Harrison v Barnett [2017] NSWDC 288 | Case summary

District Court of NSW|2017-09-07|Before: Mr J

Judgment Introduction Preliminary Remarks The Plaintiff's Claim The Evidence The Plaintiff's Documentary Case Nancy Stephenson Report, Occupational Therapist Dr Karen Chau, Psychiatrist Dr Dennis Nave, Orthopaedic Surgeon Treating Clinical Notes and Medical Reports The Defendant's Documentary Evidence Dr Synnott, Psychiatrist (MAS) Dr Long, General Surgeon (MAS) Dr Alan Jager, Psychiatrist (MAS) Dr Petroff, Psychiatrist Stephanie Johnson, Occupational Therapist Dr Angelo Virgona, Psychiatrist Submissions The Defendant The Plaintiff Assessment of Damages Actuarial Factors Past Out-of-Pocket Expenses Future Out-of-Pocket Expenses Past gratuitous care Future commercial care Summary of Assessment of Damages ORDERS

Introduction

The plaintiff was born in December 1976 and is now 40 years of age.
These proceedings relate to injuries suffered in a motor vehicle accident over 15 years ago on 7 August 2002. Delays of lengths such as this are contrary to the underlying objective of the Motor Accidents Compensation Act 1999 ("MACA") and the administration of justice generally (s56 Civil Procedure Act 2005). The reasons for the delay are exposed to some extent, in the preliminary remarks below.
Liability in the proceedings is not in issue and contributory negligence is not alleged. The only issue is the assessment of damages.

