Eltana v Guo & The Nominal Defendant

District Court of NSW|2012-08-31|Before: Mr J

Table of Contents Nature of case [1] Background [2] Issues [3] Credit [4] Procedural order [5] - [7] Facts [8] Plaintiff's background [9] Previous illnesses and accidents [10] - [17] Pre-accident employment history [18] - [19] Accident on 2 June 2008 [20] - [31] Injuries and initial treatment [32] - [36] Medical treatment and assessments [37] - [92] Effect on employment [93] - [97] Remaining disabilities [98] - [104] Effects on domestic activities [105] Mitigation [106] - [107] Findings on Issue 1 - Negligence of the first defendant [108] - [124] Findings on Issue 2 - Claim against Nominal Defendant [125] - [133] Findings on Issue 3 - Assessment of damages [134] - [178] Life span of plaintiff [136] Past economic loss [137] - [143] Fox v Wood [144] Future loss of earning capacity [145] - [158] Past domestic assistance [159] - [164] Future domestic assistance [165] - [171] Future medical treatment [172] - [176] Past out-of-pocket expenses [177] Summary of damages assessment [178] Disposition [179] Costs [180] - [183] Orders [184]

Nature of case 1In these proceedings numbered 2010/422515, which are one of three related proceedings, the plaintiff Mrs Bidaya Eltana, claims damages against the first defendant, Mr Peng Guo, and the second defendant, the Nominal Defendant, in respect of injuries she sustained in a motor vehicle accident that occurred on 2 June 2008. It was conceded that the accident occurred without any fault on the part of the plaintiff. The injuries she sustained in that accident were of an orthopaedic and psychological nature. The provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"] apply to these proceedings.

Background 2The plaintiff's claim is that suddenly, and without warning, Mr Guo's vehicle made a right turn across her path at a traffic light controlled intersection in contravention of a no right turn traffic control sign. Mr Guo claimed, controversially, that this occurred due to the unexpected appearance of an unidentified vehicle at the scene. He claimed that vehicle made a right turn across his path from the opposite direction causing him to brake suddenly and to take evasive action to avoid a collision with that unidentified vehicle. In those events, Mr Guo claimed that his vehicle then travelled out of control and to the right, across the path of the plaintiff's vehicle, and into collision with her vehicle. He claims that the unidentified vehicle was at fault and that it left the scene after the collision.

Issues 3The following issues were identified as calling for decision in these proceedings: Issue 1 : Whether the plaintiff has established that Mr Guo was negligent in the circumstances of the accident when his vehicle turned across the path of the plaintiff's vehicle from the opposite direction of travel; Issue 2 : Whether an unidentified motor vehicle was involved in the incident, and whether the driver of that unidentified vehicle was negligent, as was claimed by Mr Guo; Issue 3 : The assessment of the plaintiff's entitlement to damages;

Credit 4Neither the plaintiff nor Mr Guo had their credit relevantly impugned. Instead, the reliability of their respective testimonies had to be assessed in the light of the evidence as a whole.

Procedural order 5The hearing involved three sets of related but unconsolidated proceedings. In view of this, the parties took a practical course regarding the calling and the tender of evidence. It was agreed that the evidence given in each of the related proceedings should be taken to have been adduced in each of the other proceedings. An order was therefore made to that effect. 6The present proceedings, which are numbered 2010/422515, comprise the plaintiff's claim for damages for personal injury. Proceedings numbered 2010/267882 and 2010/266490 respectively comprise recovery proceedings brought by the workers' compensation insurer pursuant to s 151Z of the Workers' Compensation Act 1987 in respect of payments made to both the plaintiff and her husband who were at the time both employed by the same employer, RFD Australia Pty Limited ["RFD"]. 7As the three sets of proceedings have not been consolidated, there will be three separate judgments.

Facts 8In the paragraphs that follow, I set out my review of the evidence, and my findings of fact.

Plaintiff's background 9Mrs Eltana was born in Saudi Arabia in 1980. She arrived in Australia from Egypt when she was a child aged 8 years. At the time of the accident on 2 June 2008, she was aged 28 years. She had married Mr Nael Eltana in 1998. They have a child who is presently aged 10 years. On 23 January 2010, the plaintiff experienced a stillbirth at 38 weeks gestation, due to hydrocephalus. At the hearing Mrs Eltana was aged almost 32 years.

Previous illnesses and accidents 10In 1998 the plaintiff was treated at Westmead Hospital for an episode of pneumonia. There is no evidence of any lasting effects from that condition. 11According to the records of Dr Salwat Soliman, produced on subpoena, on 27 March 2003, the plaintiff had been diagnosed with bilateral supraspinatus tendonitis. That problem was recorded again at a consultation on 8 December 2003. That history of shoulder problems does not appear to have been considered by the medical practitioners who have provided reports on the plaintiff's post-2008 accident complaints. Those additional matters of history concerning the earlier shoulder problems were not explored by the parties, either with the plaintiff, or with the medical experts. In those circumstances, although there appears to be some element of doubt about the cause of the plaintiff's present shoulder problems, I am not able to determine the issue in the absence of medical opinion focussed on the point: Strinic v Singh [2009] NSWCA 15. 12Between April 2003 and September 2003, the plaintiff was treated for what seemed to have been significant psychological problems. In this regard, the underlying symptoms were identified as including chronic mood swings, depression, anxiousness, panic attacks, impaired concentration and memory, and difficulty with sleeping. The treatment she received consisted of taking prescribed medication and attending a series of 9 counselling sessions with a psychiatrist. In those events her treating psychiatrist diagnosed a major depressive disorder with some personality difficulties. The treating psychiatrist identified the prevailing problem to have involved family difficulties. 13Before the accident which is the subject of these proceedings, on 6 July 2005, when the plaintiff was aged 25 years, she was involved in a motor vehicle accident whilst travelling on her way home from work and her vehicle was struck from behind by another vehicle. In that accident she suffered soft tissue injuries to her neck and to her low back. She was treated at Westmead Hospital for those injuries. After an initial 2 months of absence from work due to those injuries, she made a gradual return to her former full time employment. 14Following the 2005 accident, CT and MRI scans of the plaintiff's spine revealed that she had some mal-alignment of the cervical spine at the level C1/2, with some slight narrowing at the level C4/5. This was interpreted to be suggestive of degenerative changes of a small focal posterior disc protrusion. The report on the lumbar spine referred to a very minimal narrowing of the posterior annulus at the level L4/5. In November 2006, the plaintiff received a lump sum settlement of a compensation claim that arose from the July 2005 accident. 15On 30 March 2006, at the request of her general practitioner, Dr Soliman, the plaintiff was assessed by Dr M Jackson, a Pain Fellow at the Sydney Pain Management Centre. In an endeavour to improve the plaintiff's ability to cope with the residual pain from her 2005 accident, and in order to enable her to continue with her work, Dr Jackson recommended that the plaintiff undergo an intensive regime of medical, psychological and physiotherapy sessions. There is no evidence that the plaintiff attended any such sessions. 16On 14 October 2006, the plaintiff suffered a domestic accident in her kitchen when she sustained burns to her right hand and right foot caused by a spillage of hot cooking oil. She was initially treated at Westmead Hospital but she was later transferred to concord Hospital where she was subsequently treated with a Z-plasty procedure in September 2007 in order to free adherent skin that was located between her right thumb and forefinger. Any residual effects of those injuries are of no relevance to these proceedings. 17As was recorded by various medical practitioners who examined the plaintiff for the purpose of these proceedings, the plaintiff has acknowledged that at the time of the 2008 accident which is the subject of these proceedings, she still had some residual neck and back problems that remained from the 2005 accident. In her oral evidence the plaintiff described her pre-2008 accident state of health as having some slight pain in her neck and her back. She said these problems did not interfere with her employment at that time. In the context in which that evidence was given, I do not consider the understatement implicit in that evidence to reflect adversely on the plaintiff's credit. I shall return to a consideration of this evidence in setting out my findings to the plaintiff's ongoing disabilities.

Pre-accident employment history 18After leaving high school the plaintiff pursued TAFE courses in administration and business studies. In 2000, she entered the work force and subsequently worked in a number of clerical positions. She has maintained steady employment apart from some time off from work for childbirth and for injuries from her other accidents. At the time of the accident which is the subject of these proceedings, the plaintiff was employed in an administrative position with RFD. 19Before her 2008 accident, the plaintiff had unsuccessfully applied for a position with Penrith City Council. She made an application for that position because it had offered more flexible arrangements that better suited her family circumstances. Since she did not secure that job at that stage she remained in her employment with RFD until the time of the subject accident.

