Danielle Duncan v The Nominal Defendant

District Court of NSW|2013-05-17

Introduction 1On 3 March 2004, on the Kidman Way south of the Murrumbidgee River, there was a collision between a light coloured Suzuki Sierra utility, driven by Shaun Filmer and a green Toyota Camry sedan driven by the Plaintiff, Danielle Duncan. The Plaintiff suffered injuries but they fall short of the10% permanent impairment level, thus precluding her from making a claim for non-economic loss: s 131 Motor Accidents Compensation Act 1999 (the Act). She says however that the accident caused her disabilities that have resulted in considerable economic loss. She claims compensation for that loss together with future domestic assistance and treatment costs. 2It is not in dispute that Shaun Filmer breached his duty of care to other road users. The Nominal Defendant is the proper Defendant in this matter as the vehicle he drove was uninsured. The Defendant disputes the level of loss claimed and compensation sought and submits that any compensation awarded be proportionally reduced because the Plaintiff's own negligence contributed to her injuries. 3The Plaintiff's claim was heard before me at Griffith District Court on 13, 14, 15, 16 and 17 May 2013. These are my reasons for rejecting the asserted contributory negligence and awarding damages of $314,566.00 to the Plaintiff.

The accident 4The collision occurred at the intersection of Kidman Way and a farm road known locally as Jimmy Cattanach Road. That intersection is north of Coleambally and south of Darlington Point, a small town on the Murrumbidgee River. Just before midday on 3 March 2004 Danielle Duncan was driving north on Kidman Way in a work vehicle, a Toyota Camry sedan. She had just picked up pathology samples at Coleambally and was taking them to her employer, a pathology service at Griffith Base Hospital. The day was clear and sunny. Kidman Way is a straight clear sealed road. It has single lanes in both directions. It runs roughly north - south through the Murrumbidgee Irrigation Area. The road conditions were good and the traffic light. The area is flat. There is little to obscure visibility on either side of the road other than occasional small trees and scrub and, on the western side, farm buildings and silos. 5Shaun Filmer was driving a Suzuki Sierra utility east - west along Jimmy Cattanach Road. The utility belonged to his employer, David Cattanach. The vehicle was neither registered nor insured. Apart from the fact he was injured in the accident and his driver's licence had an address in Darling Point, that is all I know of him. Jimmy Cattenach Road is not sealed on its eastern side but is sealed on its western side; the side, which runs in front of silos and a farmhouse: see photograph exhibit D. Well short of Kidman Way on the east side of the road is a Give Way sign of standard type and appearance: photograph exhibit F. The utility was travelling fast. It did not slow or stop at the Give Way sign, but proceeded through the intersection without any apparent regard for traffic on Kidman Way. 6Immediately prior to the accident Ms Duncan was, I find, travelling at or just below the speed limit of 100 kph. She had good visibility to her north and east. There was nothing to distract her from the road ahead. She saw the utility approach from her right. She had driven the road many times; she was aware she had right of way. She told me she slowed down. She said initially she disengaged the cruise control by touching the brake. She later accepted during cross-examination that her memory on this and other details may have been affected by the passage of time. She initially said in evidence she slowed to 90 kph but it was clear she really had no idea what her speed was reduced to. When she saw the utility had not stopped and "realised he wasn't going to stop", she braked as hard as she could. She took a firm grip on the steering wheel. Her seat belt engaged to hold her firm. She said when she braked; the utility was the length of a 25m swimming pool from the intersection. The two vehicles collided. The utility rolled over. Ms Duncan's Camry spun. Both drivers were injured and staggered from their vehicles. Ms Duncan checked on Mr Filmer, who had head injuries. She was shaken and sore. Her right shoulder had hit the window. Her left hand later blistered due to friction contact with the air bag. Her soft tissue injuries led to considerable bruising over many parts of her body. These are shown in photographs: exhibit H. 7Other drivers and workers from the silos attended and assisted. An ambulance was called and arrived soon after. Ms Duncan was taken to Griffith Base Hospital. Rather than go to casualty she took the work blood samples to her employer. She then went home with her sister. Later that evening she returned to the hospital. She was examined and given Ibuprofen for pain. As she was still in pain the next day she made an appointment to see her General Practitioner, Dr Pham. The next available time was the following Monday, 8 March 2004.

A claim for compensation 8Ms Duncan was born on 21 October 1980 and was 23 at the time of the accident. She is now 33 years old. She still complains of the injuries she received on 3 March 2004 and their personal and economic consequences, which she asserts are now permanent and will continue beyond her likely retirement age of 67. 9The Nominal Defendant, while admitting there was a breach of duty of care, advances two propositions, which would operate to significantly reduce any award of damages. Firstly, it is argued Ms Duncan's own negligence contributed to her injuries. Secondly, it is said there are grounds in both fact and law to substantially reduce or deny her an award of damages on each of the heads of damage claimed. 10The matter has a history, which I will not set out. The hearing before me was delayed further after the Defendant took issue with the Plaintiff's failure to seek necessary leave pursuant to the Uniform Civil Procedures Rules (UCPR) to both tender medical reports served out of time, and to file late amended particulars. Leave was granted, over objection, for the reasons set out in separate decisions. In essence, I held that the matter having now come to trial and time being available that time should be utilised as efficiently and effectively as possible to resolve all outstanding issues between the parties.

The Evidence 11Ms Duncan gave evidence before me as did her sister, Laura Duncan, and mother, Fay Duncan. A bundle of medical reports were tendered as exhibit A, other records and statements were also tendered. The Defendant tendered a bundle of medical reports as exhibit 1 and other material including Ms Duncan's treating Doctor's records, as exhibit 4. The matter had to be adjourned for decision as the submissions continued until the end of the sittings. As is now the norm, although the evidence and submissions were recorded, I do not have the benefit of a transcript. 12I found both Laura and Fay Duncan to be witnesses of truth doing their best to assist the court. The Plaintiff was also a witness of truth but, as she herself conceded, time had dulled her memory about details of the accident. She was clearly upset when giving evidence and adjournments were allowed so she could compose herself. There were also times, particularly when challenged about her responsibility for the accident, where she answered anticipating future questions. She appeared to tailor her answers to meet the case she perceived was being made against her, rather than answering directly the question asked. She appeared defensive and argumentative at these times. I also noted at times while in court or in the witness box what appeared to be exaggerated physical responses apparently made to highlight any pain and discomfort she was then suffering. 13She had given two relatively contemporaneous accounts of the accident to insurance investigators: annexure A and B to exhibit B. I accept her evidence that these accounts were not verbatim or in her own words but were prepared from her responses to questions asked of her; questions which may have been influenced by the agenda of the questioner. Nevertheless, they appear to me to be more accurate than her current recollection, particularly when it comes to details of the collision. 14That said, her credit was not unduly damaged at trial and as is clear from all her histories noted in exhibits A and 1, she has, on many occasions, given consistent and plausible accounts to those treating or assisting her and to experts engaged by her solicitors, her Worker's Compensation insurer, and by the Defendant. What she said in evidence was generally acceptable and can be relied on. She is not malingering. She subjectively experiences the symptoms described and the consequent disabilities. She is herself convinced the cause of her pain is organic. She cannot accept that there is a psychological component and is resistant to any notion that her disabilities result from what is 'in her head'. As will become clear, I take a contrary view, but I accept that her current opinions and her functional and psychological disabilities were causally related to the accident. Her credit and credibility was not diminished because of this. I accept she genuinely feels the pain she described to others and to me.

