaintiff's pain-related need for domestic assistance with everyday domestic tasks such as cleaning, laundry and washing, shopping, house and garden maintenance, and the like, on the basis that the plaintiff would have to bear a degree of pain or, take on the required tasks more slowly at the expense of enjoying the amenity of her life in order to avoid the expense of engaging either gratuitous or paid assistance to carry out those tasks.
In my opinion, the approach underpinning Mr Williamson's estimation of the plaintiff's accident-related need for domestic assistance has been influenced by that impermissible approach with the result that he has significantly under-estimated the plaintiff's need for domestic assistance. A prime example of this is his estimate of a need for 5 minutes per week for car washing (Exhibit "D"; secondlast page), when the evidence was, that practical task would take about an hour: T105.37.
The above analysis leads me to the view that Ms Warner's approach to the task of assessing the plaintiff's need for domestic assistance is more reliable as it is not afflicted with the theme of understatement that I consider to be evident in Mr Williamson's evidence.
That said, I also consider that the evidence of the plaintiff and that of her mother provides the most useful practical guide to the assessment of damages for past domestic assistance, although the occupational therapists' evidence serves as a useful framework to assist that assessment: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].
The assessment of the plaintiff's need for future domestic assistance is a more theoretical exercise because the evidence discloses that the plaintiff's living circumstances will most likely change after the conclusion of litigation when she receives damages that include allowances for her reasonable future needs, given the other calls that exist on the recourses that her mother has been providing.
That analysis will be guided by the cogent and relevant aspects of the opinions of the occupational therapists, as well as by the evidence of the plaintiff and Ms Cole.

[31]

(10) Disabilities that remain

Before the accident the plaintiff did not have pain in her lower back and she had no pain in her knees or in her hips: T21.1 - T21.9. The accident has not affected her knees or her hips, which have remained pain free: T27.43 - T27.47.
Since the accident, whilst the plaintiff has not experienced knee or hip pain when lifting items, she has found that activities such as pushing or pulling cause her to experience back pain: T28.29 - T28.42. When kneeling for prolonged periods she experiences discomfort rather than pain: T28.45 - T28.48. The knee discomfort from such situations is not related to her accident but is instead a function of her previous knee replacement surgery.
Following the accident, the plaintiff has been left with significantly discomforting back pain and stiffness after sitting for prolonged periods of time: T27.38 - T27.41. She experiences aches and tension in her body when she stands: T22.50. When bending over or maintaining a hunched position, such as when washing dishes, she experiences bad pain in her lower back: T28.11 - T28.27.
In her evidence, the plaintiff described her principal complaints of pain as being in the thoracic and lumbar regions, including stiffness on prolonged sitting or standing with tension and aching in association with pain: T27.50-T28.4; T28.18. She has difficulty with tasks such as lifting, bending and carrying. She has difficulty with many housework tasks requiring sustained efforts using a forward flexed posture. She has difficulty carrying shopping other than just small items. She has difficulty carrying out activities requiring pushing and pulling things: T28.31 - T28.36. Picking up her infant son causes her to experience back pain: T32.14. She also described experiencing reduced sleep due to frequent waking, tiredness and daytime sleepiness: T29.3. She experiences poor memory, forgetfulness, crankiness (T79.5), irritability, and she has gained 40kgs in weight from binge eating and reduced mobility: T29.34 - T30.3.
Given my acceptance of the plaintiff's credit, and my acceptance of her evidence generally, I propose to treat the plaintiff's history as summarised by the reporting experts in their respective reports as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995 (NSW). Similarly, and consistent with that approach, I have drawn upon the unchallenged content of those medical reports to identify relevant aspects of the plaintiff's history of her reported disabilities.
Significantly, the MAS Assessors, Assessor Meakin and Assessor Synott, considered that the plaintiff had cooperated with the assessment process without embellishment. Assessor Synott noted that at his assessment, the plaintiff was tearful, psychologically fragile, had low mood and had a forlorn appearance. He considered that the plaintiff had post-traumatic stress disorder, an adjustment disorder, with anxiety and depressed mood: Exhibit "B", Tab 2A and 2B, pp 89 and 99.
The practitioners who examined the plaintiff noted her history of continuing constant lower thoracic and lumbar pain, exacerbated by lifting her son, or carrying out any bending or twisting movements, and reduced sitting, standing and walking tolerance: Exhibit "B", Tab 1B, p 2. The plaintiff's comfortable sitting tolerance is limited to about 30 minutes and her comfortable standing tolerance is limited to about 20 minutes: Exhibit "B", Tab 1B, p 16.
I accept Dr Barold's detailed point-form summary of the plaintiff's current complaints, as set out at: Exhibit "B", Tab 1C, pp 27 - 28. In addition to the summary identified above, Dr Barold recorded a history of frequent pain in between the plaintiff's shoulder blades, constant low back pain, occasional numbness and tingling in both feet, difficulty lifting bending and carrying, restless discomfort on prolonged sitting, aggravation of symptoms on carrying out domestic tasks, sleep disturbance and awakening at night due to pain, anxiety when travelling in motor vehicles, depression, poor memory and poor concentration. He described the plaintiff's pain as chronic in nature: Exhibit "B", Tab 1C, p 30.
Ms Warner identified the prospect that the plaintiff faced developing accelerated degenerative changes in the thoracic and lumbar spines, which raised a guarded prognosis: Exhibit "B", Tab 1D, p 41. The results of Ms Warner's functional capacity assessments revealed significant restrictions in commonplace activities such as forward flexion, stooping, lifting, manual handling, and reaching overhead. Those restrictions would limit the plaintiff's future work potential: Exhibit "B", Tab 1D, pp 47 - 49.
Dr Machart noted the plaintiff's back symptoms were exacerbated by bending and lifting, including with flow on restrictions in carrying out housework. He observed a kyphosis of the plaintiff's thoracic spine and he observed diminished sensation in the soles of both of her feet. He also noted that she was upset whilst talking about her condition, and he also observed that she had an anxious appearance.
Dr George took a detailed history which included increased irritability and less frustration tolerance. He considered that the plaintiff had a depressive illness following her leukaemia, but that this condition was exacerbated by a persistent depressive condition and by ongoing symptoms of post-traumatic stress disorder: Exhibit "1", Tab 1, p 7.
The plaintiff's sleep is disturbed and limited due to her experience of pain from remaining still for prolonged periods. Her sleep is limited to 1.5 to 2 hours and this results in a need to take daytime naps: T29.1 - T29.8. She has become anxious, and doesn't "feel right": T29.18. She finds that she does not eat regularly and she eats in binge episodes, and she has gained about 40kgs In weight from being immobile and unable to exercise: T29.28 - T29.34. Her weight gain has nothing to do with her joint replacement surgeries as, pre-accident, she had managed to keep her weight down after those successive surgeries: T29.35 - T29.42.
As already observed, the plaintiff finds that her "memory is shocking", and she finds it hard to recall things spontaneously. She needs time to process and think about things as she is not as quick in her thinking as she used to be: T29.46 - T30.4; T73.37. It is difficult to determine whether this was due to a brief period of loss of consciousness at the time of the accident, as was recorded by Dr Kwong (at Exhibit "B", Tab 1A, p 1 and Dr Sui at Exhibit "B", Tab 3Q, p 132), or "chemo fog" as explained by Associate Professor Fox (at Exhibit "1", Tab 3, p 22).
The plaintiff does not socialise any more, and she spends a lot of her time indoors. She feels that a side benefit of this is that it assists her comply with her methadone programme: T31.50 - T32.2.
I reject the proposition as advanced by the defendant to the effect that the plaintiff has exaggerated her complaints. My impression is to the contrary. I find that but for the subject accident the plaintiff would not have been afflicted with these complaints.