Accident on 2 June 2008 20At about 4.35pm on Monday 2 June 2008, Mrs Eltana was driving her motor vehicle in a generally westerly direction along Parramatta Road, Auburn. As she was driving into the intersection of Parramatta Road with Station Street she had a green traffic control light facing her which permitted her to drive into the intersection. At that time, a truck had been travelling in the same direction but at some distance ahead of her vehicle. 21As she drove into the intersection, a vehicle driven by the first defendant Mr Guo was travelling along Parramatta Road east and in the opposite direction to the plaintiff. As the plaintiff's vehicle entered into the intersection, the plaintiff observed Mr Guo's vehicle proceed to turn right and travel across her path in order to travel into Station Street. There was a traffic control sign located at that intersection that prohibited eastbound traffic on Parramatta Road from turning right at the intersection, buses excepted. 22In these events, the front portion of the plaintiff's vehicle collided with the passenger's side of Mr Guo's vehicle. The plaintiff said that she had no opportunity to effectively apply the brakes to stop or otherwise avoid the collision that then ensued. There was no direct evidence as to the force of the impact in that collision. In their respective statements to the police the parties indicated that they were each travelling at about 60kph at the time of the collision. Those speeds are reflected in entries to that effect in the police report and in Mr Guo's statement to the police: Exhibit "D1.2"; Exhibit "D2.6". It can be inferred from this evidence that the impact was quite a forceful one. There is no suggestion that the plaintiff was in any way at fault in the events of that collision. 23Mr Guo denied that he was negligent as was alleged against him. He claimed that the accident in question was due to the presence and behaviour of an unidentified motor vehicle which forced him to take evasive action. He gave that version of events in his oral evidence. In the earlier version of events set out in the statement he gave to the police who investigated the accident, he simply stated that he "saw a car". Mr Guo made no reference to having seen a truck as was described by the plaintiff in her evidence. A relevant extract from Mr Guo's statement to the police, which comprises Exhibit "D2.6", is in the following terms: "... I was travelling in lane 3 on Parramatta Rd approaching the City direction when I got to a set of lights on the corner of Station Rd & Parramatta Rd in Auburn. I saw a car. Indicated to turn right I immediately slammed the brakes as a result I lost control of my vehicle my car veered right into the westbound on Parramatta Rd. I felt a bump to the left back corner of my car spun my car around and almost collided with another car westbound I then proceeded through the traffic and drove my car into Station Rd and parked on the side of the road in a secure position." [Emphasis added] 24Having heard and observed Mr Guo when he gave his evidence through a Chinese interpreter in these proceedings, and given the inferred absence of the assistance of an interpreter at the time the above statement was prepared at the police station, I infer that the above account is a condensed summary of the explanation that Mr Guo had provided to the investigating police officer, rather than comprising Mr Guo's precise words. The police officer who obtained the statement from Mr Guo was not called to give evidence by any of the parties. 25The oral evidence of Mr Guo was at times difficult to understand, even when he had the assistance of a Chinese interpreter. This was because some of the translated answers comprised incomplete sentences, some of the answers were not completely responsive to the questions that were asked of him, and some of his answers were accompanied by non-verbal gesticulations apparently intended to describe his actions at the time of the accident. 26I interpreted those gestures to indicate that Mr Guo was frustrated at trying to convey a verbal account of the events of the accident, and so he used those animated and at times dramatic gesticulations to attempt to show how he had turned the steering wheel at the time of the accident. I do not interpret those gestures, or Mr Guo's demeanour when giving his evidence as in any way reflecting adversely on his credibility as a witness. 27In essence, in his oral evidence, Mr Guo's version of the events was that he had been travelling in what can be assumed to be an easterly direction along Parramatta Road in what he described as dark and wet conditions. He described the sudden appearance of a vehicle travelling from the opposite direction turn right across his path of travel. He was unable to give a useful description of that vehicle. He claimed it was very dark at the time, the time being about 4.40 in the afternoon. He said that he did not notice the colour of the vehicle he claims had turned in front of him. 28Mr Guo described having "slammed the brakes" on his vehicle, which then caused his vehicle to fishtail. In an endeavour to correct this fishtailing phenomenon, he said he felt obliged to turn the steering wheel of his vehicle so that his vehicle turned to the right, which was when it came into collision with the plaintiff's vehicle. He denied intentionally making a right turn at the intersection of Parramatta Road and Station Street, stating that was not his usual route. He stated that the claimed unidentified vehicle, which had turned across his path just before the collision later decamped from the scene and therefore could not be identified. There is no issue over due inquiry and search with respect to the unidentified vehicle: s 34A(2) of the MAC Act. 29Mr Guo explained the absence of any detailed reference to an unidentified vehicle in his contemporaneous statement to the police by saying that at the time that statement was prepared and signed by him, he could not express himself well in English. 30The reference to "I saw a car" in the statement of Mr Guo which I have cited at paragraph [23] above, when read in isolation, is ambiguous as it could refer to either the plaintiff's vehicle or the unidentified vehicle. In his favour, it was pointed out that another section of the police report does in fact refer to an unknown vehicle having turned right. The only likely source of that comment would have been Mr Guo. The reliability of Mr Guo's evidence on those matters stands to be evaluated according to its content, and in the light of other oral and documentary evidence. 31The words "Indicated to turn right" in Mr Guo's statement are also ambiguous. They could refer to his own vehicle or the alleged unidentified vehicle approaching from the other direction.

Injuries and initial treatment 32An ambulance attended at the scene and transported the plaintiff to Westmead Hospital. The ambulance report referred to the plaintiff's chief complaints at that time as being neck and back pain. The plaintiff was also noted to have been showing signs of anxiety and hyperventilation at that time. The ambulance report made no mention of a head injury or amnesia. 33Following the 2 June 2008 accident, the plaintiff experienced neck pain, low back pain, headaches and dizziness. She initially received treatment for these conditions at Westmead Hospital where she remained as an in-patient for 5 days between 2 June and 6 June 2008. At the time of her discharge from hospital she was provided with medication and a neck support, which she wore for several weeks. After her discharge from hospital she was followed up at the Brain Injury Unit at Westmead because of continuing headaches and dizziness. 34The Westmead Hospital notes for the admission in the period between 2 June 2008 and 6 June 2008 record the plaintiff had complained of neck pain, mild tenderness in the upper chest, tenderness in the lumbo-sacral region and supra-pubic tenderness on abdominal examination. The discharge summary noted the plaintiff had complained of pains, weakness and paraesthesia in both arms, with tenderness and pain from the lower thoracic region from T10 downwards, including pain and paraesthesia down to her lower limbs. Previous CT and MRI imaging were noted to have shown slight mal-alignment at the C1/2 level, slight narrowing at the C4/5 level, which were stated to be suggestive of degenerative changes with a small focal posterior disc protrusion. The posterior annulus of the level L4/5 was reported to show very minimal narrowing. The discharge notes from Westmead Hospital record that the plaintiff was advised to wear a cervical collar for 24 hours per day until reviewed in the neurology clinic after 4 weeks. She was also advised not to work or drive in that period. 35The Westmead notes also included records of outpatient follow-up and further investigations and referrals, including neurological evaluations. 36Subsequently, whilst the plaintiff was under the care of her general practitioner, she was referred for orthopaedic advice to Dr Mehdat Guirgis concerning her neck and back pain. She was also referred to Dr Samir Benjamin for psychiatric treatment because of her apprehension over returning to driving. Dr Benjamin was also the psychiatrist who had treated the plaintiff for her psychological problems in 2003, and which I have already summarised. I shall refer to Dr Benjamin's reports in due course.