Contributory negligence 15As to this issue, the Defendant asserts Ms Duncan: (a)failed to keep a proper lookout, (b)failed to drive at a safe speed in the circumstances, (c)failed to take care for her own safety, (d)unreasonably assumed the Defendant would give way, (e)failed to take evasive action. 16Section 138 of the Act relevantly provides, "the common law as enacted law as to contributory negligence apply to an award of damages except as provided by this section". None of the statutory exceptions apply here. 17Section 5R of the Civil Liability Act 2002 applies to these proceedings: (1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm. (2)For that purpose: (a)The standard of care required of the person who suffered harm is that of a reasonable person, and (b)The matter is to be determined on the basis of what that person knew or ought to have known at the time. The words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the Plaintiff's position": Waverley Council v Ferreira [2005] NSWCA 418. 18The principles applicable to my determination of whether a person has been negligent include placing on the Defendant the onus of proving on the balance of probabilities any fact relevant to the issue of contributory negligence. They also require consideration, where applicable, of the relevant provisions of the Civil Liability Act, that relate to causation. While there may be some controversy on the point I proceed on the basis the standard of care in both negligence and contributory negligence is the same. I am of the view that, consistent with authority, there is practical utility in starting any examination of the facts by reference to the applicable statute. 19Applying s 5B (1) the Defendant must establish: (1)The Plaintiff failed to take precautions against a risk of harm that she knew or knew or ought to have known of, and (2)That the risk was not insignificant: and, in the circumstances, a reasonable person in the person's position would have taken precautions against a risk of harm, given: (a)The probability that the harm would occur if care were not taken, (b)The likely seriousness of the harm, (c)The burden of taking precautions to avoid the risk of harm. 20Section 5C(b) is also relevant. When a Defendant alleges contributory negligence the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. 21Section 5D also appears to have relevance as here any determination of factual causation requires a determination of what the driver of the utility would have done if the Plaintiff had not also been negligent. This matter is to be determined subjectively in the light of all relevant circumstances. I must also consider (amongst other relevant things) whether or not, and why, partial responsibility for the harm should be imposed on the Plaintiff: S 5D(4). Section 9 Law Reform (Miscellaneous Provisions) Act 1965 and possibly s 5S Civil Liability Act also apply. 22My primary focus however must be on the actions of the Plaintiff shortly prior to the accident. Putting it simply it must be asked: a) What would be reasonable care in the circumstances? b) Whether the Plaintiff exercised reasonable care?

Contributory negligence: The Evidence 23At the time of the accident the weather was clear. The sun was high in the sky. Visibility was excellent. The area is flat. For those travelling north the view to the east of the unmade road leading to the intersection was possibly impeded by trees but as a driver closed on the intersection the view would have been clear. Both the Plaintiff and Mr Filmer would have had an unobstructed view of the intersection and its approaches prior to the incident. 24Kidman Way is a major thoroughfare. It is straight and sealed with dirt verges. It has a speed limit of 100kph. The cross street on the eastern side is an unmade farm road. There was a Give Way sign set back from the intersection by about 25 metres: see exhibits D, E & F. 25The Plaintiff knew the area. She knew she had right of way and was aware of the Give Way sign. She had previously seen a similar vehicle to the utility drive across the intersection without slowing despite traffic being present on Kidman Way: exhibit K annexure B. In cross-examination she described this earlier incident, as from her perspective, a "close call". 26The Plaintiff was initially travelling at about 100 kph. She was not travelling above the speed limit. She saw Mr Filmer's car coming on the dirt road to her left, heading west at about the same speed as she was travelling. 27There is no evidence from Mr Filmer but he must have had a clear unimpeded view of Kidman Way both north and south. He did not slow at the Give Way sign. He did not slow before it. He did not slow after he passed the sign or as he approached the main road. He did not appear to take any evasive action or any action to prevent the collision. Mr Filmer should not have driven across Kidman Way. 28The Plaintiff was driving at a safe speed. Her vehicle was in good condition. She was not tired or impeded in any way. She was on the main thoroughfare. Any driver on a major thoroughfare must be cautious but there is no general assumption that drivers on minor crossroads will blatantly ignore obvious Give Way signs or the fact that they are crossing a major thoroughfare. 29So much appears uncontroversial. The Defendant's case however raises a number of issues of fact, which must be assessed by applying the legal principles noted above.

Contributory negligence: The Defendant's case: 30Mr Fitzsimmons, for the Defendant, asserted that Ms Duncan failed to keep a proper lookout and failed to take steps to avoid what she must have foreseen was an obvious and potentially serious accident where it was likely or probable serious harm would result. It is submitted she had a responsibility to take precautions to avoid the risk of harm: a burden she failed to assume. It is asserted that she should have realised there was a possibility the utility would not stop and she would have been able to avoid the collision by slowing or braking much earlier than she did. Ms Duncan saw the utility coming toward the intersection at speed. She had previously seen that vehicle, or a similar one, fail to stop and cross the intersection without giving way. She was ideally placed to take these steps and was in a better position than most to anticipate the possibility of an accident. 31There is no objective evidence Ms Duncan braked or slowed before the accident. In cross-examination she said, "I was travelling at 100 kilometres per hour, it could have been less...90 to 100 kilometres per hour". She saw the vehicle on the right "the length of an oval" away. She watched the other car approach until the accident occurred. It was not reducing speed. "As I got closer I put my foot on the brake, slowing down." When asked "how far?" She replied, "When I realised he accident was going to occur." 32Her statutory declaration of 31 May 2004 notes: "I noticed the approaching vehicle to the right driving down the dirt road. The vehicle didn't appear to be slowing down much and with very little time to spare I put my foot on the brakes and sounded the horn. Making every effort to stop my vehicle in time": exhibit K annexure A. 33The most comprehensive and contemporaneous account is set out in the statutory declaration of 7 July 2004: exhibit K annexure B. Making due allowance for passage of time between when the Plaintiff's evidence was given and tested and the circumstances in which it was made, it seems to me the most reliable version of events. "At the time of the accident, I was alone in my vehicle and travelling in a general northerly direction along Kidman Way at a speed of about 100 kph. I was on the correct side of the road and my windscreen/windows were clean and clear. The weather conditions were fine and sunny and the roadway was dry. I don't recall if there was any other traffic in the area at the time of the accident. My vehicle was fitted with a warning device that signals when the vehicle exceeds 105 kph and I know it did not sound off at or about the time of the accident. The vehicle was not in cruise control and I was not utilising a cellular telephone at the time of the accident. I can't really estimate distances that well but I believe that I would have been about 100 metres or so from the subject intersection when I can first recall noticing this vehicle heading west along the unnamed road, also about 100 metres or so from the intersection. I immediately realised that it was this light coloured Suzuki and whilst I cannot really estimate its speed, I don't believe it was going faster than I. I do not recall if any headlights were illuminated on that vehicle at the time and whilst I normally drive around the country with my headlights on, I can't recall if they were on at this time. I cannot recall now whether or not that Suzuki slowed down before entering the intersection but I have previously recorded that it "... didn't appear to be slowing down too much". I don't know if that was an observation or a presumption on my part that he did slow down. I don't recall specifically how I reacted to the other vehicle's approach but I believe that I did slow slightly, but continued my approach to the intersection, as did the other vehicle. Again, I assumed that he was going to give way until I found that it was too late and he wasn't. I can't say how far away we were from the intersection at that time but I know that it was close and we were both about the same distance away. I think he may have been in the vicinity of the western boundary fence line of the properties on the eastern side of the intersection. At this time, I applied the foot brake as hard as I could and sound the horn. I didn't steer left or right and I don't recall if the tyres screeched until the front end of my vehicle impacted heavily with the passenger side (nearside) of the Suzuki. It did not slow significantly before it entered the intersection and the collision occurred on my side of the road (northbound) in the middle of the intersection. I did not see the driver of the Suzuki until just before the impact, at which time he was looking straight ahead (to the west) and not at me. I cannot recall if the other driver swerved left or right or took any evasive action prior to the collision. It appeared to be heading straight across the intersection."