Preliminary Remarks

This matter has had an unfortunate history. I am informed by the parties that there have been two Determinations by the Claims Assessment and Resolution Service (CARS) of the Motor Accidents Authority. That is the proper forum for claims of this nature.
Both Determinations were challenged by the insurer in the NSW Supreme Court and the claim was remitted to CARS for re-assessment.
After two failed assessments at CARS, the claim was exempted. I was informed by senior counsel for the defendant that the matter had been exempted "because the insurer had made an allegation of fraud in relation to those documents" (relating to the provision of care) [T87.10]. Why the application had not been made at an earlier time was not explained.
More particularly, senior counsel for the defendant read part of the CARS Determination in relation to the exemption including the allegations made by the insurer which resulted in the exemption being granted. The following was stated: (a) the claimant and Susan Powell together had knowingly created false documents, namely invoices for care, in an attempt to mislead the insurer in relation to the nature of the claim for past care provided with the claimant following this accident; (b) the claimant and Phillip Powell together have knowingly created a false document, namely an employment contract in an attempt to mislead the insurer in relation to the nature of a claim for loss of earnings and loss of earning capacity as a result of the injuries sustained in the accident. [T88.35-43].
These allegations were serious and warranted an Application for Exemption from CARS so that the question of fraud could be determined in proceedings before a court. I note that pursuant to s116 of MACA the insurer "must take all such steps as may be reasonable to deter and prevent the making of fraudulent claims". Had the matter been pursued then it could have resulted in criminal charges against one or more of those involved for forgery, fraud and breach of s117 of the MACA.
In the Reasons for Determination of the Application for Exemption, the Principal Claims Assessor further stated: In my view the nature of the allegations made against the claimant, Susan and Phillip Powell are extremely serious. They carry potential prosecution … in the nature of the serious allegations that are made evidence may need to be given in open court … I am of the view that in order for the reliability, claimant's evidence will be properly tested (sic). Like the hearing in excess of 1 day will be required … and therefore satisfied that going to the serious nature of the allegations now made, the nature of the hearing that will be required to address those allegations, this is no longer suitable for an assessment at CARS. [T88.45 - 89.7].
The plaintiff was then placed in the position of having to commence proceedings out of time which required an application for an extension of time (s109 MACA) and the provision of an explanation which was full and satisfactory (s66 MACA). As the proceedings were being commenced some 13 years after the accident and 10 years after the expiration of the limitation period, the plaintiff's chances of obtaining the necessary extension were by no means certain.
Despite having put the plaintiff in this position by the late application for exemption, the insurer opposed the granting of leave for an extension of time. When leave was granted by this Court, the insurer then sought leave to appeal the decision in the NSW Court of Appeal. The application for leave was dismissed (Barnett v Harrison [2016] NSWCA 184 (26 July 2016)).
Notwithstanding the allegation of the false and misleading conduct made against the plaintiff and others at CARS, no such matter was pleaded in the proceedings before the Court. Fraud or breach of s117 of MACA were not alleged. Given the seriousness of the allegations raised on the Exemption Application, one would reasonably have expected the insurer to plead fraud in its Defence, as is required if it is to be alleged pursuant to Part 14, rule 14(3) of the UCPR.
There was no apparent reason why the insurer's position changed so significantly between the time of making the Exemption Application and the filing of the Defence in this Court. It raises serious question as to the bona fides of the insurer in making the application in the first place.
My understanding of the fraudulent conduct complained of by the defendant is that it occurred in the period from the accident (2002) through to about 2009.
As I reminded senior counsel for the insurer his client has duty "to take all such steps as may be reasonable to deter fraudulent claims" (s116 MACA). The insurer has failed to discharge its duty as a licensed insurer under the Act.
At the hearing, the plaintiff abandoned any claim for gratuitous care during the period 2002 to 2009 and restricted the claim to a period from 16 May 2009. It seems that the insurer took the view that as the plaintiff was confining her claim to a period after the alleged suspicious behaviour was engaged in, it was no longer open to it to maintain the allegation of fraud. This does not follow. If the insurer had a genuine belief that the plaintiff and others had engaged in fraud by the production of fake documents in the period 2002 to 2009 then such conduct is not made less fraudulent by abandoning a claim in respect of same for that period. In fact, the abandonment of what otherwise appeared a valuable claim ought to have heightened the insurer's suspicion and its resolve to prove fraud.
The alleged conduct involved a contract between the plaintiff and others for the provision of domestic services. It also involved the creation of other false documents, namely invoices for care said to have been provided and receipts for payments made by the plaintiff. On its face, this was a complex arrangement designed to obtain a financial advantage by deceit.
Whilst there was some cross-examination about an agreement between the plaintiff and Susan and Phillip Powell concerning the provision of care [T39.36 - 41.47], the closest it came to putting fraud in issue in the proceedings (even though not pleaded) was the following exchange: Q: You know, don't you, that one of the reasons that this matter is now in court and not before CARS for may I say, with regret, a third time, was because the insurer alleged that you and your ex partner's mother - the insurer alleged that you knowingly created false documents, i.e. those invoices. You that that's why we're here, don't you? A: No, I did not know that's why we were here. Q: Why do you think the matter was exempted from CARS? A: I think it's been appealed every time we had a decision. I think one time was for the invoices, but I don't think was proved that they were fraudulent. It was - yeah, there was never any intention like that, yeah.
That fell far short of putting the case for which the insurer had obtained the exemption from CARS. At trial, the insurer ran dead on the question of fraud.
After the witnesses had given evidence, I invited counsel to indicate what the Court was to make of the allegation of false and misleading conduct on the part of the plaintiff. Counsel for the plaintiff responded by saying that the alleged false and misleading documents were not being relied upon and that she was instructed not to pursue that aspect of the claim. That is hardly a satisfactory answer to the question.
Senior counsel for the defendant told the Court that he would be seeking to tender some documents (referred to as invoices) relating to the false and misleading conduct. That did not occur.
As mentioned, senior counsel for the defendant was reminded that his client had an obligation pursuant to s116 (stated as s117) to deter conduct of that type. That comment led to a recusal application on day 2 of the hearing which was dismissed after due consideration (see separate judgment).
The fact that the documents were not relied upon and any claim prior to 2009 was abandoned, does not overcome the issue of whether or not the plaintiff engaged in conduct which was false and misleading in a material respect within the meaning of s117. That is a matter which could still have been explored by the insurer but was barely touched upon. In the result, the material upon which the allegation of false and misleading conduct were based in order to obtain an exemption from CARS was not the subject of evidence in the proceedings. In those circumstances, the matter ought not to have been exempted from CARS.
This is especially so as the abandonment of the claim based on false documents occurred after the first CARS hearing and before the second. At the time exemption was sought, the insurer was aware that a claim on the fraudulent documents was not being pressed.
It is unfortunate that there is no mechanism to refer matters back to CARS after an exemption has been granted and circumstances change or the insurer's position has altered. The insurer's successful application to exempt the claim from CARS has resulted in the parties incurring unnecessary expense and has also occupied Court time in circumstances where these proceedings ought not to have been commenced in this Court. The Court's capacity is limited and the waste of its time not acceptable.
Costs incurred unnecessarily include the cost of the exemption application, the cost of commencement in this Court, the cost of the application for an extension of time, the cost of the application for leave to appeal regarding that decision and the cost of a three day hearing in this Court. Those costs were incurred as a direct consequence of the insurer's decision to allege fraud, an issue upon which it failed to adduce any evidence.
The circumstances which came to exist here were not dissimilar to those in Gordon v Troung (No 2) [2014] NSWCA164 (26 May 2014). That case occupied five days of court time following an exemption from CARS. The reason for the exemption was the insurer's denial of liability. On the first day of hearing in this Court, the defendant admitted liability making the exemption from CARS futile.
Justice Simpson with whom MacFarlan JA agreed referred to the objects of MACA set out in s5(1). The second stated objective is to encourage early resolution of compensation claims. Indeed the entire system under MACA is directed to that objective requiring the early provision of particulars and the like.
The Court (by majority) ordered that the plaintiff's costs of the first three days of the trial be assessed on an indemnity basis.
My preliminary view is that, subject to any other feature of the case of which I am not aware, the plaintiff should be entitled to all of the costs referred to in paragraph 27 above, assessed on an indemnity basis. I will not make that order unless the plaintiff makes that application and both parties have had the opportunity to be heard. It is for that reason that the costs of these proceedings will be reserved and the parties are invited to address as to any particular costs orders that might be sought.
In making these comments it is not intended to cast any doubt over the character or reputation of any person to whom I have referred.