[32]

(11) Work effects

The plaintiff has not worked since the subject accident. She has remained on the disability support pension since 2009. The plaintiff had a collection of tools in her shed which she had accumulated with the aim of doing maintenance work of the kind her father had undertaken: T68.50 - T69.1. However, she has not pursued her pre-accident ambition of seeking an apprenticeship with her father for gaining qualifications in building maintenance work.
That prospect is now practically out of the question in her present situation. Whilst her joint replacement surgeries would have necessarily limited the extent of such work, excluding working on ladders or at heights, she now also has additional limitations that are due to the subject accident.
The defendant did not materially challenge the plaintiff's evidence on these issues. The unchallenged medical and allied evidence, which I accept except where indicated, is instructive on the plaintiff's residual work capacity.
Dr Kwong considered that when he examined the plaintiff she was not fit for any duties: Exhibit "B", Tab 1A, p 6.
Associate Professor Athanasou considered that had the accident not occurred the plaintiff would have had the potential to work at least part time on a casual basis in a range of unskilled occupations, which he nominated. He concluded that since the accident, the plaintiff has lost the capacity to cope with a range of unskilled and manual occupations: Exhibit "B", Tab 1B, pp 18 - 19.
Dr Barold's report initially indicated that as the plaintiff was on a disability pension at the time of the accident, and unemployed, she was not seen as having any impairment to her past or future earning capacity: Exhibit "B", Tab 1C, p 33. That opinion was revisited in his oral evidence that was given concurrently with that of Dr Pierides.
Ms Warner identified a range of commonplace day-to-day activities that would be a cause of aggravation of the plaintiff's symptoms: Exhibit "B", Tab 1D, p 48. She considered that the plaintiff's range of functional restrictions will impact upon the type of work she would be able to perform long-term. She added that the plaintiff will remain limited to positions of a sedentary or light nature, with the ability to alter her position regularly. She also noted that the plaintiff's psychological symptoms would have an influential impact on whether she could realistically return to work: Exhibit "B", Tab 1D, p 62.
Assessor Synott noted the plaintiff's psychological symptoms and considered the plaintiff would be capable of working 10 to 20 hours per week in non-demanding duties but with some likely variability to attend on a regular basis: Exhibit "B", Tab 2B, p 103. That opinion obviously was not based on the plaintiff's physical problems.
Dr George considered that, on the basis of the plaintiff being in receipt of the disability support pension, and because she had not worked subsequently, that she would not work in the future: Exhibit "B", Tab 1, p 8. In my view, the reasoning for that opinion was insufficiently compliant with the requirements of UCPR Sch 7 cl 5(c) for that opinion to be reliable.
Dr Machart considered the plaintiff was permanently incapable of physically demanding work partly due to the effects of the accident. He "expected her not to be completely disabled but rather fit for at least sedentary duties": Exhibit "B", Tab 2, p 16. In my view, the reasoning for that opinion was insufficiently compliant with the requirements of UCPR Sch 7 cl 5(c) for that opinion to be reliable.
In his initial report, Mr Williamson considered that there were barriers to the plaintiff engaging in the paid workforce: Exhibit "B", Tab 5, p 57.
The initial report of Dr Pierides stated that the plaintiff had a significant incapacity for employment before the accident, and that her joint replacements would have excluded heavy physical work. In considering the effect of the accident, he considered she would have been limited to lifting 10kg weights regularly and 15kgs occasionally, and she would need to avoid prolonged forward flexion positions of the back: Exhibit "B", Tab 4, p 32. That view did not adequately take into account the cumulative effects of such tasks. In my view, Dr Pierides' opinion did not adequately deal with the effect the accident had on the plaintiff's residual earning capacity.