Determination - Contributory Negligence 34Any such determination begins with what was said by the High Court in Sibley v Kais (1967) 118 CLR 424. The Court noted that traffic rules were not definitive of the duties of drivers: "The common law duty to act reasonably is paramount...there is no general rule that in all the circumstances a driver can rely upon the performance by others of their duties... Whether or not in particular circumstances it is reasonable to act on the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case." (At page 427.) 35In Henderson v Hassel (1986) 3 MVR 359, Wood J took a common sense approach to the proved and particular circumstances noting the need for caution arose out of "common experience as to the possible approach of a disobedient or unobservant motorist." 36In James v Williams [2003] SASC 22, Gray J noted the duty on all drivers to drive defensively and protectively, to seek out possible trouble and "guard against the ever present danger of human folly." 37Mr Fitzsimmons also took me to other applications of Sibley v Kais, most recently O'Neil v Liddle [2012] NSWCA 267, where in the circumstances then applying, had the appellant kept a proper lookout "she would have been able to avoid a collision by a minor adjustment in speed". He asked me to draw a direct analogy with the circumstances applying to this matter. 38It is a truism to state that had the Plaintiff slowed or braked earlier a collision might have been averted but the circumstances here were quite different to those applying in relatively low speed collisions described in Sibley v Kais, James v Williams and O'Neil v Liddle. It is inevitable with hindsight that something can be identified that may have avoided the collision. The simple fact there was a collision does not equate with causation. The fact there was a collision does not of itself establish a collision could have been avoided. 39There is no evidence from or about Mr Filmer before me. There is no evidence he was the driver of the utility seen by the Plaintiff on the earlier occasion or indeed that it was the same vehicle. However, he must have known he was approaching a major thoroughfare and the dangers involved. Although unlikely given the conditions, it is possible he did not see the Plaintiff's car. He may have intended to pass behind it, but her slowing and braking caused him to miscalculate. There may be other explanations and I make no findings about them. I set them out simply to point out the Defendant's proposition that had the Plaintiff slowed or braked earlier a collision would have been averted is but one of a number of possibilities. There are too many unknown variables to make it the only or most likely outcome. 40Obviously, if the Plaintiff had braked heavily well clear of the intersection when she saw the approaching utility, the collision would not have occurred. But a driver on a major thoroughfare is not required to be so cautious that they consider every eventuality. Even if the Plaintiff had turned her mind to the earlier incident at the time the utility there did not collide with, but passed behind, the truck on Kidman Way. 41I find that the Plaintiff was not negligent in assuming, despite the utilities' speed of the approach, that the driver was aware he was approaching a main road and had seen her car, which was clearly visible. She was not negligent in failing to predict that the other driver would act as apparently recklessly as he did. She was entitled to expect and assume that he would slow at the Give Way sign so as to avoid a collision. When she realised he was not going to give way she did what she could in the time available. As was noted on 7 July 2004: "I don't recall specifically how I reacted to the other vehicle's approach but I believe that I did slow slightly, but continued my approach to the intersection, as did the other vehicle. Again, I assumed that he was going to give way until I found that it was too late and he wasn't. ... At this time, I applied the foot brake as hard as I could and sounded the horn. " 42She says she slowed as the utility approached the intersection. She kept a watch on the approaching vehicle. That was a proper and appropriately cautious approach. She had no reason to do anything else unless she appreciated from its speed the utility was unlikely to slow in time to pass behind her. There is no evidence of this. When she realised the utility was not going to slow she braked heavily and stayed on the road. There was no obligation to take further evasive action. To leave the tarmac would have risked her car rolling; to swerve would have still risked a collision if the utility had taken evasive action. The reasonable, correct and proper course was to stay on the road and slow down as rapidly as possible. 43All drivers have a duty to avoid collisions. Even if another driver or other road user breaches the road rules or their own duty of care. Drivers must constantly be alert to the possibility road conditions may change or another vehicle may behave badly. Drivers are required to be alert for unpredictable behaviour but they cannot be expected to anticipate the unpredictable. Drivers are however entitled to a general presumption that while travelling on a major thoroughfare other vehicles crossing that thoroughfare will take precautions and not drive out in front of them. Here the Defendant says that the utility would not stop was predictable as it had happened before. Plaintiff's counsel gave two answers to this proposition. The first is that one prior incident does not create a precedent. And, secondly the prior incident did not result in an accident nor was there any evidence one was likely. There is a considerable difference in a vehicle failing to slow at a Give Way sign when they have good visibility and can cross without risk of collision and crossing contrary to the requirement to give way when another vehicle is approaching the intersection where they clearly have right of way at a speed of 100kph. 44Given the distances and speeds involved allowance has to be made for the Plaintiff's reaction time, brake engagement time, and the distance the vehicle would have travelled under brakes. At closing speeds of close to 100 kph where it would only have been obvious the utility was not stopping when both vehicles were within metres of the intersection there was only little time, fractions of seconds to consider options and brake hard. The Defendant's proposition make no allowance for such times and places a burden of responsibility on the Plaintiff that in the circumstances was not reasonable. 45With due respect to the Defendant's submissions, had the Plaintiff braked earlier and there still had been a collision or injury, or if she had taken other risky evasive action, it may then have been suggested she should have braked and kept a straight course. Ms Duncan's prompt response in an emergency prevented greater injury to herself and Mr Filmer. A reasonable person in the Plaintiff's circumstances would be expected to do what she could do to reduce the force of inevitable impact following the unexpected and unforeseeable breach of duty by her to other road users and the driver of the utility. 46It is easy to be critical with hindsight, hence s 5C(b) Civil Liability Act. In the circumstances that applied here, the Plaintiff having seen the utility approaching on a minor side road was not obliged to brake or slow significantly in anticipation of the possibility the utility would fail to give way. To impose such an obligation on drivers with right of way on a major road each time a vehicle approached a crossroad, even if they approached at speed, would not be reasonable. She was obliged to take care of her own vehicle and pay attention to the road she was travelling on. That was her duty. 47In all the circumstances the duty owed by the Plaintiff was to avoid a collision or minimise its impact when she, or more correctly, a reasonable person in her position, realised a collision was about to occur. She did so. She had no duty to brake or slow significantly when travelling on a major thoroughfare against the possibility a car approaching on a minor road would act with what could only be regarded as criminal irresponsibility. For these reasons I find that the Defendant has not discharged its onus in establishing any contributory negligence on the part of the Plaintiff.