The Plaintiff's Claim

The plaintiff is not entitled to damages for non-economic loss as she fell below the threshold under the Motor Accidents Compensation Act 1999 ("the Act"). A claim for economic loss is not advanced. The plaintiff's claim comprises the following heads of damage: 1. past out-of-pocket expenses; 2. future out-of-pocket expenses; 3. past gratuitous care; 4. future commercial care.
In analysing the evidence, given the limited nature of the claim advanced by the plaintiff, I do not intend to deal with evidence, either oral or documentary, which does not bear upon those heads of damage, unless otherwise relevant.

The Plaintiff's Oral Evidence

The plaintiff's evidence was generally consistent with the events referred to in the Chronology (Exhibit A). As mentioned, she was born in 1976 and was 40 at the date of trial. She was 25 years of age when the accident occurred on 7 August 2002.
The plaintiff had four children with Matthew Powell ("Matthew") who also gave evidence. They had four daughters: 1. Devaki (born in 1994, now 23 years of age); 2. Jatila (born in 1998, now 19 years of age); 3. Ruby (born in 2000, who sadly died in 2010); and 4. Bessie (born in 2002, now 15 years of age).
The accident occurred on 7 August 2002. At that time, the plaintiff was 40 weeks pregnant and Bessie was born the next day.
When asked what she felt upon impact, the plaintiff described the seat belt tightening under her stomach. The seat belt was fitted in such a way that it was not over her shoulder but simply around her waist and on impact, it pulled in that area causing pain. The plaintiff hit her head on the dashboard of the car and her left ankle hit the firewall of the car. As her feet were pushed forward she heard two loud cracks which she believed was the sound of her ankle breaking. From her description, it was plainly a traumatic event.
Although her father-in-law collected her from the scene of the accident and took her home, she was later taken to Murwillumbah Hospital. The plaintiff was very concerned for the welfare of her unborn child as she did not feel the baby moving for a long time after the accident. This obviously added to the trauma of the event.
Upon arriving at Murwillumbah Hospital, x-rays of the plaintiff's left ankle were performed. She was told that it was broken in two places and that she would need surgery but that nothing could be done until her child had been born. She was in a lot of pain and given only Panadol, presumably as she was with child.
Bessie was born by involuntary Caesarean section the day after the accident.
A few days later, the plaintiff was taken to Tweed Heads Hospital to have her fractured ankle repaired. Bessie remained separated at Murwillumbah Hospital which caused the plaintiff some anxiety. She told the Court that by reason of that separation she was a mess.
The plaintiff was later taken back to Murwillumbah Hospital and discharged a few days later.
The plaintiff was on crutches for about three months after the accident and would have been heavily dependent upon assistance but a claim for that is not pressed.
Physiotherapy commenced in late 2002 and has continued on and off over the years since the accident. It focused on the plaintiff's left ankle and low back.
In October 2002, the plaintiff saw her GP, Dr Bearman. Dr Bearman assessed the plaintiff as suffering from post-partum depression due to trauma. A counselling plan was put in place and the plaintiff commenced attending the Coorparoo Mental Health Centre for treatment.
At about the same time, Dr Bearman prescribed Panadeine Forte for pain relief.
The plaintiff was re-admitted to hospital on 31 October 2002 in order for the screws to be removed from her left ankle. She consulted Dr Bearman on 6 November 2002 at which time it was recorded that following the removal of hardware the wound had healed without infection. It is also noted that the plaintiff was having twice weekly physiotherapy for her back which was improving.
Some hardware remains in the plaintiff's left ankle. She described ongoing pain and swelling to her ankle which varied depending upon the level of activity in which she engaged. On occasions the pain would radiate up her left knee and thigh on the left side. Speaking in the present tense, the plaintiff said that radiation of the pain such as that described was "pretty constant" [T25.8].
The plaintiff also gave evidence about the rolling of her ankle. She said that it occurred about once a week and that she fell over a lot. There is no mention in the plaintiff's clinical notes of complaints about such matters, a fact relied upon by the defendant in challenging the plaintiff's credibility. As mentioned below, the plaintiff has provided histories of this to other examining doctors.
The plaintiff and Matthew separated in about March 2003. The plaintiff then went to live with her sister. The two youngest children (Ruby and Bessie) went with the plaintiff to Queensland to stay with the plaintiff's sister and the older children stayed with their father.
When asked what caused the break-up, the plaintiff said "depression and stress".
The plaintiff obtained counselling and psychological treatment from Kathy Smith and later Ms Drake whom she continues to see at the present time. The attendances were covered by the Mental Health Plan generated by her General Practitioner.
In about 2010 or 2011, the plaintiff took Lexapro and later Cipramil for depression. She ceased taking anti-depressant medication as it was affecting the pain relief medication (Tramadol).
She would take two to three Tramadol per day of 150 mg. They cost about $6.00 a packet and she would get them on repeat prescriptions from her GP.
The plaintiff also now takes Endone 5 mg which costs around $6.00 per box. She also takes Valium, two to three tablets per day of 5 mg strength.
Over the years, the plaintiff has attempted to reduce the pain-relieving medication but that has not been sustainable as the pain in her back and ankle is not otherwise bearable.
As mentioned, she ceased taken anti-depressant medication as she gave priority to treatment of the pain rather than her depression.
The plaintiff described her current accommodation arrangements. She lives in what was described as a unit comprising one bedroom, a bathroom, kitchen, small lounge-room and a verandah. As I understood her evidence, her former partner's parents, Phillip Powell ("Mr Powell") and for a period Susan Powell ("Mrs Powell") lived in a separate unit downstairs. The two floors were separated by a set of about 20 stairs. It was necessary for the plaintiff to traverse those stairs not only to enter and leave her unit but to access the laundry which was situated downstairs.
The plaintiff described her daily routine which, due to poor sleep caused by pain, would normally commence after sleeping until 11am or midday. At around that time, Matthew would come over and assist her with exercises and the like, prescribed by her physiotherapist.
My impression is that the plaintiff relied upon Matthew largely for motivation. She said that on the days that he did not come around, she would stay in bed. She stated "if I'm not prompted or encouraged to do things I don't have the motivation" [T30.48].
Matthew would come around to the plaintiff's unit about three or four times a week. He would encourage her to get dressed, do her hair, have a shower, brush her teeth.
The plaintiff said that Matthew would text or call her to remind her to take her medication. Later, in cross-examination, she was asked to access her phone and inform the Court of the last occasion upon which she had received a text message from Matthew to that effect. It turned out that it was some two years ago in 2015. The plaintiff explained that by saying that he generally calls her.
On the days that Matthew comes over, he will cook a meal. The plaintiff's unit has a gas stove and she has had difficulties in that she has burnt things and has left the gas switched on unattended as she is very forgetful.
In addition to meals and the like, Matthew will also perform a general tidy up around the house, put on a load of washing, change the linen if necessary and take the plaintiff out to do the shopping.
When asked to estimate the amount of time Matthew spends with the plaintiff on the three or four occasions he comes around per week, she estimated three to four hours.
The plaintiff was asked about her social life. She said that she was spending a lot of time on her own and has not really sought friendships outside of her family because she suffers from anxiety. That has been the situation since the accident.