[33]

(12) Domestic effects

Before the subject accident, and after her successive joint replacement surgeries, the plaintiff had looked after her own needs with regard to activities such as cooking, cleaning, shopping, laundry, and washing her vehicle: T12.34 - T12.50; T18.39 - T18.50; T35.16 - T35.24; T36.32. She had also tended to her garden plants: T15.19; T37.4 - T37.10; T33.7 - T33.15.
Since the accident, in contrast to that position, the plaintiff has been left with significant physical restrictions that have hindered her ability to take care of herself and to carry out her previous domestic tasks. This was in three distinct phases.
First, whilst the plaintiff was in hospital, during the daytime, her parents sat with her and tended to her needs, including feeding, toileting, pushing her about in her wheelchair, moving her legs about to make her comfortable, and doing things for her on an ad hoc basis when the hospital nurses were not able to assist her because they were busy with other tasks: T34.1 - T34.30. Secondly, for the first 6 weeks after discharge from hospital, when the plaintiff returned to live at her parents' home (T34.43), she wore a thoraco-lumbar support brace. She could not apply that device by herself. She needed help with showering and dressing and similar tasks: T33.17 - T33.46. Thirdly, the plaintiff has continued to need domestic assistance after the initial 6 week period, but to a lesser extent whilst she continues to live in the home of her parents, where family members, mainly her mother, carry out tasks to assist her.
Since her discharge from hospital the plaintiff has remained at the home of her parents. Her mother cooks the meals other than sandwiches, which the plaintiff makes for herself: T35.1 - T35.11. Her mother does her cleaning and her laundry. Although the plaintiff can use a stick type vacuum cleaner but she has difficulty with motivation, and she experiences a lot of back pain, which is influential on the extent she carries out cleaning tasks. Her back pain prevents her from hanging out her washing. On occasions, her mother drives her to medical appointments and does her shopping because she finds it difficult to do that on her own: T35.38 - T36.48.
Dr Kwong considered that the plaintiff needed extensive domestic and handyman assistance, and some assistance with self-care and all aspects of domestic duties. That opinion was expressed in the context of malalignment of the thoracic spine due to the collapse of T12 which predisposed her to develop degenerative changes in the thoraco-lumbar spine: Exhibit "B", Tab 1A, p 7. Those opinions were unchallenged.
Dr Barold considered that the plaintiff will need domestic assistance on an ongoing basis with the expectation that this will increase as her condition deteriorates: Exhibit "B", Tab 1C, p 32. The quantification of the extent of that need and the calculation of its cost, is more within the remit of the occupational therapists' evidence.
In their initial reports, Ms Warner and Mr Williamson agreed that the plaintiff needed assistance with a range of domestic tasks. Those matters will be taken up in the assessment of damages for those matters.
I do not accept Dr George's psychiatric opinion to the effect that the plaintiff did not require domestic assistance because first, it was a matter outside his specialty, and secondly, his opinion to that effect was inadequately reasoned: UCPR Sch 7 cl 5(c).
Dr Machart, whose physical-based specialty perhaps qualified him to have a more relevant opinion whether the plaintiff needed domestic assistance, accepted that the plaintiff needed assistance with housework and other things, but he deferred to an occupational therapist the task of estimating the extent of that need: Exhibit "B", Tab 2, pp 16 - 18.
Dr Pierides initially did not accept that the plaintiff had a need for domestic assistance beyond an initial 24 weeks: Exhibit "B", Tab 4, pp 32 - 33. For the reasons I have provided at [117] to [121] above, I do not accept Dr Pierides' opinions as being reliable on this issue.
The plaintiff's mother, Ms Cole, runs a very busy household, presently comprising herself, the plaintiff's father, the plaintiff's sister and her son with special needs, as well as the plaintiff and the plaintiff's son. She receives a Centrelink carer's allowance of $100 per fortnight to care for her grandson with special needs: T91.7 - T91.24. She intends to return to work once the plaintiff is financially stable: T92.4; T104.40. She has a financial need to return to paid employment: T104.45. She and the plaintiff's father have gone through bankruptcy: T91.40. The evidence discloses that, she is not well: T38.1 - T38.10. In those circumstances it would be unreasonable to assume she will continue as before to provide the plaintiff with gratuitous domestic assistance after these proceedings have concluded.
Ms Cole said she effectively provided the plaintiff with all her domestic care needs for the first 12 months after the accident: T94.14. That care initially comprised an element of personal care whilst the plaintiff wore her brace for 6 weeks.
Thereafter, since the plaintiff has lived in the family home as distinct from the premises she alone occupied before the accident, Ms Cole has attended to most of the plaintiff's need for cleaning, changing bed linen, vacuuming, laundry, cooking, and meal preparation. The plaintiff attends to only minor tasks within her capabilities: T95.38 - T96.15.
These findings will be taken up and further analysed in connection with the assessment of the plaintiff's claim for damages for domestic assistance, also in conjunction with the expert opinions that are relevant to those assessments.