Economic loss issues 48The Plaintiff complained of pain to her neck, right shoulder and sternum at the Emergency Department on 3 March 2004: exhibit A page 1. She saw her General Practitioner, Dr Pham, soon after. She was off work until 22 March 2004 when Dr Pham, by now her nominated treating doctor, cleared her to return to work on light duties. She resumed work on normal duties on 5 April 2004.This continued until 29 May 2007 when Dr Pham declared her totally fit for work. Soon after she was declared fit for work only if given "suitable duties". She resumed work on reduced hours. Those hours were over time increased until in January 2009 she worked 6 hours per day for 3 days per week and 6.5 hours for 2 days. After being given notice by her employer her employment was terminated, effective from 30 June 2009: exhibit C. She made considerable efforts with the assistance of the Commonwealth Rehabilitation Service (CRS) and eventually found regular employment as an administrative assistant at Wade High School in September 2010. It was anticipated by CRS that this work would be in "a permanently modified capacity including reduced hours/week": exhibit A p 107 CRS Status/Progress Update report to Employers Mutual 27 /11/2009. Ms Duncan still works as an administrative assistant at Wade High School 6 hours per day, 5 days per week. 49The Plaintiff's case is that her incapacity for full time work and all consequent losses to date are causally linked to the injuries received in the accident. She submits that the evidence before the court will also satisfy me of her past and most likely future circumstances but for the injury, such that proper assessments of both past and future economic loss can be made. 50The Defendant accepts liability for economic losses up and until the Plaintiff returned to full time work on 5 April 2004. After that date it is submitted the evidence does not establish a proper basis for the Defendant's continuing liability. In the alternative it is submitted that the Plaintiff's complaints do not have a physical or organic cause but are psychiatric in origin and could not be assessed as permanent. They point to evidence of improvement at times and note the Plaintiff, because she does not acknowledge the problem is psychological, has not engaged in appropriate treatment. It is submitted her future employment prospects were purely aspirational and not supported by evidence. Challenge is made to the extent of the future loss claims. It is submitted the Plaintiff's suggested bleak prognosis is too uncertain and a cushion or buffer would suffice to compensate her properly. It was submitted the past domestic assistance claim was not made out. The Plaintiff eventually conceded this. It was also submitted that the claim for past workers compensation payments was excessive, as what was done and paid for was unreasonable in all the circumstances. 51In response Ms Balendra, for the Plaintiff, reiterated her earlier submission, noting the claims were neither theoretical or aspiration but based on a realistic attempt to put the Plaintiff in the economic position she would have been in but for the injuries and continuing disabilities caused by the accident.

Causation 52I must determine whether or not the Plaintiff has demonstrated a causal link between the motor vehicle accident and her particular harm and symptoms, whether they be physical, psychological, or both. In other words that the admitted negligence was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the Defendant's liability to extend to the harm so caused: s 5D Civil Liability Act. 53The Plaintiff submits she has met that onus and that the disabilities suffered in the accident are now permanent. It is submitted the injury is physical but even if it is solely psychiatric or psychological it is more likely than not that had the accident not occurred she would not have suffered the symptoms, harms or problems she now exhibits. That these harms may appear greater than would have been suffered by a Plaintiff of ordinary psychological susceptibility does not excuse the Defendant from liability. 54After the accident the Plaintiff took three weeks off work returning on light duties on 22 March 2004. On 5 April 2004 Dr Pham declared her fit for normal duties: exhibit C. On that date she resumed her normal duties. On 29 May 2007 Dr Pham again declared her unfit to work. She was declared fit for suitable duties on 15 June 2007 and returned to work. Over the next months her work hours were gradually increased but she did not return to her normal duties or her pre-accident work hours. This was despite treatments and other assistance designed to rehabilitate her. In June 2009 she was given final notice and her employment was terminated: exhibits C (Plaintiff's chronology), J (Plaintiff's affidavit) and O (employment termination correspondence). 55The Defendant contends that the gap of 22 months between 5 April 2004 and 29 May 2007 where the Plaintiff was able to work normal hours indicates any harm suffered had resolved, absolving them of any liability after 5 April 2004. Evidence in support of this proposition can be found in Dr Pham's notes, exhibit 4, and in the Plaintiff's amended particulars of claim and even exhibit C. Dr Pham's records show visits on 30 July 2004, 18 October, 30 November and 16 December in 2005 with another two visits in 2006 in January and May. The Defendant's contention is two visits a year to a treating doctor are totally inconsistent with the level of harm and disability now claimed. It submits that the real and only cause of the Plaintiff's present condition is work stress brought about by pressure to perform extra duties and work harder to make up for staff shortages. 56To the contrary the Plaintiff said in evidence there is a simple explanation for the gap. During the period she tired to soldier on as normal despite the pain and disability continuing unabated. She said there was no need to see Dr Pham because nothing had changed and "she did not need him." Dr Pham just said healing would "take time and wrote prescriptions for pain relief medication. She said despite pushing herself, despite her pain, she eventually broke down in 2007. After which she spent three weeks in her room depressed and in pain. 57Dr Pham's records do record constant and consistent complaints of pain relevant only to the accident. Both Laura and Fay Duncan spoke of the Plaintiff's constant complaint, agitation, and inability to complete normal household tasks from 2004 to 2007. 58The Plaintiff did attend physiotherapy during this period. On 20 December 2004 the physiotherapy records note, "overall improvement" and "neck improving nicely, occasional ache in scapula": exhibit 3. She was discharged from physiotherapy in 2005 but returned in 2006. The July 2006 notes indicate, "goals achieved". When cross-examined on this point she said physiotherapy was "beneficial" and "helped with pain". She said she did what was asked of her regarding rehabilitation. 59On balance I find the evidence of continuing and consistent complaint of pain and disability caused by the motor vehicle accident, compelling. This was a serious accident. The Plaintiff suffered injuries. Her complaints of continuing neck and back pain are constant and consistent. There have been periods of remission particularly with physiotherapy in late 2004 and mid 2005. She had no pre-existing conditions and no other psychological trauma other than those related to the accident. Her breakdown in 2007 was causally related to the accident and occurred because she pushed herself to meet work standards, which due to the continuing symptoms resulting from the accident she could not. There were occasional elements of unreliability in her account but they appear related to the psychological aspects of her injury. Minor exaggerations and occasional periods where no formal complaint was made are not fatal to her claim.