The plaintiff described anxiety associated with flying and travelling in cars driven by non-family members.
The situation in relation to the children was left a little unclear. The plaintiff gave evidence that her youngest daughter, Bessie, lived with Matthew. I had previously understood, that after the relationship breakdown in 2003, Ruby and Bessie lived with the plaintiff. As mentioned, Ruby passed away in 2010. The plaintiff said that when she had both daughters living with her, her mother-in-law, Mrs Powell, helped her a lot. The majority of that assistance was provided in the period for which a claim is not pressed.
In cross-examination, the plaintiff told the Court that Matthew was in receipt of a carer's pension for the care provided to the plaintiff. She was unable to say how long that had been the case but conceded that it had been for more than two years. The plaintiff was uncertain as to what the carer's pension related to, except that it was in relation to needs which she had.
Contrary to her evidence-in-chief, the plaintiff frankly agreed in cross-examination that on the days that Matthew did not visit she could get herself out of bed, could shower, was able to make breakfast, lunch and dinner.
As mentioned, she was questioned about the text messages to remind her to take medication. To some extent, she departed from her evidence-in-chief stating, "we probably talk more than text. He doesn't really like texting very much, yeah" [T37.7]. After examining her phone, the plaintiff confirmed that the last occasion on which she received a text message from Matthew reminding her to take her medication was in 2015.
The plaintiff was questioned about the invoices and/or receipts in respect of care for the period 2002 to 2009. She was asked whether it was correct that the invoices had been lost. She denied that they had been and said the problem was just the way they were set out. That was not further explored. The plaintiff agreed that at the first CARS hearing the invoices for care from Mr Powell were presented to the Assessor as were those from Mrs Powell (also referred to as Susan Monahan, in any event, Matthew's mother).
Senior counsel for the defendant told the plaintiff that he had copies of the invoices and that they suggested that the plaintiff paid Mrs Powell the sum of $12,830.00 between August 2002 and February 2003. The plaintiff was unable to confirm those precise details. She said that she did not write the invoices herself and did not have a recollection of them.
In relation to Mr Powell, the invoices in the possession of senior counsel for the defendant ranged between July 2003 and February 2008. The plaintiff said that sounded like the range of time when he was assisting her. It was put to the plaintiff that the invoices in the possession of the defendant exceeded $40,000.00. The plaintiff said that she had borrowed money from her family and she had also obtained a bank loan, suggesting that that money was applied towards those invoices.
As it transpired, the plaintiff obtained a bank loan for some $17,000.00. In relation to Mr Powell, the plaintiff said that not all of the invoices were paid.
It was put to the plaintiff that at the first CARS hearing, she pressed a claim that she had paid Mr Powell all of those invoices, said to total $40,715.00. The plaintiff could not recall. The matter was not further explored.
Senior counsel for the defendant put to the plaintiff that she was aware that the reason the matter was in Court and exempted from CARS was because the insurer had alleged that the plaintiff and Mrs Powell had "knowingly created false documents" being the invoices [T42.3]. The plaintiff said that she was unaware that that was why the matter was before the Court.
The plaintiff was then cross-examined about her driver's licence. At the time of the accident, she had a learner's licence but never progressed to her P plates. She had had her learner's permit since about the age of 18, so for about seven or eight years at the time of the accident. Despite renewing her learner's permit on several occasions, the plaintiff never, in that period, applied for a provisional licence. She denied that she was making up the evidence that she had proposed to get her provisional licence before the accident occurred.
The plaintiff was cross-examined about shopping. It was put to her and she agreed, that prior to the accident she would go shopping with her mother-in-law and that now she goes shopping with Matthew, suggesting that nothing had changed. The plaintiff rejected that suggestion and said that a lot had changed. She used to be able to be dropped off and would go off and do her own thing but it's completely different now [T43.38].
In relation to the aggravation in the left ankle caused by the remaining hardware, the plaintiff agreed with the proposition that she had never been to a doctor seeking to be put onto a public waiting list to have the screws removed.
The plaintiff was then asked questions about the clinical notes produced by Holland Park General Practice. It was suggested that between 11 September 2014 and 14 February 2017 she attended on about 12 occasions and that on only one occasion (3 March 2016) did she make a complaint about her feet. The plaintiff explained that by saying that it was understood (I take it between the plaintiff and her doctor) that pain killers were being prescribed for her ankle and low back pain.
She was further cross-examined about the absence of references to falling over or her ankle giving way. The plaintiff explained those absences in the notes by possibly failing to record the fact or by reason of the fact that the appointments were not lengthy.
In a further attack on the plaintiff's claim for damages in respect of domestic assistance, senior counsel for the defendant obtained a concession from the plaintiff that she was capable of sweeping the floors. The plaintiff said it was a motivation problem. She also complained about her problems with concentration.
The plaintiff had engaged in what she called a "hobby business". It involved painting and digital printing on shoes and the like.
This information appears to have been obtained from the plaintiff's Facebook account. The defendant downloaded some 500 pages which is said to comprise her account. The defendant relied upon the contents of that material to challenge the plaintiff about her motivation, concentration and socialisation. In respect of the latter, there was apparently one reference in the 500 pages of documents to the plaintiff meeting a friend on a single occasion [T53.25]. Of the 500 pages, only 21 pages were tendered in evidence (Exhibit 2), suggesting that the remaining 479 pages were unremarkable and did not assist the defendant's case.
In relation to the topic of the plaintiff's social interaction, the defendant also asked the plaintiff about her reference to Dr Virgona's report in which the plaintiff told Dr Virgona that she attended the Blues and Roots Festival at Byron Bay.
There was also some reference to the plaintiff unsuccessfully attempting to obtain tickets to take her daughter to see a band perform [T58.12].
Leaving aside the fact that the plaintiff communicated with others via Facebook, the evidence establishes that in the 15 years since the accident, she has met with a friend on one occasion and attended a musical festival with Matthew on one occasion. That evidence seems to support the plaintiff's case that she does not actively socialise, through lack of motivation, depression or otherwise.
The plaintiff was asked questions about her examination by Stephanie Johnson, an occupational therapist retained by the defendant. The examination took place in March 2011 and, understandably, the plaintiff's memory of that event had to some extent faded. She did, however, make appropriate concessions in relation to matters raised with her as to her capacity (see T62-63].
Similarly, the plaintiff made frank concessions in relation to her capacity to perform some domestic activities such as laundry [T64.5], cleaning [T64.24], meal preparation [T64.37], showering [T65.5] and dressing [T65.8].
The impression created from the cross-examination of the plaintiff is that whilst she is able to engage in some physical activities, it caused her pain and her real problem was lack of motivation and initiative caused by her psychiatric condition. She stated: Because I don't have the energy, I don't have the motivation, I don't really care that much about - yeah, I don't look after myself that well if someone's not prompting me, or … [T65.1].