Medical treatment and assessments 37The plaintiff tendered a number of medical reports without calling any supplementary oral evidence from the authors of those reports: Exhibit "B". The defendants took a similar course by tendering a bundle of medical reports and records: Exhibit "D1: 2" 38Whilst that course was open to the parties, and it is one that is provided for in the rules and applicable Practice Notes, where conflicting medical opinions are presented, based on differing histories that have to be reconciled and resolved, as is the case here, such an approach can lead to difficulties and a degree of apparent arbitrariness in assessing which of the opposing medical opinions should be preferred over others. The same comment applies to unexplained and unexplored entries contained in tendered copies of medical records produced on subpoena. 39Dr Soliman's records indicate that before 2008 the plaintiff was being seen in his general practice for depression, family problems and anxiety disorders. The detail of those matters was not explored with the plaintiff. 40The plaintiff tendered a series of 5 Workcover medical certificates that were provided by treating general practitioners from within the practice of Dr Soliman for the period 6 June 2008 to 3 January 2009. Those documents certified various periods during which the plaintiff was unfit for her usual work duties. The first of those certificates identified the plaintiff's initial problems to be neck pain and mild traumatic brain injury with post-concussion syndrome. The second certificate referred to those matters and added a reference to a back injury and to the plaintiff suffering from post-traumatic stress. 41Immediately following the accident, the plaintiff had an initial period of one month off work. This was later followed by a further 2 months off work between September 2008 and November 2008, and then a further week off work in January 2009, as well as some other sporadic absences. 42On 1 July 2008, the plaintiff attended a follow-up assessment at the Westmead Brain Injury Unit. At that time, Dr Kathleen McCarthy identified that the plaintiff had suffered a brief period of loss of consciousness and mild traumatic brain injury with associated post-traumatic positional vertigo, which was expected to settle. 43Dr McCarthy also identified the presence of post-traumatic stress disorder ["PTSD"] in the plaintiff. Treatment by way of psychological counselling and cognitive behavioural therapy ["CBT"] was recommended to the plaintiff for these problems. At her first follow-up consultation with the plaintiff, Dr McCarthy noted that at that stage, the plaintiff was already scheduled to see an orthopaedic surgeon for the management of the spasms that Dr McCarthy had observed to be present in the paraspinal muscles in the plaintiff's cervical spine. 44Dr Soliman had by that stage referred the plaintiff for assessment and treatment by Dr Guirgis, an orthopaedic surgeon. Dr Guirgis subsequently issued two reporting letters to Dr Soliman. These were respectively dated 22 July 2008 and 18 December 2008. 45It should be noted that the two letters received into evidence from Dr Guirgis, and which formed part of Exhibit "B", are not expert opinions that have been prepared in accordance with UCPR r 31.23. They are simply relatively brief medical communications between medical practitioners interested in the diagnosis, treatment and management of the plaintiff's reported conditions. As such, they are relevant to these proceedings and they were accordingly admitted into evidence notwithstanding they did not contain reference to having been prepared in accordance with UCPR r 31.23. In the absence of exceptional circumstances being shown to exist, the position may well have been different if those letters were tendered as expert reports that had been prepared in response to requests from the plaintiff's solicitors. 46Dr Guirgis identified the plaintiff's problems as being "further" post-traumatic mechanical derangement of the plaintiff's cervical and lumbar spines. In the context of the described imaging findings related to the 2005 accident, I interpret Dr Guirgis to be here referring to the plaintiff having sustained aggravation type injuries to these areas that were shown on radiology to already be affected by degeneration and previous injury before her 2008 accident. 47It was somewhat telling that the defendant's exhibit bundle comprising Exhibit "D1.2' included an earlier letter from Dr Guirgis dated 21 November 2005. That report identified the plaintiff's 2005 accident to have involved a rear end collision in which the vehicle that struck the plaintiff's vehicle from behind had been travelling at 80kph. 48In that letter Dr Guirgis identified the plaintiff's 2005 accident related complaints as follows: "... Since then she continued to complain of persistent pain and stiffness in the neck. She described radiation of that pain to involve the right more than the left top of the shoulder blade and right more than left shoulder and down the right arm to the right hand. The right hand, the hand was so weak that sometimes she could not even hold a cup with it. She described pins and needles, numbness and tingling in the fingers of the right hand. She also continued to complain since then of painful stiffness and heaviness in the right shoulder. She also continued to complain of painful stiffness in her lower back and described persistent radiation to involve the right buttock, the back and outer border of the right thigh, the back and outer border of the right calf to the dorsum of the right foot and sometimes to the heel of the right foot. Sometimes the pain down the right leg was so bad causing her to limp with the right leg." 49In that 2005 letter to Dr Soliman, Dr Guirgis made a diagnosis of post-traumatic mechanical derangement of the cervical and lumbar spines with associated radicular symptoms involving both upper limbs and the right leg. He also noted signs of a post-traumatic mechanical derangement of the right shoulder joint. That letter did not identify a prognosis for the symptoms related to those mechanical derangements. 50It seems from this evidence that the plaintiff has understated, albeit inadvertently, the significance and severity of the injuries and the ongoing effects of the 2005 accident. 51In his 2008 letters, Dr Guirgis also identified some related complaints from the plaintiff of radiation of pain and abnormal sensations to both upper limbs and to the left leg. He also identified that the plaintiff was affected by PTSD, a related sleep disturbance, headaches and other related sensory disturbances. Both of the 2008 letters sent by Dr Guirgis to Dr Soliman were in broadly similar terms. 52On 19 January 2008, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Peter Burke, a consultant surgeon. His diagnosis was that the plaintiff had sustained a musculo-ligamentous strain to the cervical spine which he considered was resolving at that time. 53On 12 June 2008, Dr Soliman's notes record that there was a gap in the plaintiff's recollection of the events immediately following the accident and when she became aware she was in a hospital bed. 54On 28 July 2008, Dr Soliman referred the plaintiff to Dr Samir Benjamin, a consultant psychiatrist. The stated purpose of that assessment was for an opinion and for his recommendations for the ongoing management and treatment the plaintiff's PTSD condition. 55Remarkably, other than a two-line referral letter from Dr Soliman to Dr Benjamin, there was no report tendered from any of the plaintiff's several treating general practitioners. Instead the parties tendered several bundles of uninterpreted and voluminous clinical notes produced on subpoena by various treating doctors. 56On 27 August 2008, Dr Guirgis referred the plaintiff to have MRI scans of her brain, cervical and thoracic spines. The brain MRI was reported to be normal. The cervical MRI scan was reported to show posterior bulging of the C4/5 and C5/6 disc spaces with thickening of the endplate margins, but no other abnormalities. The lumbar MRI scan was reported to show desiccation of the L5/S1 disc. No posterior disc protrusion was detected. There was no report correlating these described findings to the plaintiff's reported injuries. There was no evidence indicating whether these reported findings were either caused by, or were contributed to, by the accident on 2 June 2008. 57In this regard, it is relevant to note that the first defendant's tender bundle included a 9 August 2005 MRI report from Dr David Ho. That report indicated a pre-existing C4/5 mild focal disc protrusion of the cervical spine in the presence of a clinical history of C5/6 left radiculopathy. 58On 2 September 2008 the plaintiff was re-assessed by Dr McCarthy. At that time Dr McCarthy thought the plaintiff was developing a chronic pain syndrome. In this regard, Dr McCarthy noted that an appointment had been scheduled for the plaintiff to be seen by Dr Benjamin for psychiatric assessment. 59In September 2008 Dr McCarthy considered that the plaintiff had suffered nothing more than a transient injury to her cervical spine. However, she also noted that this was complicated by psychological factors that were sufficient to interfere with her capacity to manage her daily activities. Dr McCarthy prescribed the medication Lexapro to help the plaintiff with her mood difficulties, to improve her sleep patterns and to also reduce her stress. Dr McCarthy endorsed the need for the plaintiff to have counselling and CBT. 60Dr McCarthy scheduled another review of the plaintiff in a further 2 months. There was no evidence as to whether the plaintiff had in fact attended a further review on that occasion, or as to whether any further report had been issued by Dr McCarthy, following that scheduled consultation. 61On 12 November 2008, at the request of the workers' compensation insurer, the plaintiff was assessed by Dr Leonard Lee, a consultant psychiatrist. He was of the opinion that the plaintiff had no current DSM-IV psychiatric diagnosis, which was in keeping with the opinion of Dr Morse. Dr Lee considered that from a psychiatric perspective, the plaintiff was fit for full time work duties. 62On 15 December 2008, at the request of Dr Soliman, the plaintiff underwent an ultrasound study of her left shoulder, which revealed no abnormalities of the rotator cuff mechanism. As there is no accompanying report from Dr Soliman to provide the clinical context for that referral, or to describe the nature of the symptoms that led to it, the precipitating circumstances of that referral remain opaque to analysis. 63Evidence as to the cause of the plaintiff's problems and treatment during 2009 and 2010 was scant, which was unusual in a case of claims of ongoing physical and psychological problems. 64On 22 May 2009, at the request of the treating general practitioner, the plaintiff was seen by Dr Grant Walker, a consultant neurologist. He considered the plaintiff was "getting a bit 'deconditioned' by her chronic pain" and suggested analgesia and an exercise programme. 65On 19 June 2009, Concord Hospital advised Dr Soliman that the plaintiff had declined treatment and was therefore removed from the waiting list. The specialist was identified as Dr Peter Maitz. No further details of this proposed treatment, or why the plaintiff declined it, are known. In those circumstances I do not consider that this is a relevant failure to mitigate. 66On 19 October 2010, at the request of her solicitors, the plaintiff was assessed by Dr Peter Morse, a consultant psychiatrist. Dr Morse's report of that consultation was dated 30 October 2010. Dr Morse recorded the plaintiff's presenting psychological symptoms as essentially comprising anxiety and tension when driving and whilst travelling as a passenger in motor vehicles. He also noted the history that the plaintiff had at times resorted to shouting at her husband when he drove whilst she was a passenger. Dr Morse also elicited complaints from the plaintiff concerning depression, irritability, sleep disturbance with associated episodic impaired concentration, feelings of guilt concerning her reduced involvement in her son's activities because of the reduced level of her own activities. 