[35]

(14) Most likely circumstances but for injury

The plaintiff makes a claim for future economic loss. It is therefore necessary to identify the factual assumptions that base any assessment of such damages: s 126 of the MAC Act. Those findings now follow.
Section 126 of the MAC Act is as follows: 126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
In my assessment, but for the injuries sustained in the subject accident, the plaintiff's most likely circumstances would have been as follows: 1. Her addiction to and dependence on opioids, whilst it continued unabated, would have been a significant impediment to her exercising any earning capacity she might have had in the pre-accident period; 2. The fact that she was seeking out pain relieving medication on the streets, outside a prescribed environment and was also seeking other illicit substances, and converting solid opioid medication into injectable form, placed her health and her liberty at risk. Both of those matters would have had the potential to limit her pre-accident employability and her earning capacity; 3. At some indeterminate point in time, as often occurs in cases of drug addiction, it was very likely and most probable that a social or health crisis would have precipitated a need for health and addiction intervention from medical and allied practitioners. The therapeutic context would most likely have been an assessment that the plaintiff had a drug free background until her life-threatening illness and the circumstances of her addiction would have been recognised as being due to the need for strong pain relieving medication because of a series of related joint replacement surgeries. In that context, ideally, the plaintiff should have received drug rehabilitation assistance aimed at freeing herself of the burden of her addiction; 4. The timing and the type of crisis that precipitated a change in the plaintiff's situation of addiction was most likely to be of random occurrence, like that which occurred when she realised that she was pregnant in 2016; 5. The cumulative consequence of the above circumstances renders it impossible to precisely analyse when and to what extent if the subject accident had not occurred, the plaintiff would have become sufficiently freed from her addiction to give rise to an emergent and exercisable earning capacity; 6. In the meantime, she would have continued to receive a disability support pension due to her pre-injury circumstances.
It was unlikely, prior to the birth of her child in August 2016, a random event now crystallised in time, that the plaintiff would have been in a position to exercise any form of earning capacity in order to derive significant income.
It is possible that in the period following the birth of her child, and following her successful release from her addiction to opioids, albeit on a prescribed methadone treatment programme, the plaintiff may have been able to derive part-time earnings to a limited degree until the present time, whilst she consolidated the gaining of her freedom from the grip of her previous opiate addiction.
With the passage of time, it is highly likely that with the positive motivation that came from the birth of her son, who is now aged 3 years, and from the consolidation of her freedom from addiction, in addition to the obvious need to earn an income to meet her own and her child's need for support, that by now the plaintiff would have achieved employment, either in her locality, or in another major country centre such as Grafton, as she described: T88.20 - T88.21.
I now turn to the assessment of the plaintiff's damages.