Oral Evidence of Matthew Powell

Matthew was the partner of the plaintiff at the time of the accident. Together, they had four daughters, noted above. Three of the children survive.
He was called to give evidence about the assistance he had provided the plaintiff since the accident and, in particular, from 16 May 2009, being the nominated date from which the claim for past gratuitous care ran.
He told the Court that, prior to the accident, both the plaintiff and he would perform the housework, home school the children, shop, cook and clean. He thought that the plaintiff probably did more of those domestic chores than he did.
He confirmed that since about 2007 he has been in receipt of a carer's pension in respect of the assistance which he provides to the plaintiff. After addresses, counsel for the plaintiff sought to tender some Centrelink records in respect of Matthew. There was no objection and the records became Exhibit D. Those records revealed that Matthew received an average of $58.00 per week since 2009 (see letter from plaintiff's counsel dated 19 September 2017 (MFI 9)).
Matthew confirmed that the plaintiff has lived at her current address since 2007 and for the period 2007 to 2010 lived there with their daughters, Ruby and Bessie. That was the arrangement until Ruby's death in December 2010 from which time Bessie has remained under the sole care of Matthew. He told the Court that since May 2009 he has provided assistance to the plaintiff in the form of cleaning, getting her out of bed, general care, a bit of shopping and driving her to medical appointments and the like.
Matthew estimated that he would visit the plaintiff to provide assistance about five days a week, some weeks a little more and others, less. This was generally inconsistent with the plaintiff's evidence. When asked how many hours he spends per day assisting the plaintiff, he indicated that it was anywhere from two to 12 hours but on average probably six hours per day. My impression is that they enjoyed each other's company and not all of the time spent together was in response to a need created by the accident.
Matthew told the Court that he had to cook meals for the plaintiff as "she would probably burn the house down if I didn't" [T71.9].
Matthew said that he had observed the plaintiff leave the stove on with the gas running on quite a lot of occasions [T72.5-9]. This evidence is curious as it suggests that the plaintiff was cooking when Matthew was present.
Matthew said that he had observed the plaintiff leave the stove on with the gas running on quite a lot of occasions [T72.5-9]. He described the change in the plaintiff's personality describing her now as a bit of a zombie [T72.20].
When asked whether he intended to continue caring for the plaintiff in the future, he was quite adamant and said that he would not [T73.10]. Hence, the claim for future assistance is put on a commercial basis.
In cross-examination, Matthew confirmed that the only source of income he has had since 2007 is the carer's pension which he received to look after the plaintiff. In fact, he was unable to say when he last worked in paid employment except that it was prior to the 2002 accident.
At odds with the propositions put to the plaintiff about assistance provided by Mr Powell (Matthew's father) he said that his father had provided a little bit of care but not much [T75.25]. No attempt was made to explain this inconsistency.
Matthew maintained that he attended upon the plaintiff five days a week and denied that it was only three or four times a week which was the evidence of the plaintiff. This should be read together with his earlier evidence that some weeks it was a little more or a little less.
When asked what he would do on the occasions that he spent 12 hours providing her with assistance he said that he would motivate her and give her pep talks. He said the cleaning would take two hours.
Matthew described how he would assist the plaintiff with her shopping. He also said that he would spend between 10 minutes and two hours cleaning the bathroom.
Matthew confirmed that he observed the plaintiff leave the stove on many occasions. On those occasions he would be helping her cook. She would turn away from the stove and he would have to turn it off.
That was the extent of Matthew's oral evidence.

Other Oral Evidence

The only other oral evidence was the concurrent evidence of Stephanie Johnson and Nancy Stephenson, Occupational Therapists retained by the parties. I will consider their evidence in the context of the reports which they have provided, below.

THE PLAINTIFF'S DOCUMENTARY CASE

The plaintiff tendered three volumes of material (Exhibit A) mostly consisting of clinical notes relating to treatment received by the plaintiff over the past 15 years. Other than the report by the occupational therapist, Nancy Stephenson (commencing at page 137), the reports of Dr Nave (commencing at page 251) and the reports of Dr Karen Chau (commencing at page 169) I was not taken to any other material in Exhibit A.
Rather than embark upon a recitation of the clinical notes in Exhibit A, I will duplicate the plaintiff's Chronology into these reasons for judgment as it sets out references taken from the clinical notes which are those sought to be relied upon by the plaintiff. There are some matters in the plaintiff's Chronology relating to the progress of her claim through the CARS system and elsewhere which I will not repeat as they do not bear upon any relevant fact in issue.