Nature and Extent of Injury Caused 60There is a strong degree of consensus between the experts about the symptoms and consequent disabilities complained of by the Plaintiff: Pain in neck, back, chest and right shoulder. Occasional other pain and cracking or clicking in back and chest, hip and right knee. These in turn lead to problems: driving, sleeping for long periods, depression and anxiety, increased tiredness, and pain. There is consequent inability to work more than about 6 hours per day. The pain and tiredness restricts her ability to do common household, garden, or work tasks such as lifting overhead, driving, or repetitive tasks for very long. 61By 2009 despite regular assessments and rehabilitation a pattern had been established. Ms Duncan could, as she said in evidence on 13 May 2013, manage the symptoms with painkillers and by avoiding tasks that aggravated her condition. If she "pushed over that level it was too much" and symptoms would be exacerbated, especially "fatigue", "forgetfulness", "stinging in back of neck" and "being rundown". 62There is no consensus however about what is the cause of these symptoms. Ms Duncan is, I find, now convinced the cause is organic. She does not and cannot accept there is a functional, psychological or psychiatric element to her symptoms. If, as I have found, the symptoms are causally related to the accident and the Defendant's breach of duty it matters not whether the case is organic or psychological. 63A court cannot make an award of damages for future economic loss "unless satisfied by the claimant that the assumptions about future earning capacity or other events or which the award is to be based in accord with the Plaintiffs most likely future circumstances but for the injury": s 126. Further, an injured person is under a duty to mitigate their damages: s 136. 64Apart from the Plaintiff's contentious expert support for a continuing organic or physical cause for the injury comes primarily from Dr Patrick, a surgeon. A number of his reports were tendered: 16/05/2008; 31/12/2008; 23/01/2009; 21/12/2012; 18/02/2013 and 19/02/2013 all in exhibit A at pages 43,75,79,157,162 and 164. After examination of the Plaintiff in May 2008 his initial belief was Ms Duncan "sustained significant hyperflexion injury to cervical spine with likely ligamentous and cervical zygapophyseal joint injury with disc injury not excluded" and "also sustained significant upper and mid-thoracic facet injury with continuing symptoms and signs in this spinal region." He also noted "evidence clinically for some degree of likely post traumatic subacromial bursitis/impingement of the right shoulder": exhibit A page 47 (16/05/08). He noted that the accident has resulted in "physical and psychological sequelae." He did not believe the Plaintiff was "embellishing her situation": exhibit A page 47. 65Contrary to other experts, Dr Patrick found the Plaintiff's injuries rateable for assessment at over 10%: exhibit A pages 75, 77. In 2012 he noted her presenting symptoms and her "belief" she would be working to capacity, working six hours per day: exhibit A pages 158,159. He noted "Thoracolumbar spine is stiff ... there is significant muscle guarding now at lumber spine para vertebrally": exhibit A page 160. In his opinion the Plaintiff's condition had "deteriorated with significant ongoing symptoms ... definite signs clinically now at lumber spine" and "signs at all three spinal regions cervical, thoracic and lumbar": exhibit A page 60. 66Dr Todhunter, a pain specialist, saw the Plaintiff in 2007. He "believed" the Plaintiff had "a muscular type of pain in the form of a myofascial syndrome": exhibit A page 29. Dr Todhunter recommended a cognitive behavioural pain management programme as the "best approach" as "no direct treatment would reduce her pain significantly in the long term". He found "no structural problems", "no neurological signs" and "a good degree of flexibility and range of movement". 67Dr Evans, orthopaedic surgeon, 10/07/2009, diagnosed "multiple musculo-ligamentous sprains in the cervical, thoracic and lumber region". He noted "it might seem odd making this diagnosis in the absence of objective findings". He did not think treatment would make any difference: exhibit A pages 94 - 107, 10.07.2009 68I have considerable problems accepting Dr Patrick's opinions. He qualifies his opinion as statements of belief. He says there are clinical signs but does not say what these clinical signs are, other than noting symptoms described by the Plaintiff. His whole body of assessments are out of kilter with all other qualified experts. For example, Dr Pell noted "otherwise normal pathology": exhibit A page 11. Dr Zeman, a consultant in rehabilitation medicine, whose opinions on this issue answers what was said by Dr Patrick, explained why Dr Patrick's reference to "facet joint injury" is surmise: exhibit 1 page 88: "In essence she has symptoms and the clinical signs are minimal, certainly not enough to warrant assessable impairment. The restrictions that he [Dr Patrick] places on her activity can be self-fulfilling": exhibit 1 page 90 15/4/13. 69On 17 July 2012, Dr Zeman said "the pains at this stage depend predominantly on factors unrelated to the degree of underlying organic pathology". He noted: "Her investigations have been essentially normal. There is a consensus of medical opinion about this. Pain is a symptom not a clinical sign. Complaints of pain are readily influenced by non-organic factors such as depression or behavioural reactions. A complaint of pain in itself is not a sign of pathology or the severity of the pathology. She has complaints of pain but no objective clinical signs of significant organic pathology. Her complaints of pain and impaired function are greater than would be expected from the degree of identified organic pathology. This is my opinion. There has been general agreement by most doctors about this except for Dr Patrick": exhibit 1 p88. 70Dr Zeman is not alone in his opinion and I prefer it, as it is more likely to be correct than Dr Patrick's. While both Dr Evans and Dr Todhunter were prepared to accept or believe the Plaintiff's symptoms had an organic basis, there was no objective evidence to support those conclusions. Having reviewed the opinions in both exhibit A and exhibit 1, I am compelled by the overwhelming weight of expert opinions to agree with Dr Lim: "I believe Dr Patrick was over interpreting subjective response of the claimant and his examination": exhibit 1 page 30. 71Dr Lim also disputes Dr Todhunter's initial diagnosis of myofascial pain syndrome, as, he says, one of its characteristics are not present: exhibit 1 page 22. As an occupational physician, his opinion was the Plaintiff's "ongoing symptoms and disabilities ... could not be supported by objective clinical problems": exhibit 1 page 22. 72Drs Pell, Zeman and Lim have considerable expertise but they are not psychiatrists or psychologists. Each however surmises there is a psychiatric or functional explanation for the Plaintiff's complaints and symptoms. That surmise seems based on three solid premises: (1)Ms Duncan's symptoms are constant and genuine. (2)There is no alternative organic cause. (3)It accords with the concerted view of those who do have the expertise for diagnosing a psychiatric psychological basis for injury. 73The reports in exhibits A and 1 show a consistency in complaint, including over the period 2004-2007. Also consistent was the Plaintiff's reporting that pain symptoms increased when her workload was heavier. Dr Todhunter's recommended the "best approach" was a cognitive behavioural pain management programme: exhibit A page 29. Dr Kafataris however did not support pain clinics as he finds them ineffective: exhibit 1 page 5. 74In 2008, Dr Kenny, a consultant psychiatrist, thought the Plaintiff had a mild adjustment disorder and Post Traumatic Stress Disorder: exhibit 1 page 11. Ms Matsuka, a psychologist, noted a reactive depression and emotional over-reaction: exhibit A page 33. She recommended counselling focussed on pain management and cognitive behaviour therapy to deal with the Plaintiff's "cognitive distortion" that the pain will never end. 75In 2008, Dr Patrick reported "chronic pain syndrome" and he too, strongly recommended psychiatric treatment: exhibit A pages 43 - 48. Dr Parker, a rehabilitation physician, noted chronic pain that in 2009 was still "very problematic. He firmly believed the Plaintiff needed to take part in a residential pain management program: exhibit A pages 89 - 90. 76Dr Robertson, a consultant psychiatrist, preferred diagnosis was Post Traumatic Stress Disorder and Major Depression: exhibit A page 152, 7/10/2012. Given the eight years that had then elapsed since the accident he said her prognosis for recovery was "extremely poor" and that "it was reasonable that she is unable to work for more than six hours per day". He recommended drug treatment and psychological treatment encouraging 12 to 24 sessions but was guarded as to the likelihood of success given the "chronicity of her depression is a poor prognostic factor": exhibit A page 155. 77Dr Moore, psychiatrist, also gave a guarded prognosis given the Plaintiff "did not recognise or acknowledge psychological factors": exhibit 1 page 38. She found the Plaintiff was "suffering" from one of the somatoform disorders "chronic pain without an organic component and a strong psychological component": exhibit 1 page 37. She was not clear what the origin was. Although the only evidence available to her was the accident. 78She too repeated what is clear from most reports, the regular reviews by the Commonwealth Rehabilitation Service (CRS) and from the Plaintiff's evidence, in chief and during cross-examination: "she is not psychologically minded and has specifically rejected psychological forms of treatment": exhibit 1 page 39. Further examples can be found in both parties' exhibits: for example, Professor Pryor 4/12/2009 exhibit 1, pages 52, 53 and 56; CRS Report 3/11/2008 exhibit A page 68. 79In summary, the overwhelming weight of medical opinion is that following the accident the Plaintiff suffered soft tissue and muscular ligamentous injury, and I so find. There are no continuous organic symptoms or objective sources for it but she still, now nine years after the accident, suffers pain. Work stress, increased exercise, and certain movements exacerbate that pain. Ms Duncan has been told that despite the absence of objective findings her complaints have an organic basis. She believes this. She is not psychologically minded - she cannot accept that the problem is psychological or 'in her head'. She has had only moderate success with drug treatment, exercise, massage, and physiotherapy. She has rejected pain management and psychological therapy. She believes she will never improve. If she does not her working capacity will be reduced, as it has been to date. So too will her capacity to lead the life she led but for this injury. The most likely diagnosis for her current symptoms is Reactive Depression, Post Traumatic Stress Disorder, and Chronic Pain Syndrome resulting from the accident and I so find. There is no need to distinguish one from the other. Although exacerbated by work stresses there is no evidence of any other cause for her present position other than the motor vehicle accident, the subject of these proceedings. 80The Plaintiff could have moderated the symptoms to date had she successfully completed recommended psychological pain management therapies, even though those qualified by her Workers Compensation insurer took the view remedies such as pain clinics were ineffective: Dr Kafataris exhibit 1 pages 5 and 6. However, it is most likely her failure to do so arose from matters related to the accident itself and the subsequent advice and treatment she has received. Accordingly I do not find that there has been any failure on the Plaintiff's part to mitigate her loss to date.