67Dr Morse also noted the plaintiff's complaint of unhappiness and sadness at her own physical state. In this regard, he recorded that state as involving problems concerning the plaintiff's neck, left shoulder and low back pain. He also noted the complaint of neck pain radiating to the head, some reduced sitting tolerance, and chest pain related to the left shoulder problems. Dr Morse also recorded that the plaintiff did not complain of any difficulty with her work. However he noted the plaintiff's report of a reduced ability to carry out her housework. He also noted her complaint of reduced social and recreational activities due to her physical state, tiredness and a lack of interest on her part. 68Significantly, Dr Morse was told of the plaintiff's previous injury history which he recorded as comprising post-partum depression in 2003 following the birth of her son in that year. He noted that she had seen Dr Benjamin for that problem. Dr Morse noted the history that after the plaintiff had been taking medication for a period, she had made a full recovery from those symptoms. It is relevant at this point to refer to the earlier involvement of Dr Benjamin in the plaintiff's treatment and assessment. 69Dr Benjamin produced copies of his notes on subpoena spanning the period between 16 April 2003 to 24 September 2008: Exhibit "B". It is noteworthy that Dr Benjamin's records and correspondence do not make any mention of a previous history from the plaintiff concerning the post-partum depression that had been assumed by Dr Morse. 70The tendered records of Dr Benjamin showed that the plaintiff was first referred to him on 27 March 2003, by a general practitioner, Dr Magar, for treatment of what was described in the referral letter as pathological fear, anxiety, depression and insomnia. The questionnaire the plaintiff apparently completed for Dr Benjamin on 16 April 2003 indicated that at that time, she had feelings of sadness, pessimism, lack of enjoyment of life, guilt and disappointment, and other matters of negativity. 71On 16 April 2003, Dr Benjamin wrote to Dr Magar advising him that the plaintiff had a major depressive disorder against a background of significant personality difficulties. Dr Benjamin's reports and notes indicate that in addition to family issues he also treated the plaintiff for auditory hallucinations and self-harm issues in 2003. He prescribed medication and counselling as treatment for these problems. Dr Benjamin saw the plaintiff in a series of 9 consultations between 16 April 2003 and 8 September 2003. The plaintiff was noted to have failed to attend a further appointment on 24 September 2003. There was no explanation from within Dr Benjamin's records for the termination of that treatment. There was no mention of any post-natal depression in that context. 72After a gap of 5 years, during which there were no recorded attendances of the plaintiff, Dr Benjamin's notes then resume with a consultation on 19 August 2008. Dr Benjamin's handwritten notes record a history of the 2005 accident, and an indication that the plaintiff had a month off work, followed by a gradual return to full time employment after 6 months. Dr Benjamin's notes record the plaintiff as having attended a total of 3 consultations with him in the period between 19 August 2008 and 24 September 2008. I shall return to an evaluation of the reports written by Dr Benjamin to Dr Soliman on 19 August and 24 September 2008. 73Dr Benjamin's clinical records identify a history of family problems that affected the plaintiff and which affected her wellbeing. There were references to such matters in the clinical records produced by Dr Soliman. Dr Benjamin also noted that the plaintiff had a history of self-harm. These matters, which were of obvious relevance to a psychiatric assessment of the cause of the plaintiff's complaints, were not explored in evidence and not relevantly considered by the expert psychiatrists in terms of the causation of the plaintiff's claimed psychological problems. 74A complicating feature of any causation analysis concerning the relationship of the plaintiff's psychological problems is the qualified terms of the 2008 opinion of Dr Benjamin's provisional or differential diagnosis: "Provisional Diagnosis/Differential Diagnosis: Bidaya's presentation is consistent with the diagnosis of Adjustment Disorder with Anxiety and Depressed Mood (mild/moderate severity). There is however, a strong element of exaggeration in her presentation. In addition, there is a significant overlap between her current physical symptoms which occurred following the motor vehicle accident of 2 June 2008 and the physical injured (sic) which she suffered as a result of the first motor vehicle accident of 2005. There is also significant overlap between her current psychological symptoms and her presentation is (sic) 2003 when I saw her. It is not clear if the motor vehicle accident of 2 June 2008 had resulted in marked psychological or physical deterioration in her pre-existing level of functioning." 75This is a matter upon which the plaintiff carried the onus of proof: s 5D of the Civil Liability Act 2002. 76Returning to the psychiatric evaluation of the plaintiff undertaken by Dr Morse, he concluded that the plaintiff was not suffering from any psychiatric condition or emotional disorder, such as a depression or an anxiety state, although he had little doubt the accident had affected the plaintiff's life in a number of areas that he had described. 77Dr Morse did not think the plaintiff required any treatment from the viewpoint of his specialty at the time that he wrote his report. He foreshadowed the possibility that the plaintiff might become depressed and might develop an adjustment disorder if her physical state did not improve. The terms of the report from Dr Morse indicated that these were not firm predictions. It was plain that such predictions clearly involved a good deal of speculation for which evidence was necessary to support any findings as the existing material was insufficient to base reasoned inferences. 78There was no updated report from Dr Morse concerning the condition of the plaintiff, either in 2011 or 2012. Nor was there any evidence as to whether the views Dr Morse had expressed in 2010 as to the plaintiff's condition, had changed in any way since he had furnished his report dated 30 October 2010. This is a matter upon which the plaintiff carries the onus of proof. 79As the following summary shows, no evidence has been tendered to show that the plaintiff has gone on to develop depression or an adjustment disorder as was indicated by Dr Morse as a potential possibility. 80On 1 December 2010, at the request of her solicitor, the plaintiff was assessed by Dr P Endrey-Walder, a consultant general and trauma surgeon. In his report of that consultation, Dr Endrey-Walder reviewed the plaintiff's history and the radiological findings he was given, and provided his opinion to the effect that the plaintiff's neck and back injuries from the 2008 accident were of a soft tissue nature. He also stated that there was no doubt that the plaintiff's injuries were superimposed upon a degree of residual pain and restriction of movement of the neck and lower back as a consequence of the injuries she sustained in the 2005 accident. He assessed the plaintiff's left shoulder problems as being a consequence of the neck injury due to an associated referred pain from the trapezius muscle. 81On 23 August 2011, at the request of the solicitor for the Nominal Defendant, the plaintiff was assessed by Dr RWD Middleton, a consultant orthopaedic surgeon. After reviewing the plaintiff's neck, shoulder and back symptoms, Dr Middleton concluded that the plaintiff's marked limitation of movements in the cervical and lumbar spines, and in both shoulders, were not credible complaints in the absence of major injury. He thought there was no impairment in the plaintiff's ability to work. He also concluded there was no evidence of an impairment that required personal or domestic care and assistance. 82On 6 September 2011, at the request of the solicitors for the Nominal Defendant, the plaintiff was assessed by Dr Inglis Howe Synott, a consultant psychiatrist. Dr Synott concluded that the plaintiff did not have a psychiatric condition. From a psychiatric perspective, he considered that the plaintiff had no restrictions on her ability to work full time or to carry out her domestic responsibilities without assistance. 83On 22 September 2011, Dr Endrey-Walder reassessed the plaintiff and provided a further report on her condition. He noted that the plaintiff was now seeing Dr Akram Maussad as her current general practitioner and that he had prescribed Mersyndol Forte for her pain, Mobic for pain, and Endep, which was noted to be an anti-depressant. Dr Endrey-Walder did not say whether Endep had been prescribed for depression. He noted that the plaintiff's symptoms of neck, left shoulder and low back problems had continued since he had last assessed her. He also noted that she was particularly distressed at the deterioration in her condition of her lower back in the previous couple of months. Without expert psychiatric opinion to comment on this evidence, this latter opinion is not a sufficient basis to infer the plaintiff had a currently diagnosable psychiatric condition: Strinic v Singh [2009] NSWCA 15. 84Dr Endrey-Walder went on to express the provisional opinion that the plaintiff was suffering from facet joint damage to her cervical and lumbar spines. He reiterated a request for a bone scan to be carried out in order to confirm his provisional diagnosis. He also recommended an MRI scan of the plaintiff's left shoulder. 85Dr Endrey-Walder also expressed his impression that if the plaintiff's work hours could be reduced to say 5 hours per day for 5 days per week, her working life would be prolonged, as he thought that the plaintiff seemed to be "at the end of her tether". He did not explain the applicable time span for that recommendation to apply. 86Dr Endrey-Walder supported a claim for the plaintiff to receive domestic assistance as a result of the 2008 accident. In that regard, he estimated the plaintiff's need for such assistance to be for at least one hour per day. 87On 11 November 2011, Dr Endrey-Walder reviewed a report of an MRI scan taken of the plaintiff's left shoulder. I infer this to have been the report of Dr Connolly dated 24 October 2011, which diagnosed the plaintiff to have supraspinatus tendonitis and mild axillary pouch synovitis. Dr Endrey-Walder interpreted the MRI scan to show supraspinatus tendonitis without a tear. He noted the possibility that the plaintiff may have an impingement syndrome of her left shoulder but he also stated that the plaintiff's gross restriction of shoulder movements that she had displayed at his last examination of her on 22 September 2011 could not be accounted for, to the extent of even one-tenth by those findings. 88That last cited statement suggested other factors were influencing the plaintiff's presentation. As it was not directly suggested to the plaintiff that she was fabricating her symptoms, the significant remaining possibility to be considered is some kind of psychological explanation. Unfortunately, the state of the psychiatric evidence does not enable an inferred or concluded view to be formed on that matter as this involves a medical opinion for which evidence is required: Strinic v Singh [2009] NSWCA 15. 89On 13 December 2011, at the request of the solicitor for the first defendant, Dr Bruce Trevitt, an orthopaedic surgeon, provided those solicitors with a commentary on the plaintiff's condition. That commentary was said to be in reference to an earlier report he had provided to those solicitors on 3 November 2011. 90Since Dr Trevitt's 3 November 2011 report was not tendered in evidence, I have discounted the commentary in his 13 December 2011 report that expressed criticism of the plaintiff because the full context is not apparent due to the absence of that first report. A similar comment applies to the subsequent letter from Dr Trevitt dated 14 December 2011. 91The clinical notes of Dr Maussad, the plaintiff's new general practitioner, were produced on subpoena. 92Those records show a total of 9 consultations with the plaintiff between 28 June 2011 and 24 November 2011. The presenting problems at those consultations ranged from left shoulder pain (at the initial consultation), to chronic neck and back pain (at the third consultation), and dizziness and nausea (at the fourth consultation). Ultrasound and MRI investigations were variously noted to have revealed subacromial /sub-deltiod bursitis with impingement in the left shoulder, suprapinatus tendinosis, adhesive capsulitis and mild axilliary puch synovitis. This condition was treated with injections. The cause of the supraspinatus tendonitis must be doubtful so far as the 2008 accident is concerned because of the earlier diagnosis of that condition in 2003.