Chronology

As part of Exhibit A, the plaintiff tendered a Chronology which, relevantly, reads as follows: 1976: Plaintiff born in New Zealand - now age 40. 1978-1982: Resided in Sydney. 1982: The Plaintiff's family moved to Murwillumbah in the north of New South Wales. 1990: At age 14, the Plaintiff and her family moved to Kingscliff. 1992: At the age of 16, the Plaintiff entered a relationship with Matthew Powell and had 4 children with Mr Powell. 2 July 1994: Plaintiff gave birth to her first daughter, Devaki. 20 February 1998: The Plaintiff gave birth to her second daughter, Jatila. 2 July 2000: The Plaintiff gave birth to her third daughter, Ruby (now deceased). 2002: Prior to motor vehicle accident, Plaintiff resided at [redacted] Terragon, New South Wales, with her partner and 3 children. 7 August 2002: Plaintiff involved in subject motor vehicle accident. 7 August 2002: Plaintiff driven by Mr Powell and admitted to Murwillumbah District Hospital until 16 August 2002. 8 August 2002: Plaintiff gave birth to her fourth daughter Bessie, by caesarean section. 12 August 2002: The Plaintiff was transferred by Ambulance to Tweed Head Hospital and under the care of Dr Turner, had an open reduction and internal fixation of the two fractures of the Plaintiff's ankle, and a plaster back slab was applied. That night the Plaintiff returned to Murwillumbah Hospital and discharged on 16 August 2002. 29 August 2002: Plaintiff consults Dr Bearman at Gladstone Road Medical Centre for treatment of comminuted fracture of the left ankle. Plaintiff in cast and using crutches. 9 September 2002: Plaintiff consults Dr Moore at Gladstone Road Medical Centre and prescribed Panadeine Forte for pain - "getting lower back pain from sitting so much. Was stressed." 27 September 2002: Plaintiff consults Dr Bearman at Gladstone Road Medical Centre and is prescribed Panadeine Forte. Plaintiff consults Dr Bearman, described as having experienced "enormous trauma, she had feared her baby was dead when the accident occurred, went into labour with unfixed fracture and inadequate pain relief. The baby was too hard to deliver and had to have caesarean, had to be separated from baby for surgery, felt cheated and out of control." 9 October 2002: Dr Bearman assessed the Plaintiff as suffering from post-partum depression due to trauma, counselling planned. Panadeine Forte prescribed for pain. 11 October 2002: Plaintiff consults Dr Bearman, Plaintiff was advised to attend Coorparoo Mental Health Centre for her post-natal depression. 15 October 2002: Plaintiff consults Dr Bearman complaining of back pain. Plaintiff had been assessed by a psychiatrist at Coorparoo Medical Centre. Plaintiff was "experiencing problems with sleeping due to the baby waking and anxiety and pain." Continue physiotherapy and anti-inflammatory medication. 6 November 2002: Plaintiff consults Dr Bearman - screw removed from left ankle on 31 October 2002, wound healed without infection. Having physiotherapy for back pain, twice weekly. Back improving. Panadeine Forte prescribed. 12 November 2002: Plaintiff consults Dr Bearman "reports severe pain from weekend drive to see family. Pain exacerbated by shopping or sitting at computer. Reports being unhappy, she can't go back to work and had to change her plans. Lies awake at night in spite of analgesia. Plan to return to family for help. Needs to continue physiotherapy and exercise and lose weight. Panadeine Forte prescribed." 14 January 2003: Seen by Dr Yao at Wollumbin Street Medical Centre - reports bad car accident in August 2002, had been on Panadeine Forte, had been seeing Anna How, repeat prescription of Panadeine Forte, advises had had prescription previously from Main Street Medical Centre. 16 January 2003: Plaintiff commences physiotherapy treatment with Ms Anne Warner. Mid-January 2003: Plaintiff separates from her partner, Matthew Powell and went to live with her sister at [redacted], Wynnum in Brisbane, following the break-up with her partner. Plaintiff's two younger daughters, Bessie and Ruby accompanied the Plaintiff, but her older daughters remained with Matthew Powell. 3 February 2003: Repeat script of Panadeine Forte and Cipramil. 11 February 2003: Attends Dr Yao for a repeat script - "She reported still having back pain, ankle pain and headaches. There was a discussion in relation to the potential harm of using Panadeine Forte." 9 May 2003: Plaintiff seen by Dr Bearman - "Says she is back in Brisbane looking for accommodation, she is separated and has her two youngest children. Her move has disrupted ongoing physiotherapy. She reports continuing pain and lower back and ankle pain noted as probably normal for long term recovery with the type of injuries suffered. Back pain noted to be exacerbated by looking after small children, moving house, and being overweight. Admits to using too much Codeine and wants to reduce. Takes about 6 Nurofen plus a day, planned to commence physiotherapy when settled. Codeine at night only and NSAID's during the day. She had stopped anti-depressants and as a consequence anxiety and heightened awareness stimuli had returned." 17 June 2003: Plaintiff consults Dr Bearman, advised Dr Bearman that she had been continuing with one or two Codalgin at night and NSAIDs during the say. "Stressed by separation but wants it to be permanent. Had not had physio for 3 months. Planned to continue with analgesic use, counselling, return to physio and get driver's licence." 10 December 2003: The Plaintiff commenced psychological treatment with Interrelate at Lismore. This treatment continued into 2004, but the Plaintiff cancelled a number of consultations because of family issues. 17 June 2005: Plaintiff attends Dr Panda. Gave history of motor vehicle accident and back pain, prescribed Tramadol and Valium. Beginning of 2006 to date: The Plaintiff has resided at [redacted], Wynnum North in the state of Queensland. 