Issues in dispute 81Most issues were disputed at trial. The alternative positions are stark. The Plaintiff claims for all past losses on the basis of an increased earning capacity. A revised claim for past care was abandoned. She submits her most likely future circumstances but for the injury involve loss of increased weekly earning capacity, inability to work more than 6 hours per day, future commercial care needs of four hours per week, and significant future out of pocket expenses. These are set out in the amended Plaintiff's Damages Schedule, provided to me on 28 June 2013. 82The Defendant adopts a starkly different position, graded to meet my possible alternative findings in relation to contributory negligence and the extent of its liability. It is submitted that: (1)I allow damages based on a finding the Defendant's liability for economic loss ended with the resumption of full time work on 5 April 2004 and for other expenses with the conclusion physiotherapy goals had "been achieved": exhibit 3 notes 20/12/2004. (2)If I were minded to allow past economic loss any amount would be necessarily reduced because there was no evidence of increased earning capacity. (3)The claimed past out of pocket expenses should be reduced because the level of rehabilitation costs paid was unreasonable and grossly out of proportion to what was required: For example, in 2009 Dr Lim took the view no medical or other treatment for her injuries was required: exhibit 1 page 23. (4)Future economic loss, should, if I found evidence showed the cause was psychological or functional, be limited to a cushion or buffer. The sum of $50,000 was suggested. The foundation for that submission was: (a)With treatment there was a real chance of improvement. (b)Even without treatment in the absence of organic causes it could never be presumed recovery was impossible.

Past economic loss 83For the reasons set out above the Defendant is causally responsible for the Plaintiff's present economic incapacities from the date of the accident. In assessing damages for past economic loss I have had regard to the objectives set out in s 5 of the Act.

Worker's Compensation 84The Plaintiff claims $32,077.00 paid to her by way of Workers Compensation payments prior to her employment being terminated on 30 June 2009, to compensate her for past economic loss during this period. The Defendant submits that such payments were not reasonable but otherwise agrees with the sum suggested. There is no evidence before me they were not. The Plaintiff has a duty to mitigate losses. She co-operated with her Workers Compensation insurer and obeyed directions from her nominated treating doctor. Each step in the process was supervised by experts, employed or funded by her employer. The payments were the subject of properly submitted and validated claims. The sum claimed of $32,077.00 should be allowed. 85Fox v Wood: I am told this item is not disputed. I also allow the sum claimed of $11,153.00.

Wages and other loss 86It was the Plaintiff's evidence is that she would have continued working with Greater Southern Area Health Service (GSAHS) or with an equivalent employer indefinitely. It is reasonable to assume that the Plaintiff, had she not suffered the injury and symptoms noted, would have continued at GSAHS working 40 hours per week. That is not in serious dispute. What is in dispute is whether there is any evidence to support her proposition that as from 30 June 2009 she would have been promoted to supervisor and earned a higher salary. The Plaintiff told me she would have achieved this higher position at GSAHS. She claims this position would have earned her $1000 per week. Possible salary levels based on the 2012 Award are set out in exhibit B pages 67-75. 87The defence submits in the absence of supportive evidence I cannot make that presumption, as apart from her statement of aspiration there is no evidence the position was available or obtainable. The Defendant is correct. On the available evidence, while it remains a possibility, I cannot find the Plaintiff would have been promoted. 88The Plaintiff's position with GSAHS was terminated because she could not work to the required capacity due to her accident related symptoms. To date she cannot work the full 40 hour week she was previously able to. She is entitled to compensation for the difference between what she would have earned and what she has earned in the intervening period. Loss must be assessed on the basis she would have been paid as an Administration Officer level 3, with the normal or award increments. At 30 June 2009 doing the best I can from the available evidence (which is far from precise) this job paid approximately $24 per hour ($960 gross - $788 net) for a 40-hour week. From July 2012 the rate of pay had risen to $996.80 per week: exhibit B page 75. 89The Plaintiff did obtain occasional part time work between June 2009 and April 2011. In April 2011 she obtained a permanent casual position at Wade High School as an Administration Officer and later as a Teacher's Assistant. Sums received are set out in tax returns: exhibit B. The Plaintiff submits the difference between expected earnings and earnings to date can be calculated by reference to a weekly income of $600 per week from when she first started as an assistant at Wade High School to 13 May 2013. As with most issues at trial there was no consensus reached between the parties about how such loss should be calculated or even that the $600/week figure was correct. Her claim is based on an average net weekly income from Wade High School: exhibit Q tendered by email on 28/6/13. Having reviewed those figures it seems her most common weekly net income from Wade High School was $600. It seems a reasonable figure to allow. 90Accordingly I allow her the following sums for past economic loss from 30 June 2009: 30 June 2009 to 30 March 2011 91 weeks @ $961 gross/$788 net ($71,708.00 less actual earnings of $4,247.00) $67,461.00 1 April 2011 - 30 June 2012 65 weeks @ ($788 less $600) $12,200.00 1 July 2012 - 12 July 2013 53 weeks @ ($850 net approx. less $600) $13,250.00