Effect on employment 93The plaintiff remained off work for varying periods between 2 June 2008 and 1 October 2008, for which she received payments of weekly compensation. On her return to work at RFD she found she had been demoted into an administrative position. 94Following her return to work the plaintiff found she was still experiencing ongoing neck pain, back pain, stress, unhappiness and difficulty concentrating. She was taking strong pain killing medication to help her to cope with her work. 95In March 2009, the position she had previously applied for with Penrith City Council became available. She then accepted that position. Accordingly, she then resigned her employment with RFD in order to take up that position. The new position with Penrith City Council involved her working as a secretary for 35 hours per week or a 9-day fortnight, which compared with a 37.5-hour fortnight in her previous position with RFD. The plaintiff presently remains in that employment however she claims damages for past and future loss of earning capacity. I shall return to this topic in my assessment of the plaintiff's entitlement to damages. 96Currently she is contemplating reducing her working hours to accommodate her post-2008 accident complaints, but she is under economic pressure to continue working because of the mortgage commitments that she shares with her husband. 97In her former employment at RFD, the plaintiff had the benefit of about $100 per week overtime but in her present employment she does not have access to such overtime.

Remaining disabilities 98I accept that the plaintiff continues to constantly experience some ongoing pain in her neck, back, and left shoulder, the shoulder problems being related to the neck. I accept these pains are occasionally severe, and that she takes medication on account of these problems in order to enable her to continue working. These problems appear to be a "further" exacerbation of the underlying problems from the 2005 injury, as was identified by Dr Guirgis. In that regard the defendants must take the plaintiff as she is found with regard to any pre-existing problems that are vulnerable to exacerbation. 99I also accept the plaintiff when she states that her neck pain extends into her shoulders, with the left shoulder being more painful. I also accept that the plaintiff experiences back pain extending into the back of her left leg and foot. 100I also accept that the plaintiff continues to suffer symptoms of a psychological nature as a result of the physical symptoms that I have outlined in the preceding paragraphs. Although the preponderance of the more recent psychiatric evidence indicates there is no diagnosable psychiatric condition or illness in the plaintiff, I must regard that evidence with a degree of caution. This is because the opinions from the experts on that question appear to be based upon the proposition that DSM-IV diagnostic criteria are not fulfilled. 101For the reasons explained by Dr Synott in his supplementary commentaries, it is plain that the plaintiff's low mood, distress and sadness at her condition, and the negative influences that have impact upon her due to her experience of pain, nevertheless indicate that the plaintiff does suffer from the effects of the accident in a psychological sense. In this regard, the particular diagnostic label is of relatively diminished importance. 102A difficulty in precisely defining the psychological effect upon the plaintiff of the 2008 accident is the qualified statement made by Dr Benjamin which I have cited at paragraph [74] above. That difficulty must be reflected in any findings concerning the likely duration of the plaintiff's problems that flow from the 2008 accident. 103In arriving at my findings on the plaintiff's physical disabilities I have not overlooked the discrepancy between the views of Dr Endrey-Walder compared to those of Dr Middleton concerning whether the plaintiff has credible complaints concerning her limitation of movements in her cervical and lumbar spines. In reconciling that discrepancy I have discounted Dr Middleton's views as they are in this case predicated upon a consideration of the subjective factor that a "major injury" was absent in the plaintiff. 104In arriving at these conclusions concerning the plaintiff's disabilities, I consider that the medical evidence is not expressed in terms that permit a finding that those problems will continue to affect the plaintiff indefinitely. In stating these findings I do not ignore the evidence that the effects of the 2005 accident still have an influence on the plaintiff's disabilities. This is a topic to which I shall return in my consideration of the plaintiff's claims for future loss of earning capacity, future domestic assistance and future treatment.

Effects on domestic activities 105The plaintiff makes a claim for past and future domestic assistance on account of the disabilities that I have outlined in the preceding paragraphs. In reviewing the medical evidence on this issue there is a divergence of opinion between Dr Endrey-Walder, who supports such a claim, and the other medico-legal experts who do not support such a claim. In reconciling that divergence of opinions I have preferred and have accepted the opinions of Dr Endrey-Walder. I have taken that view because he has reasoned his conclusion to that effect and his explanation is a rational one, related to the plaintiff's experience of pain and discomfort. I will return to this issue in my reasons in connection with the claims for domestic assistance.

Mitigation 106The plaintiff has a duty to mitigate her losses and in assessing her entitlement to damages, consideration must be given to the steps taken by the plaintiff to mitigate her damages: s 136 of the MAC Act. 107The plaintiff pursued treatment and this was paid for by her employer's workers' compensation insurer. The medical evidence does not suggest there has been a material failure to mitigate her damage. I do not consider the cessation of physiotherapy to be a failure to mitigate as it has been shown that the workers' compensation insurer ceased to support that treatment as at 12 January 2009. The defendants have not submitted that there was a relevant failure on the plaintiff's part.