[37]

Non-economic loss

The plaintiff submitted that damages for non-economic loss should be assessed in the sum of $350,000: MFI "1" and MFI "6". In contrast, the defendant initially submitted that the appropriate sum to be assessed for this head of damage was $150,000 (MFI "4"). The defendant later reduced this submission to $125,000: MFI "7".
The starting point for assessing the plaintiff's damages for non-economic loss is to recognise and to give effect to the legal principle that the defendant must take the plaintiff and her underlying situation as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18].
As already averted to at [4] and [5] above, it must be recognised that the plaintiff's pre-accident ability to enjoy the amenity of her life had already been reduced. The plaintiff's pre-accident amenity of life comprised a lesser whole than might otherwise have been the case.
In those circumstances, the impact of the accident on the plaintiff has created an additional or superimposed loss of amenity that further diminishes and adversely affects an already diminished amenity of life in a way she could ill-afford to endure, and which has caused her to have significant additional problems.
In that regard, the plaintiff's pre-accident situation was that in both physical and psychological terms, she was significantly affected by the residual effects of her leukaemia even though a cure for that condition had been achieved. The cost to the plaintiff of that cure was that her ability to enjoy the amenity of her life had been significantly and adversely affected, leaving her with some physical restrictions due to bilateral knee replacements and a left hip replacement, an addiction to painkilling medication requiring ongoing supervision and medical support in a methadone treatment programme, some degree of work restriction, some emotional effects as were from time to time noted by her general practitioner, and some adverse cognitive effects from "chemo brain" or "chemo fog" as explained by Professor Fox in his report as earlier cited at sub-paragraph (13) of [111] above. The plaintiff described the latter problem to be that she was not as sharp as before: T30.1 - T30.3.
Turning then to the effects of the subject accident, these have been more fully described in my findings concerning the plaintiff's remaining disabilities as set out at [131] to [145] above.
In my opinion, those accident-related additional deleterious injuries and disabilities, which the plaintiff could ill-afford to acquire, have significantly further damaged and interfered with the plaintiff's already reduced enjoyment and amenity of life. Those matters have to be weighed and evaluated in the context of some negative and positive vicissitudes that have, and will in the future possibly affect the plaintiff and her ability to enjoy the amenity of her life.
Amongst the potential negative vicissitudes that may face the plaintiff is the possibility that she might find herself in circumstances which may result in a relapse of her addiction to opiates in the event that in the future she may need strong painkilling medication. This could foreseeably occur in the context of a possible deterioration in her condition as was described by Dr Kwong and Dr Barold. If that were to occur, this would be a foreseeable consequence of the subject accident.
A further possible adverse vicissitude the plaintiff might face is a recurrence of her now cured leukaemia. On the evidence of Associate Professor Fox, this seems to be a rather remote prospect, but it must nevertheless be taken into account.
A significant positive and already crystallised vicissitude of benefit to the plaintiff has been the birth of her son in 2016. This has been a significant turning point in her life. As a result, she has managed to free herself of her opioid addiction in conjunction with a medically supervised methadone programme. Absent a possible medical need for strong painkilling medication, there seems to be no basis for inferring a likely reversal or a decline in that position.
Some further potentially positive vicissitudes are first, when this litigation concludes, the plaintiff will have sufficient funds to pursue medical treatment and other forms of assistance that have not been available to her because of her relative geographic isolation in Bourke, where treatment resources have been limited. Secondly, she is likely to move to be near her sister in the larger city of Grafton, where such resources are likely to be more readily available to her.
In my evaluation and balancing of those factors I consider that an assessment of non-economic loss should lean more towards the figure submitted on behalf of the plaintiff, but the assessment should not be at that figure. I therefore assess the plaintiff's damages for non-economic loss in the amount of $275,000.

[38]