TOTAL $92,911.00 Past Loss of Superannuation: I allow, the sum of $ 8,362.00, based on 11% of my total allowance for past economic loss of $92,911.00 Loss of sick and holiday pay: The amount of the Plaintiff's claim, subject to liability issues, was not put in serious issue. I allow $6,804.00. Past out of pocket expenses: The amount of the Plaintiff's claim, subject to liability issues, was not put in serious issue. I allow $36,489.00.

Future economic loss 91I note again the objectives set out in s 5 of the Act. Again, both the Plaintiff and the Defendant put diametrically opposed positions. For the Plaintiff, it is said that given the severity of her impairment and disabilities, whether the cause is physical or psychological, she has reached her capacity and will never work more than six hours per day five days per week until retirement at 67; she will require commercial domestic assistance and incur accident related expenses, for life. The Defendant says she has full physical capacity to work and she is not restricted as claimed, or, alternatively, given her disabilities have a psychological basis, recovery with treatment, within a relatively short period can be presumed. The parties did not take me specifically to a middle or alternative course, other than Mr Fitzsimmons' suggestion of "a cushion or buffer". This, with respect, does little to assist if, I, as I do here, find neither case established on the evidence. 92The evidence on the critical point of whether the Plaintiff's symptoms and disabilities will continue or resolve is also diametrically opposed. Even the evidence presented or obtained by the respective parties is not internally consistent on this point. 93Experts, whose reports were tendered by the Plaintiff, suggest therapy would improve the Plaintiff's position: for example Ms Matsuka: exhibit A pages 30-34, and Dr Todhunter: exhibit A pages 28 - 34). 94Going next to the Defendant's exhibit 1, Dr Moore, Psychiatrist, offered in guarded prognosis given what she described as the Plaintiff's vulnerability and her failure to recognise or acknowledge psychological factors. She saw her as "not suitable for psychological types of therapies": exhibit 1 page 33 -38. Ms O'Toole, a rehabilitation specialist, noted: "As a young lady she deserves every opportunity for recovery of function and should seek maximal improvement rather than reliance on others and restriction of function." A series of pain management programs were suggested: exhibit 1 page 76. Dr Kafataris did not think pain management effective: exhibit 1 page 5. 95Staying with the Defendant's reports, if I accept Dr Lim's expert opinion that "the Plaintiff's physical complaints are essentially psychological origin" (exhibit 1 page 22) must I then also accept also the Plaintiff's belief that the complaints will continue unabated because of Dr Moore's opinion (exhibit 1 page 38) she is not psychologically disposed to accept the treatment which she undoubtedly needs to aid her recovery? I think not. 96The Defendant's alternative submission is that if I find the symptoms are psychological, they are exaggerated and will not continue indefinitely. The Plaintiff's submits the evidence does establish the likely cause of the continuing symptoms is organic although there may be a psychological element, which Ms Duncan does not accept, for reasons that cannot be divorced from the consequences of the accident. They say that given they have continued for nine (9) years it is more likely than not they are now permanent. 97The weight of evidence is that Ms Duncan has an accident related psychological condition, which is amenable to treatment. Her intrinsic vulnerabilities and the consequences of the accident itself, reinforced by expert opinions that her symptoms are organic in origin (which she accepts but I do not) mean this treatment is a difficult option, with a guarded prognosis. That said, Ms Duncan presents as intelligent, with a genuine desire to lead a normal life and I find that she will, on all probabilities accept treatment in the future. I must also proceed on the assumption she will act to mitigate losses and aid her own recovery. 98Recovery will not be speedy, but there are grounds for presuming there will be gradual improvement: Dr Kenny exhibit.1 page 16. She has exhibited some occasional improvement since the accident. Dr Pham, Ms Duncan's nominated treating doctor, saw her regularly but not often after 2009. Her notes generally indicate "no change" although there are fluctuations which she relates to her mood: "well" if mood stable, "no change" if anxious. Efexor was still being prescribed in January 2011: see exhibit 4. On one view that both the symptoms and her inability, and consequent, refusal to address their psychological have persisted so long is a good indicator they will continue indefinitely. On the other hand once the pressures and emotional stresses of ongoing litigation are removed she may become more disposed to take up the recovery measures suggested. 99What then does the evidence establish as a reasonable period during which she will, with help, recover? How long is largely a matter of impression based on the available evidence and guided by expert opinion. The symptoms will persist but her capacity to cope with them can be improved and as a result the symptoms will moderate. 100Having regard to all the evidence and noting the Plaintiff's onus I find the following assumptions can be made about earning capacity and other events that are the Plaintiff's most likely future circumstances but for the accident. The evidence establishes that it is likely: a)She would have continued as a level 3 Administrative Assistant or equivalent. b)That at present her psychological condition is such that she feels pain, and believes she is incapable of working at full capacity. c)Treatment is available. d)She is resistant to treatment. e)With treatment her prognosis remains guarded but recovery is likely over time. f)Her condition is worsened by stress and anxiety particularly revisiting the accident and its subsequent impact on her life. These will end with the current litigation. g)She is intelligent and insightful enough to engage in and respond to treatment following the removal of litigation based anxiety. h)Her condition and symptoms will resolve over time and so consequently will her capacity to lead the life she would have had but for the injury will improve. 101There is no evidence to justify any percentage adjustment on the basis that the matter considered might have occurred but for the injury. It is reasonable to presume, despite her resistance to it, that the Plaintiff will take reasonable steps to moderate damages by undertaking necessary psychological treatment. 102One obvious predictor of future behaviour is past behaviour. Here the complainant has constantly complained of pain and lack of capacity to work or engage in pre-accident activities for over nine (9) years. Her condition has stabilised. It unfortunately appears to have normalised. Her condition is not relatively minor but the evidence indicates the severity of her condition, symptoms, and incapacity will diminish with time. Her problems will not resolve quickly, even if all efforts are made, but it has not been established to the requisite standard that they are permanent. How then to resolve the dichotomy - the Plaintiff's claim for life time compensation as against the Defendants suggestion of a modest buffer? 103The Plaintiff's present position is however well entrenched. Her impairments mean some time must be allowed for her to return to the position she would have been in but for the accident. In all the circumstances a period of five (5) years should be allowed for this to occur. I have in effect allowed a cushion or buffer. Based on all the evidence I am satisfied that the following sums should be allowed the Plaintiff for future economic loss, in order for her to be put in the most likely future circumstances she would have been but for the injury. I set out my calculations in brief. Where necessary and appropriate those calculations are based on a 5-year multiplier of 231.5.