Findings on Issue 1 - Negligence of the first defendant 108Mr Guo claimed that he was not negligent in the circumstances of the accident because he was proceeding through the intersection on a green light when he was suddenly confronted with a vehicle coming from the opposite direction attempting to make a right turn across his path. He claimed that in those sudden and unexpected events he was required to apply his brakes hard and steer to his right in order to try and avoid a collision but in doing so, he lost control of his vehicle on the wet roadway as he attempted to proceed across the mouth of the cross-intersections. 109In my view that submission completely ignores important aspects of Mr Guo's driving on that day, which, when taken together, indicates that Mr Guo was driving negligently in the lead-up to the collision. My reasons for that view are as follows. 110The duty of a driver travelling on a roadway includes the obligation of applying reasonable attention to all that is happening on and near the roadway that may present as a source of danger: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228, at [11]. 111Mr Guo was driving on a wet road at 60kph in approaching an intersection where it must have been reasonably foreseeable to a driver in such circumstances that vehicles might turn to drive across the path of other vehicles, even if that were to be contrary to applicable traffic control signs. 112By driving on a wet road at 60kph (or 16.66m/sec) in such circumstances, Mr Guo inevitably reduced the amount of reaction time he would have available to take evasive action if such circumstances were to occur ahead of him. In my view that of itself amounts to a relevant breach of duty of care. 113In travelling at a speed of 60kph on a wet road, this inevitably meant that if Mr Guo found it necessary to slam on his brakes, he would be very likely to skid or "fishtail" on the wet road surface, which in turn significantly heightened the risk of a collision occurring with another vehicle in the vicinity, whether such a vehicle was on the same or the opposite side of the roadway. In my view, by travelling on a wet road at 60kph, Mr Guo's manner of driving heightened the prospects of the materialisation of such a foreseeable risk. 114Mr Guo was also required to keep a proper lookout to anticipate aberrant behaviour of other motorists whose driving might pose a foreseeable risk of collision. 115Mr Guo stated that he only saw the vehicle that allegedly turned across his path when it was only 15m ahead of him with its right turn indicator flashing. In my view that was an improbable observation on his part. I take that view because neither the plaintiff nor her husband saw such a vehicle, where I am satisfied that the plaintiff was keeping a proper lookout in those circumstances. If there had been such a vehicle, as claimed by Mr Guo, then at the very least, the plaintiff, if not her husband, would have seen it and described it, both in their claim forms and in their evidence. 116In the circumstances of this case, I consider that the explanation for the collision as proffered by the plaintiff was the more likely version of events. In those events, Mr Guo's vehicle made a sudden right turn across the path of her vehicle. I consider that the more likely explanation was that Mr Guo made his right turn without seeing the approach of the plaintiff's vehicle because he was not keeping a proper lookout. 117I do not accept the defendant's account of his intended route, as marked on Exhibit "5", as a basis for denying the plaintiff's claim that he had turned across her path. I do not accept that evidence because it was inconsistent with the observations of the plaintiff and her husband, which I accept and prefer to the evidence of Mr Guo. I consider Mr Guo's evidence to be unreliable in comparison to the evidence of the plaintiff and her husband. 118In my view, the unreliability of Mr Guo's evidence arises for the following reasons. 119First, Mr Guo's account was unclear as to the sequence of events leading to the collision and as to the details of the other vehicle. This suggests that he had not been keeping a proper lookout. 120Secondly, I had some doubt about the accuracy of Mr Guo's evidence as to the prevailing circumstances in the area of the accident in two respects. The first such matter was his description of it being "very dark" at that time of the day: T112.9. That description seemed at odds with the description of it being dusk and overcast as stated in the police report. In that regard, I consider the police report to be a more reliable source of evidence on that matter. The second such matter was that he described his view at the scene as being "up the hill": T112.20. This was inconsistent with the description of the accident scene set out in the police report where the roadway at the scene was described as being level. Although photographs need to be interpreted with some considerable caution on such an issue, the photograph of the scene that comprised Exhibit "C" also appeared to be consistent with the description of the topography at the scene being level, as was stated in the police report. The description in the police report therefore suggests that Mr Gou's recollection of the area was inaccurate. 121Thirdly, there was a discrepancy between the statement Mr Guo made to the police as to his speed at the time the incident occurred, compared to the speed he nominated in his oral evidence. In the statement to the police he stated his speed was 60kph: Exhibit "D2.6". In contrast, in his oral evidence, he stated his speed was 50kph: T107.47. In weighing the reliability of his evidence I considered that this variation in the description of his speed was significant, and was indicative of an unreliable recollection. 122Fourthly, his account of the events leading to the collision omitted any reference to the vehicle being driven by the plaintiff until just before the collision, and even then, only fleetingly: T112.29; T112.50; T117.6. This seems to me to be incidental to a failure to keep a proper lookout. It also suggests that he therefore had only a very limited opportunity to make observations at the time, which in turn raises a question as to whether his account was a reconstruction rather than a recollection of the events. 123For the foregoing reasons, it seems to me that Mr Guo has provided a reconstructed version of the events, and that such reconstruction by him was of doubtful accuracy. This view leads me to prefer the evidence of the plaintiff and her husband to the evidence of Mr Guo, when they say that there was no such other vehicle at the scene. 124I therefore find that the accident occurred due to negligence on the part of Mr Guo. It follows, as explained in the ensuing paragraphs, that I do not accept his claim that there was an unidentified vehicle that appeared and caused the accident when he was forced to take evasive action.

Findings on Issue 2 - The claim against the Nominal Defendant 125Although Mr Guo contemporaneously informed the investigating police officers of the alleged involvement of an unidentified vehicle as the cause of the collision, that factual allegation requires a critical consideration as to the reliability of the evidence that Mr Guo gave concerning that issue. 126I have already observed, at paragraph [30], that Mr Guo's initial description "I saw a car" was ambiguous. I consider that expression to be too ambiguous to be reliably used to base a finding that another vehicle had turned across his path. The fact that the investigating police officer interpreted Mr Gou's account to refer to such a vehicle is not necessarily probative of that fact. 127On behalf of the Nominal Defendant it was suggested to Mr Guo that the reason he sought to inculpate the involvement of an unidentified vehicle for the collision was because he was concerned that he would be found to be at fault and therefore lose his licence because of already accumulated demerit points. Mr Guo denied this assertion and I accept that denial. 128I accept that Mr Guo has convinced himself that there was an unidentified vehicle in the vicinity, and that vehicle was the cause of the collision, however I am not persuaded that his account in that regard should be accepted as being reliable for the reasons outlined in paragraphs [108] to [124] of my reasons. 129Accordingly, I am persuaded that whilst Mr Guo provided a reconstructed version of the events of the collision that was exculpatory of him by reference to the alleged unidentified motor vehicle, I am also persuaded that his reconstruction was inaccurate. I therefore do not accept that there was an unidentified vehicle as claimed by Mr Guo. 130I consider that Mr Guo's account in which he sought to avoid an unequivocal acknowledgement in his evidence, as he had given to the police, that he had simply lost control of the vehicle he was driving to be indicative that he had been driving too fast for the wet road conditions, and because he had not been keeping a proper lookout, and had turned right at a place which was not permitted, which was an inherently dangerous manoeuvre. 131I do not accept the suggestion that there was an at fault unidentified motor vehicle involved in the events of the collision. 132To allow for the possibility that on appeal it may be found that I have erred in my finding that there was no unidentified vehicle involved, I should also set out my conclusions concerning negligence and causation. 133If, contrary to my finding, it is assumed that there was an unidentified vehicle as claimed by Mr Guo, no satisfactory evidence has been adduced to show that the driver of that vehicle had been negligent. In this regard, a fleeting observation over a distance of 15 metres at 60kph, or less than a second, is an entirely unsatisfactory foundation upon which to base a finding that the driver, who had been operating a right turn indicator light, was negligent in making a turn. In my view, much more would be required to make findings of negligence and causation. Accordingly, I would also reject Mr Guo's defence and cross-claim on that basis as well.