Past economic loss

The plaintiff submitted that damages for past economic loss should be assessed in the sum of $100,000: MFI "1". In contrast, the defendant submitted there should be no monetary assessment for his head of damage.
In assessing those submissions in light of the underlying evidence upon which those submissions were based, it must be recognised that the plaintiff's previous leukaemia had undoubtedly left her with a number of pre-accident restrictions in her ability to exercise an otherwise full and unrestricted earning capacity.
In that regard, I do not discount the feasibility of the plaintiff's pre-accident intention to pursue an apprenticeship to acquire more formal skills in the building trade within her pre-accident limitations.
In the plaintiff's pre-accident circumstances, where she had remained on a disability support pension, whilst living in Bourke, absent the accident, it would most probably have taken some time for the plaintiff to be able to reach a point where she could achieve and exercise an emergent and quantifiable earning capacity.
Dr Pierides had assumed, in my view based on his unacceptable reasons, that the plaintiff was burdened by underlying restrictions that in his view indicated a significant incapacity for employment before the accident. Given the acknowledged limitations of his report, including an absence of any documentation of her presenting complaints, it is difficult to understand his rationale for that opinion where he took no history of the plaintiff's prior knee or hip problems and he did not seek to examine the plaintiff in those areas. I therefore consider that his opinions concerning the plaintiff's pre-accident earning capacity, and any changes in that pre-accident capacity caused by the subject accident, should be given very little weight, especially when compared to more acceptably reasoned and more reliable medical opinions to the contrary, and for that matter, including the plaintiff's own self-assessment of her earning capacity, which I accept.
From the vocational psychologist's perspective, Associate Professor Athanasou noted that the plaintiff had a pre-accident intention to return to work notwithstanding that she was in receipt of a disability support pension. That evidence reflected the plaintiff's evidence, which I accept.
Associate Professor Athanasou considered that the plaintiff's pre-injury vocational capacity was for remunerative employment in the range $725 - $1020 per week gross: Exhibit "B", p 21. He considered the plaintiff's capacity would have been for the pursuit of part-time work: Exhibit "B", p 21. This was also reflective of the plaintiff's own evidence which I accept. That said, I consider that Associate Professor Athanasou's evidence on this topic should be weighed and discounted by reference to the considerations identified above.
In my view, Mr Williamson's opinion on the plaintiff's earning capacity should be discounted. The plaintiff was motivated to work. She has at her disposal a tool collection that she could utilise. She is capable of lighter work tasks. Since 2016 she has had a dependent child, and she sees her future in a larger country centre rather than in Bourke, where, I infer, she would have greater opportunities to find employment within her capabilities.
In my assessment, but for the effects of her injuries, the plaintiff had some transferrable work skills. She was experienced in carrying out minor building maintenance and painting tasks. She held certificates for first aid, for responsible gaming and for responsible service of alcohol. These were industrial assets of value to an employee seeking suitable part-time positions in a variety of situations. Those skills would be of value to a range of prospective employers.
Mr Williamson conceded that the plaintiff's knee and hip joint replacements would not have precluded her from doing work that required prolonged standing, and instead, he considered that her predominant work restriction was from her back symptoms, which were accident-related: T118.33.
I am satisfied that the effects of the plaintiff's injuries have significantly damaged and interfered with her ability to seek out, gain and sustain part-time employment within her pre-accident capabilities. I find that but for the accident, and after the birth of her child in 2016, when she managed to come to grips with, and overcome the deleterious effects of her opiate addiction, she was well placed and well-motivated to work and to earn a living. I am satisfied she had an earning capacity and that her inability to pursue that earning capacity has been productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.
That said, some significant discounting factors must be taken into account when assessing damages for past economic loss. First, the plaintiff was domiciled in Bourke, a location with limited work opportunities given the comparatively small population in that place. Weighed against that factor was her intention to move to a larger city such as Grafton, where her sister lived. However, she had previously gone further afield, to Queensland, with her father, to pursue work opportunities. Secondly, it was not until the birth of her son in 2016 that she had managed to overcome and control her opiate addiction. Until that time, the prospect of her obtaining employment would have been unlikely. Thirdly, for a time after the birth of her son, who is now aged almost 3 years, as a result of the responsibilities of parenthood, it seems unlikely that she would have had significant free time available to pursue employment. Against that factor is that the plaintiff's mother has adopted a childcare role in the family which could have given the plaintiff free time to pursue work. Taking those matters into account, any assessment of the plaintiff's past loss of earnings would have to be for a reduced period, and at a reduced weekly rate for part-time work.
In those circumstances, where a precise monetary assessment is not possible, nevertheless, an attempt must be undertaken at making a monetary assessment, even by way of a buffer: State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, at [72].
In evaluating the respective submissions of the parties on the issue of quantification of damages for past economic loss, I consider they are based on unacceptable foundations. In light of the evidence cited, I consider that the defendant's outright rejection of any scope for a monetary assessment of past economic loss is an extreme, unreasonable and unacceptable position that I do not accept as it ignores the effect of the plaintiff's evidence, which I accept in that regard. Similarly, the plaintiff's submission for an assessment of past loss of earning capacity of the order of $100,000 is an overly optimistic one that also cannot be accepted as it does not adequately reflect the factors I have outlined above.
In those circumstances, recognising Associate Professor Athanasou's identified quantum guide that provides a gross range which is the equivalent of between $37,000 and $53,000 in rounded figures, but halving those figures to reflect only part-time work, this yields an approximate gross range of between $18,000 and $26,000.
Using those figures as a background yardstick for measuring the plaintiff's claim for past economic loss and allowing for the incidence of taxation, the fact of part-time work over a limited period starting from a year or so after the birth of the plaintiff's son, and not necessarily involving continuous employment, given the imponderables, I consider that a reasonable buffer allowance in the circumstances is the sum of $10,000. I therefore assess the plaintiff's damages for past loss of earning capacity in the buffer amount of $10,000.