23 August 2006: Plaintiff attends Dr Quinn, gave history of motor vehicle accident in 2002 and 2006 ?? Tramadol and Valium prescribed. 17 November 2006: Plaintiff requests from Dr Douglas to provide further prescriptions for Tramadol. Cipramil Codalgin ceased. 17 November 2006: The Plaintiff completed a GP mental health plan and was referred to Ms Cathy Smith, psychologist. 23 November 2006: Plaintiff consults Ms Cathy Smith, psychologist, on referral from Dr Douglas. Noted that the Plaintiff had separated 5 months after the accident. 6 December 2006: Plaintiff attends Ms Cathy Smith, psychologist. 12 January 2007: Plaintiff attends on Dr Douglas. She tells Dr Douglas that she is seeing a physiotherapist weekly and a psychologist on 4 occasions which help with anxiety. Said she was managing her children better and had cut back on her Tramal. Weight noted to be still 94.5kg and BMI of 35.1. 10 May 2007: Plaintiff seen by Dr Alapatt at Victoria Point surgery, reason for visit noted as back pain and anxiety. Prescribed Tramal and Valium. 1 June 2007: Plaintiff consults Dr Douglas, who notes that scripts were being obtained from another medical practice. 5 June 2007: Plaintiff attends Logan Central Medical Centre and is attended by Dr Wright who prescribes Tramal. 19 June 2007: Plaintiff attends Logan Central Medical Centre. Advises the doctor that she was on a care plan for physiotherapy and amended health care plan for counselling in context of previous motor vehicle accident. Plaintiff reported chronic ankle and back pain, wants to lose weight, may need orthopaedic review. Script for Valium prescribed. 26 September 2007: Plaintiff consults Dr Cheng at Logan Central Medical Centre. Script for Valium and Tramal prescribed. 16 October 2007: Plaintiff consults Dr Collins at Logan Central Medical Centre. Script for Valium and Tramal prescribed. 6 December 2007: Plaintiff attends Dr Lee-Stree at Logan Central Medical Centre. Mental health care plan reviewed. Seeing orthopaedic surgeon in relation to ankle. Script for Lexipro and Valium prescribed. 6 February 2008: Plaintiff seen by Dr Seedat. Chronic back pain. Requires Tramal. Review lifestyle. Advised to eat less and walk more. Noted to be single and on a disability pension. Tramal prescription provided. March 2008: Plaintiff comes under the care of Dr Susan Drake, psychologist at Logan Central Medical Centre. 26 March 2008: Plaintiff attends Logan Central Medical Centre, obtains a prescription for Tramal. 15 April 2008: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 21 August 2008: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 29 August 2008: Plaintiff attends Logan Central Medical Centre, back noted to be stiff and restricted movement. Prescribed Tramal and Valium 30 August 2008: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 23 September 2008: Plaintiff attends Logan Central Medical Centre and is seen by Dr Collins. Requests physiotherapy for back pain and abdominal pain. Had recently had pancreatitis and an admission for cholecystectomy. Prescriptions for Lexipro, Valium and Tramal. 7 October 2008: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 26 November 2008: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 22 January 2009: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 26 February 2009: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 12 March 2009: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. MAS Assessment of Assessor Long - injuries caused in the motor accident: Left ankle - fracture dislocation involving fractured medial malleolus. 1 May 2009: Left fibula - fracture of lower fibula. Lumbar spine - muscular ligamentous strain. Cervical spine - muscular ligamentous strain. 9% whole person impairment: 5% for lumbar spine, 4% for left lower extremity. 24 July 2009: MAS Report of Assessor Synnott - post traumatic stress disorder, major depressive disorder, social phobia, GAD, 9% whole person impairment. 23 December 2010: Plaintiff's youngest daughter Ruby, passed away. 25 January 2011: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. Ruby, age 10 was diagnosed with a tumour on 28 November and passed away of 23 December. 1 February 2011: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 8 February 2011: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 28 August 2011: The Plaintiff attended a CARS Assessment at 1 Oxford Street, Sydney before Assessor Cowley. 20 October 2011: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 3 November 2011: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 28 August 2012: The Plaintiff attended a second CARS Assessment in front of Assessor Daley. September 2012: Plaintiff came under the care of general practitioner Dr Jane Collins at Holland Park General Practice. From 2012 to date: The Plaintiff continues under the care of Dr Jane Collins at Holland Park General Practice. 25 May 2015: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 4 June 2015: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 18 June 2015: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 23 July 2015: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 6 August 2015: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 20 August 2015: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 24 April 2016: Report of Dr Susan Drake to Dr Jane Collins "My assessments lead me to conclude that it is likely that Tulasi is suffering from a primary diagnosis of a 309.81 post-traumatic stress disorder, with a secondary and co-morbid diagnosis of 296.33 major depressive disorder recurrent and severe without psychotic features." 26 May 2016: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre. 10 February 2017: Plaintiff attended Ms Drake, psychologist at Logan Central Medical Centre.