Findings on Issue 3 - Assessment of damages 134The plaintiff makes a claim in respect of 7 identified heads of damage. As the medical assessment of the plaintiff's disabilities have resulted in an assessed whole person impairment of less than 10 per cent, the plaintiff is not entitled to claim damages for non-economic loss for pain, suffering and loss of the amenity of her life caused by her injures. The plaintiff's submitted assessment in respect of the otherwise claimable heads of damage was in the following terms: (a) Past economic loss $27,157.79 (b) Fox v Wood $3,011.56 (c) Future economic loss $195,152.00 (d) Past domestic assistance $34,643.00 (e) Future domestic assistance $149,970.00 (f) Future treatment $24,995.00 (g) Past medical expenses $11,319.31 Total $446,248.66

135The defendants disputed those claimed entitlements. In the paragraphs that follow, I set out my findings and assessments concerning those claims.

Life span of plaintiff 136In assessing the plaintiff's entitlement to damages there is nothing arising from the evidence to suggest that the usual statistical life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses, if such a course was indicated.

Past economic loss 137The plaintiff makes a claim for past economic loss which involves three components for assessment. These are, first, the value of her net earnings for the time the plaintiff spent off work due to her injuries, secondly, a loss of the value of lost overtime in her pre-accident employment because the workers' compensation payments she received following the accident did not make up for that loss of overtime, and thirdly, a differential loss of earnings claimed in respect of the period after the plaintiff later took a lesser paid job with Penrith City Council following her return to work and after realising she had been demoted. 138The first component of claimed economic loss is conveniently identified as comprising the amount paid by the worker's compensation insurer, namely, $15,057.79. I consider that sum as being reasonable and commensurate with the time that the plaintiff remained away from work on medical advice whilst she recuperated from her injuries. In respect of this component, I therefore allow the claimed sum of $15,057.79. 139The second component claimed a loss of overtime of $100 per week net over a total period of four months during which the plaintiff was absent from her work due to her injuries. I consider that claim seems to be reasonable and it should be allowed as legitimately forming part of the assessment of the plaintiff's damages in this case. I therefore allow the claimed sum of $1500. 140The third component of claimed past economic loss is the differential net sum which the plaintiff would have earned if she had not changed her employment from RFD to Penrith City Council. The net amount involved over the period between 30 March 2009 and the commencement of the hearing is the submitted amount of $10,600. 141I do not allow this third component of the claim because before the subject accident, the plaintiff had already expressed the desire to change her employment in order to work with Penrith City Council for family reasons. The plaintiff had applied for that position before the subject accident. I therefore find that the plaintiff would most probably have changed her employment in that regard once the position with the council became available to her, irrespective of the occurrence of the subject accident. There is no evidence that she could have received additional income in the employ of that council if she had not been injured in the subject accident. I therefore consider that the plaintiff would have accepted that lesser rate of earnings in any event as a trade-off for a greater level of enjoyment of the amenity of her life in working closer to home for lesser hours. 142No claim was made for loss of employer funded superannuation benefits. 143Aggregating the allowed components, I therefore assess the plaintiff's claim for damages for past economic loss in the amount of $16,557.79.

Fox v Wood 144The plaintiff claims damages for reimbursement of the amount of tax that was deducted from her weekly compensation payments, namely $3011.56: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. That amount seems to me to be reasonably claimed and I therefore assess the plaintiff's claim for damages for past tax instalments deducted from her payments of weekly compensation in the amount of $3011.56.

Future loss of earning capacity 145The plaintiff pitched her claim for future loss of earning capacity on two alternative bases. The first basis involved the projection of a claimed net weekly loss of $262.21 to age 67 years, with such a projection then discounted for potentially adverse vicissitudes. This identified a claimed amount of $195,152. The alternative basis of assessment involved a proposed buffer amount of $150,000 to cover the same period: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. 146Those claims were advanced and argued on the basis of the 22 September 2011 opinion of Dr Endrey-Walder to the effect that the plaintiff should really only work a maximum of 25 hours per week, due to the aggravating effects of her employment activities upon her symptoms. 147In contrast, on behalf of the defendants, it was argued that as the plaintiff was plainly able to remain in clerical work and according to the criteria of s 126 of the MAC Act, only a modest buffer should be awarded. 148I consider that the submitted quantum of the claim made on behalf of the plaintiff for future loss of earning capacity is not supported by the preponderance of the medical evidence. 149In this regard, I prefer and accept the opinions of Dr Lee, Dr Middleton and Dr Synott to the more pessimistic view expressed by Dr Endrey-Walder concerning a claimed loss of earning capacity. I take this view because Dr Endrey-Walder's suggestions for the plaintiff to have reduced working hours is not grounded in reasoning that is specifically referrable to the effects of the 2008 accident, and in any event, the reasoning so proffered, was tentative and not compelling. This is a matter of some significance since the plaintiff continues to experience some ill-effects from the 2005 accident, at least insofar as her neck and back symptoms are concerned. That is a significant discounting factor that cannot be ignored. 150It is for the plaintiff to prove that her loss of earning capacity has been substantially caused by the 2008 accident. In my view, the evidence does not reasonably satisfy that requirement: s 5D of the Civil Liability Act 2002. 151Furthermore, in any allowance for future loss of earning capacity, I consider that a discount for the potential adverse vicissitudes should be in a higher percentage than the conventional discount of 15 per cent that is usually applied. I consider this is justified on account of the plaintiff's pre-existing history of psychological problems and because of the continuing underlying physical effects of the 2005 accident. Those underlying matters continue to have an impact on the plaintiff's neck and back symptoms, and it would seem to follow that they also have an impact upon her psychological wellbeing. I consider that in providing for any future sum for loss of earning capacity, a discount for adverse vicissitudes of the order of 20 per cent should be applied on account of these matters. 152Furthermore, I consider that the medical evidence does not warrant a projection of the claimed loss over a period of a further 35 years to age 67 years. This is because there is no persuasive evidence that the plaintiff's neck, back and shoulder conditions, and her psychological reaction to those problems, will, as a result of the 2008 accident, be life long. For a conclusion to the contrary, the plaintiff bears the onus of proof: s 5D of the Civil Liability Act 2002. In the present circumstances, such proof would have to be in the form of satisfactory expert medical evidence, of which there is none in this case. 153The medical evidence in this case is silent on the prognosis for the continued duration of the plaintiff's complaints. If the medical experts were of the view the problems would continue indefinitely, I expect that they would have said so. In this case, the silence in the evidence therefore suggests otherwise. 154Accordingly, in these circumstances, although an imperfect process, it is necessary to identify some reasonable period of time over which to allow a buffer amount for future loss of earning capacity. In my view, based on a consideration of the medical evidence in this case, a period of a further 5 years would be fair and reasonable. 155In these circumstances, I consider that the possibility of the plaintiff's symptoms from the 2008 accident continuing so as to interfere with her continued earning capacity should be provided for in a buffer amount assessed at $50,000. 156I have tested the reasonableness of that sum by noting that it is slightly more than a projection of the plaintiff's submitted sum of $262.21 per week over 5 years on the 5 per cent discount tables (x 231.5) less 20 per cent discount for possible adverse vicissitudes. That analysis confirms to me that a buffer amount of $50,000 is a reasonable sum to award the plaintiff in the circumstances. This method of testing the buffer should not be taken to mean that I have accepted that the plaintiff is losing an amount of $262.21 per week net. 157Although the plaintiff has not made a claim for future loss of employer funded superannuation benefits, I consider that this buffer amount should be sufficient to cover that component as well. 158I therefore assess the plaintiff's claim for damages for future loss of earning capacity in the amount of $50,000.

Past domestic assistance 159The plaintiff makes a claim for past gratuitously provided domestic assistance for the value of 7 hours per week of such services provided to her by her family. This is a reduction from her evidence to the effect that she received such assistance for 2 hours per day. The plaintiff's submission was based on the claimed rate of $24.50 per week over a period of 202 weeks from the time of the accident until the commencement of the hearing, in the total sum of $34,643. 160The defendants do not accept that the plaintiff has established the threshold entitlement of 6 hours per week for 6 months: s 128(3) of the MAC Act. 161I do not accept the submission on behalf of the defendants in that regard. Having regard to the plaintiff's evidence and that of her husband concerning the need for, and the provision of household domestic assistance, and also the unchallenged medical opinion of Dr Endrey-Walder. I accept that an allowance of one hour per day or 7 hours per week is a reasonable allowance in respect of the past loss for this head of claim. 162In coming to that view I have not overlooked the medical evidence tendered by the defendants on this aspect of the claim to the effect that the plaintiff does not need such domestic assistance. Notwithstanding that evidence, I prefer the opinion of Dr Endrey-Walder on this topic because it is reasonable that the plaintiff's subjective complaints of pain, discomfort and restriction of movement would affect her ability to carry out the domestic tasks that she has described. 163The mandatory requirement of s 128(4) of the MAC Act is that such damages should not exceed the rate that is prescribed by statute. The Appendix to these reasons identifies the calculation of the value of the claimed domestic assistance services at the prescribed statutory rate over the period claimed, in the amount of $34,315.13. 164I therefore assess the plaintiff's claim for damages for past gratuitously provided domestic assistance in the amount of $34,315.13.