[40]

Past domestic assistance

The plaintiff submitted that damages for past domestic assistance should be assessed in the sum of $30,000: MFI "1". In contrast, the defendant initially submitted that the appropriate sum to be assessed for his head of damage was $4680: MFI "4". The defendant's final submission retreated from that position and argued that there should be no allowance made for this head of damage.
The respective reports of the occupational physicians gave differing opinions on the plaintiff's need for past domestic assistance because, in their instructions for report, they were required to respond to different questions that had been asked of them. Whilst those experts were better qualified than most other medical specialties to give such opinions, their opinions on that topic must necessarily be given limited weight: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]; Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443, at [93].
Furthermore, in this case, I do not regard the report or the evidentiary opinions of Dr Pierides to be a reliable guide to assessing the parameters of the plaintiff's past, or for that matter future need, for domestic assistance. This is because in his oral evidence he was unable to satisfactorily explain why in his assessment he had selected the limiting parameter of 24 weeks for the calculation of damages for past domestic services: T150.24.
In this case, I considered that the evidence of the plaintiff and that of her mother provided a more reasonable, fact-based, and acceptably reliable insight into her past domestic care needs when compared to the evidence of Dr Pierides: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].
In final submissions made on behalf of the plaintiff, it was conceded that the evidence of the respective occupational therapists provided the most appropriate guidance for the assessment of the plaintiff's claim for past domestic assistance. I accept that concession as having been reasonably made. However, I do not consider that guidance to be either prescriptive or definitive of the plaintiff's needs.
As a baseline for assessment, the occupational therapists relevantly agreed that prior to the subject accident, the plaintiff was able to manage the majority of her domestic tasks independently, apart from when she might be required to carry out repetitive tasks at a low height.
In any assessment, regard must be had to the effect of the force of the legislative provisions which preclude the plaintiff from having any entitlement to claim damages for domestic assistance concerning the physical tasks that involved the provision of assistance with the care of her infant child in 2016. This is because her child was born after the subject accident: s 15B of the CL Act.
In assessing the evidence of the respective occupational therapists, it must also be recognised that in determining the period of need for past domestic assistance, the occupational therapists took into account an erroneous estimate of a period of 6 months instead of 6 weeks as representing the period during which the plaintiff wore a spinal brace that would have restricted her physical activities. A measure of discount is therefore required to accommodate that factor.
However, in this case there is no bright line of demarcation of change in the level or capacity of the plaintiff to carry out domestic tasks after the expiry of 6 weeks post-accident. In that regard, I accept the opinion of Dr Barold: T202.3 - T203.17. Dr Pierides also accepted that there was scope for variation on such matters: T150.50. I have also had regard to the potential deleterious effects for the plaintiff if she engaged in repeated or load-bearing forward flexion postures. I am also guided by what I consider to be the reliable factual evidence of the plaintiff and her mother, which I accept as to the time taken to provide past domestic care and assistance to the plaintiff: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].
The occupational therapists differed in their estimates of the plaintiff's need for domestic assistance in the first 26 weeks post-accident with regard to the degree of personal care, transportation, meal preparation, domestic tasks, and shopping assistance that the plaintiff had required. Ms Warner totalled the time for those tasks at 11.5 hours per week and Mr Williamson totalled that time as being 8.25 hours per week.
In this case I consider that those estimates proffered by the occupational therapists must be the subject of some discount to account for an imprecisely quantifiable but progressively modest increase in the plaintiff's capacity to carry out some limited domestic tasks after the first 6 weeks, which was the time she ceased to wear her spinal brace, but still had limitations in her ability to bend and carry out related tasks. I consider the submitted broad brush discount of 1 hour per week to be a reasonable approach to reflect such matters.
In the case of each of the opinions of the two occupational therapy experts, after taking into account that discounting factor, in each case, I am satisfied that the plaintiff has exceeded the threshold requirements of 6 hours per week for 26 weeks: s 141B of the MAC Act.
The quantification difference between the respective opinions of Ms Warner and Mr Williamson seem to be largely based on the premise argued by Mr Williamson that the plaintiff's need for shopping and domestic tasks whilst she was recuperating and living in her parent's home did not relevantly increase the carer's workload. To a small degree that may be so. However, in other respects, I consider Mr Williamson's opinions on the plaintiff's need for domestic assistance, including his repeated rejection, expressed as a repeated word processing function in his report (T127.39 - T127.42), to be inadequately reasoned and therefore unreliable. Instead, I prefer the effect of the plaintiff's evidence, and that of her mother, to Mr Williamson's theoretical evidence.
I also accept the submission made on behalf of the plaintiff that Mr Williamson's opinion on quantification of past domestic assistance should not be accepted because it was not based upon the correct test, namely, whether the additional services that were provided to the plaintiff were necessary as a result of an accident-related incapacity, and would have otherwise needed to have been obtained at a cost: White v Benjamin [2015] NSWCA 75, at [63].
In those circumstances, I consider that Ms Warner's evidence provides a more reliable guide to the assessment of this head of damage. It is common ground that in her assessment, she has used the correct hourly rates as required by s 141B of the MAC Act. That assessment follows, along the lines as was ultimately submitted on behalf of the plaintiff.
For the first 6 weeks, between 10 April 2014 and 21 May 2014, the resultant calculation is for 11.5 hours per week at $27.96 per hour, yielding $1929.24. For the subsequent 20 weeks, between 22 May 2014 and 8 October 2014, the resultant calculation is for 10.5 hours at $28.24 per hour, yielding: $5930.40. The aggregate of these two amounts is $7859.64.
However, it must be recognised that the domestic assistance provided to the plaintiff for the tasks identified in the evidence in that overall period probably fluctuated in terms of time spent although still within the statutory threshold. It is plain from the evidence that precise calculations are not possible beyond recognising that the threshold has been satisfied. Reasonable estimates must suffice in these circumstances. To reflect that view, I propose to round down the submitted calculation. I therefore assess the plaintiff's damages for past domestic assistance to the amount of $7000.