Future wage loss 104Loss of wages: The Plaintiff should have the difference between her present income and that which she would now be earning had she stayed in her old job at GSAHS. $850 less $600 = $250/week x 231.5 $ 57,875.00 105I have not discounted this amount for contingencies because of the relatively short time frame allowed. 106Against the contingency that a longer recovery period will be required, because of the entrenched nature of her psychological conditions a further buffer of $30,000 should be allowed to allow for those contingencies. Accordingly I allow a total for future economic loss of $87,875.00. 107Future Superannuation Loss should also be allowed for at: $87,875 x 0.12 $ 10,545.00

Domestic assistance 108 Considerable hearing time was spent on issues relating to past and future domestic assistance. The past domestic assistance claim was ultimately abandoned. The evidence of the Plaintiff, her mother and sister is that there are many normal things including lifting or heavy repetitive work or mowing the garden she cannot do. 109There have been short periods, following the accident, when Ms Duncan has been unable to contribute to household duties at all. At other times she said her participation had been restricted to lighter chores and less hours. Now that she lives alone, her mother comes from Ardlethan to her home in Hanwood to help out one day per week for four (4) hours. Her mother cannot continue to help indefinitely and has other concerns including her own health and that of the Plaintiff's father. 110It is claimed that as Ms Duncan symptoms continue to impact on her functional tolerances, Ms Duncan will remain restricted with the heavier activities of daily living. If she was to continue living alone she would require commercial assistance for heavier domestic tasks such as gardening and mowing as well as the occasional home maintenance tasks such as cleaning windows, soft furnishings, light fittings etc. Ms Duncan may also continue to have difficulty with mopping and vacuuming if she returned to full time work. In October 2009, Ms Duncan was assessed in order to determine her future treatment needs and domestic assistance requirements by Janelle Toole, a qualified Occupational Therapist with Advance Rehabilitation Management Services (ARMS): exhibit I pages 67 -79. ARMS recommend treatment interventions that would promote functional recovery and increase her performance of daily living activities in a way that is safe and sustainable. 111Ms Duncan has relied on others for the more physically demanding domestic. However, from the above assessment and with the recommended treatment interventions, Ms Duncan should be able to resume normal domestic roles including vacuuming and mopping, using techniques that do not aggravate her condition and address avoidance behaviours. ARMS recommended domestic assistance of 1.5 hours a week. This was based on a need for assistance with mopping, vacuuming, cleaning bathroom and hanging out bed linen etc. Those hours reflect her then sharing arrangement with her siblings. Even with treatment, it is likely Ms Duncan will require assistance for mowing lawns, edging and garden maintenance tasks such as pruning for some time. She is likely to also require assistance should she move house, or for "spring cleaning" and other non-routine tasks involving heavier physical work e.g. cleaning curtains, blinds etc. 112The Plaintiff relied on Ms Ravagnani, an occupational therapist, who detailed an extensive list of disabilities and made recommendations with regard to treatments, assistance, and aids required to meet them: Exhibit A pages 166 -181. With respect the needs detailed in that report appear well in excess of, and did not accord with, the level of disability and need detailed by the Plaintiff in her evidence. Some recommendations such as regular exercise would not require the out of pocket expenses set out in the report: exhibit A pages 173-176. 113I note in particular functional capacity testing of the Plaintiff reveals basically normal results: see Ms Payne, physiotherapist: exhibit A pages 121-127 and Ms O'Toole: exhibit 1 pages 68 -79. Dr Zeman's opinion was blunt and to the point: "She does not require any personal care, attendant care or nursing care as a result of the accident. She does not require any physiotherapy, occupational therapy or similar treatments. She does not require any medical consultations, specialist consultations, further investigations, surgery or similar major interventional procedures. She does not require any domestic, handyman or gardening assistance. She does not require any major house modification, air-conditioning, a swimming pool, car modifications or mobility aids." He did however note: "The opinion of a psychiatrist or psychologist should be obtained for prognosis and recommendations on relevant psychological issues." 114Noting that evidence and my finding as to the likely continuation of the Plaintiff's condition, I find that in the immediate future there will be some need for some commercial assistance (gardening, mowing, heavy lifting, spring cleaning) during the Plaintiff's recovery period. Four (4) hours per week was claimed. On the evidence, two (2) hours per week seems reasonable, which sum I allow for five (5) years at the rate of $70 per hour which on the 5% discount tables results in a figure of $16,205.00. Future commercial care 2 hours per week $70 x 231.5 $ 16,205.00

Future Treatment costs 115Evidence concerning treatment required comes from Ms O'Toole. She indicates six (6) sessions at Royal Prince Alfred Hospital and eight (8) sessions with a psychologist with reviews over 12 months: exhibit 1 page 77. Ms Matsuka, psychologist, also recommended eight (8) sessions: exhibit A page 34. Ms O'Toole recommendation for extensive pain management assessment and treatment was not claimed given the Plaintiff's insistence it is not need. It seems to me that the 8 sessions with a psychologist would be the absolute minimum required and I am prepared to allow the Plaintiffs most recent claim for such treatment at what appears to be 16 sessions at $200 per session - $3,200. Psychological treatment $ 3,200.00

Medication and GP visits 116Ms Duncan has seen her treating doctor as much as 12 times per year but more recently, as her condition and medication needs stabilised, the number of visits have dropped off: exhibit 4. Nevertheless allowance must be made for continuing treatment and visits during the next five (5) years in order to continue rehabilitation and maintain pain relief while it occurs. Given my findings I can see no evidentiary basis for further specialist attendances or any more occupational exercise or vocational therapy than has been provided to date or for special equipment to be provided for either on a short term or permanent basis. G.P. $75 x 12/52 x231.5 $ 3,205.00 Medications $35 x 12/52 x 231.5 $ 1,870.00

Massage sessions 117A claim is made for monthly massage sessions. It was recommended to her by CRS: exhibit A page 127. The Plaintiff gave evidence massage helps her cope with her pain: exhibit K page 80. To that end it should continue. It was paid for until 2008: exhibit K page 80. She now pays for it. She should be compensated for this future expense in a similar fashion to her other ongoing medication needs. Monthly massage 60 x 12/52 x 231.5 $ 3,600.00

Summary 118Past Economic Loss Wages $ 92,911.00 Worker's Compensation payments $ 32,077.00 Fox v Wood $ 11,153.00 Past Loss of Superannuation $ 8,632.00 Loss of sick and holiday pay $ 6,804.00 Past out of pocket expenses: $ 36,489.00 Future Economic Loss Loss of wages $ 87,875.00 Future Superannuation $ 10,545.00 Future commercial care $ 16,205.00 Psychological treatment $ 3,200.00 G.P. visits $ 3,205.00 Medications $ 1,870.00 Monthly massage $ 3,600.00 TOTAL $314, 566.00

Orders 1191. Verdict and judgment for the Plaintiff in the sum of $314, 566.00; 2. The Defendant is to pay the Plaintiff's costs on the ordinary basis; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2013

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Judgment (25 paragraphs)

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Cases Cited (5)