Future domestic assistance 165The plaintiff makes a claim for future domestic assistance in the weekly amount of $150 projected over a remaining life span of 53 years on the 5 per cent tables (x 998.9) to yield a projected amount of $149,970. That sum is based upon an assumed allowance of 3 hours per week for domestic assistance projected at $35 per hour and an assumed allowance of 2 hours per week for gardening assistance projected at $40 per hour. Both of these amounts having been particularised. 166In contrast, the defendants have submitted that no such allowance should be made. 167In my view, the submission on behalf of the plaintiff quantifying this head of damage is based on an overstatement of the effect of the evidence. 168There is no evidence that the plaintiff's need for domestic assistance will continue to be required for the remainder of her life span. This is so especially where, as was identified by Dr McCarthy, the plaintiff's injuries were transient. Insofar as the plaintiff's psychological reaction to her injuries perpetuates the need for these services, there is no sound reason for concluding that the claimed psychological sequelae will remain to affect the plaintiff indefinitely, which is the implication of the submission made on her behalf concerning this head of damage. 169I consider that the appropriate sum to be allowed as being fair and reasonable for future domestic assistance is to be derived from the projection of an allowance of an average of 5 hours per week at the commonly accepted commercial rate of $35 per hour. I have selected the weekly estimate of 5 hours because it is less than the 7 hours per week which I have allowed for past domestic assistance and it reflects the likelihood that over the ensuing 5 years the plaintiff's need for such assistance will gradually decrease as the transient nature of her injury recedes, and as her son grows older and becomes more independent. 170The projection of the value of 5 hours per week of domestic assistance on the 5 per cent discount tables over 5 years (x 231.5) yields an amount of $40,512.50. After applying a discount of 20 per cent on account of the potential adverse vicissitudes already identified, this yields an amount of $32,410. 171I therefore assess the plaintiff's claim for damages for future domestic assistance in the amount of $32,410.

Future medical treatment 172The plaintiff makes a claim for the provision of funds to allow for the cost of future medical treatment in the sum of $24,995. That sum was calculated on the basis of an assumed average cost of $25 per week for consultations, injections, medications and the like, but projected over the plaintiff's remaining life span of 53 years on the 5 per cent tables. 173On the question of treatment the plaintiff has not had physiotherapy in recent times because she said she cannot afford it. That is difficult to understand because if such treatment was medically indicated, it would ordinarily be expected that such treatment would have been paid for by the workers' compensation insurer. The plaintiff continues to take medication at an average value of about $15 per month. The plaintiff's submission did not include an amount for future physiotherapy treatment. 174In contrast to the submission made on behalf of the plaintiff, the defendants have argued that a buffer amount of $3000 should be a sufficient award for this head of damage. 175In my view, consistent with my findings concerning the period over which allowances should be made for future loss of earning capacity and future domestic assistance, I consider that an allowance of $25 per week for the ensuing 5 years would be reasonable. Recognising the inherent imprecision of the exercise of identifying an appropriate buffer for this component of the claim, I propose to allow the rounded sum of $3000 as was submitted on behalf of the defendants, noting that this sum is a little over 10 per cent of the claim that was advanced on behalf of the plaintiff. 176I therefore assess the plaintiff's claim for damages for future medical treatment in the amount of $3000.

Past out-of-pocket expenses 177The plaintiff makes a claim for past out-of-pocket expenses in the amount of $11,319.31, this being the amount paid by the workers' compensation insurer for the plaintiff's treatment expenses. I consider that sum, and the claimed basis for payment, as being reasonable and this sum is accepted by the defendants as being reasonable. I therefore assess the plaintiff's claim for damages for past out-of-pocket expenses in the amount of $11,319.31.

Summary of damages assessment 178My assessment of the plaintiff's damages is summarised as follows: (a) Past economic loss $16,557.79 (b) Fox v Wood $3,011.56 (c) Future economic loss $50,000.00 (d) Past domestic assistance $34,315.13 (e) Future domestic assistance $32,410.00 (f) Future treatment $3,000.00 (g) Past medical expenses $11,319.31 Total $150,613.79

Disposition 179As the plaintiff has succeeded in her claim against the first defendant Mr Gou, she is entitled to a verdict and judgment in her favour against that defendant with damages assessed in her favour in the amount of $150,613.79. In view of my finding that there was no unidentified vehicle involved in the accident, the claim against the Nominal Defendant should be dismissed, as should the defendants' cross-claims made on the assumption that an unidentified vehicle was involved.

Costs 180The plaintiff is entitled to have her costs of these proceedings paid by the first defendant Mr Guo on the ordinary basis unless she can show an entitlement for her costs to be paid on some other basis. 181As the Nominal Defendant has succeeded in resisting the plaintiff's claim, it is entitled to have its costs paid by the plaintiff. As the Nominal Defendant was only brought into the litigation as a result of the factual allegations made by the first defendant Mr Guo, which allegations were ultimately not accepted, I consider that the exercise of discretion on costs requires that the costs payable by the plaintiff to the Nominal Defendant should be reimbursed to the plaintiff by the first defendant, Mr Guo. 182I do not see any indication for such costs to be awarded on an indemnity basis as the allegations made had to be tested and were not otherwise groundless so as to justify an order for indemnity costs. In my view, where this case differs from the decision in Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [No 2] [2009] NSWCA 257 is that unlike that case, which was far from straightforward, here, the evidence of Mr Guo which obviously prompted the joinder of the Nominal Defendant and the issue of the cross-claims, was not of a kind that would, if accepted, result in a finding that there was an unidentified vehicle, or that the driver of that vehicle was relevantly negligent: Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [No 2], at [26] - [27]. 183I consider that these latter costs should also be assessed on the ordinary basis unless any party is able to demonstrate an entitlement to an order for those costs to be paid on some other basis.

Orders 184I make the following orders: (1) Verdict and judgment for the plaintiff Mrs Bidaya Eltana against the first defendant, Mr Peng Guo, in the sum of $150,613.79; (2) Verdict and judgment for the second defendant, the Nominal Defendant on the plaintiff's claim against that defendant; (3) The first defendant, Mr Peng Guo, is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered; (4) The plaintiff is to pay the costs of the second defendant, the Nominal Defendant, in defending the proceedings brought against that defendant, such costs to be paid by the first defendant, Mr Peng Guo, on the ordinary basis unless otherwise ordered, and that costs liability of the plaintiff is to be paid by the first defendant, Mr Peng Guo; (5) Each of the cross-claims brought by the respective defendants are dismissed; (6) Each defendant/cross-claimant is to pay its own costs of the dismissed cross-claims; (7) The exhibits may be returned; (8) Liberty to apply on 7 days notice if further orders are required; APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128 [7 hours per week] PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR 7 HOURS PER WEEK s.128 s.128 RATE RATE

06.06.2008 to 15.08.2008 10.00 $921.60 $23.04 $1612.80
16.08.2008 to 21.11.2008 13.85 $933.50 $23.34 $2262.81
22.11.2008 to 20.02.2009 12.85 $938.50 $23.46 $2110.22
21.02.2009 to 15.05.2009 12.00 $946.40 $23.66 $1987.44
16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $2276.38
22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $2157.90
21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2179.48
20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2225.36
22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $2219.06
21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $2215.46
20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $2240.65
19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $2306.31
21.05.2011 to 17.04.2012 47.42 $1026.00 $25.65 $8514.26 TOTAL $34,315.13

Amendments 19 September 2012 - Consent amendment to judgment amount pursuant to UCPR r 36.16(3A) and (3B). The judgment amount of $150,613.79 referred to in paragraphs [179] and [184] is increased in favour of the plaintiff to $185,000. Amended paragraphs: [179] and [184] 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: 19 September 2012

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Judgment (34 paragraphs)

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Cases Cited (7)