[41]

Future domestic assistance

The plaintiff initially submitted that damages for future domestic assistance should be assessed in the sum of $175,000: MFI "1". In contrast, the defendant submitted the appropriate sum to be assessed for his head of damage was $25,000: MFI "4". In final submissions the plaintiff submitted that the assessment should be in the sum of $120,875 (MFI "6") whereas the defendant's primary submission was that there should be no allowance for damages for future domestic assistance: MFI "7".
I accept the submission that the plaintiff's damages for future domestic care should be assessed on a paid basis at the acknowledged commercial rate of $54.45 per hour: Exhibit "D", p 15. I consider that approach to be just and reasonable in the circumstances because the evidence discloses that it cannot be reasonably assumed that the care hitherto, principally provided by her mother, would continue to be available: ECS Group (Australia) Pty Ltd v Hobby [2014] 8 NSWCA 199, at [63].
This is in circumstances where Ms Cole already has significant care responsibilities for one of her grandchildren who has a disability, and also because she is not in good health: T38.1. Furthermore, the plaintiff anticipates moving away from where she presently lives in Bourke, and when that occurs, in the very near future, she will most probably engage domestic assistance services on a paid basis when she lives alone and has the funds to do so: T37.27 - T37.43.
Dr Barold considered that the plaintiff would have difficulties performing cleaning activities and heavy maintenance type activity: Exhibit "B", pp 32 - 33. Forward flexion is and will continue to be a problem for her. That position is likely to worsen when the plaintiff's back condition deteriorates, which I accept will be the case according to medical opinion, some of which was unchallenged. I do not regard the opinions of Dr Pierides to be a reliable source of contradiction to that opinion, for the reasons already identified.
Mr Williamson conceded that the plaintiff would require assistance with the heavier aspects of cleaning for 16 hours per year: T125. He further conceded that should the plaintiff move to a house with a garden, she would require assistance with the heavier tasks of maintaining same: T127. Allowances must also be made for assistance with hanging out heavier items of washing.
Ms Warner considered that the plaintiff would need some 3 hours per week for meal preparation (1.5 hours) and domestic tasks (1.5 hours) plus some allowance for home delivery of bulky items of shopping. It would be reasonable to round off those tasks at 3.5 hours per week.
On the other hand, Mr Williamson considered that the plaintiff's future need for domestic assistance should be limited to 10 minutes per week for changing bed linen and 5 minutes per week for car washing: Exhibit "D", p 17. I consider that analysis to be artificial and fundamentally inadequate.
In my assessment, taking an overview of the factual and expert evidence for the identified range of activities, I consider that an average rounded down allowance of 3 hours per week for paid domestic assistance to be a reasonable assessment.
At the age of 30 years, the plaintiff has an expected statistical median life span of 55 years. For the purpose of assessment of damages, she must be considered as having been cured of her pre-accident leukaemia: Exhibit "1", Tab 3, p 21. However, the effects of her previous leukaemia have left her with physical limitations that are due to her joint replacement surgeries. There is also the seemingly remote risk of a relapse of her leukaemia in the future.
In view of those matters, I consider that the plaintiff's damages for future domestic assistance should be the subject of two discounting factors, the first being the possibility of her leukaemia recurring, and the second being the distinct possibility that the effect of her pre-existing joint replacements, that are unrelated to her accident, may cause an increased level of physical limitation that might increase the extent of her ongoing need for domestic assistance on account of non-accident-related factors.
The required balancing exercise is necessarily imprecise. In my view a reasonable way of allowing for such matters without excessive double discounting, that is fair to the plaintiff and not unfair to the defendant, is to adopt a lesser projection period of 50 years using the 5 per cent multiplier of 976.2, and applying a higher than usual discount of 22.5 per cent on account of the potential adverse vicissitudes that have been identified and for which allowance must be made: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, at [153] - [154].
The resultant calculation is $123,583 ($54.45 x 3 hours per week x 976.2 less 22.5 per cent for vicissitudes) which I propose to further round down in light of the inherent imprecision of the task. I therefore assess the plaintiff's damages for future domestic assistance at paid commercial rates in the rounded down amount of $120,000.

Cole-Herring v Bourke

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