It should be noted that from the version of the Chronology provided in Exhibit A, I have deleted the entries of 28 August 2011, 12 October 2011, 28 August 2012, 22 February 2013, 21 February 2014, 12 September 2014, 12 November 2015, 26 July 2016 and the section which commences "Summary of more recent medical reports". The entries referred to are not relevant and the reports will speak for themselves.

Motor Accident Personal Injury Claim Form

This commences at page 1 of Exhibit A and is the Claim Form submitted to the defendant's insurer by or on behalf of the plaintiff in respect of the subject accident. It was signed by the plaintiff on 2 December 2002, within four months of the accident.
In answer to question 24 (at page 6 of Exhibit A) the plaintiff listed her injuries as follows:

two fractures in left ankle;
back injury;
pregnancy complications;
head injury.

In answer to the next question (also at page 6) the plaintiff was asked how the injuries were affecting her at the time of completing the Claim Form. The following was indicated:

walking (limited);
sleeping (sleep disorder);
back injury (activity reduction);
post trauma disorder.

The Claim Form also refers to the fact that the plaintiff had been treated in respect of her back, headaches, ankle and mental health. It is significant that there was no mention of a neck injury.
Attached to the Claim Form is a Medical Certificate which appears to be dated 15 November 2002 (page 10A of Exhibit A). Under the heading "Medical Diagnosis", the author of the report, Dr Bearman, GP, referred to the two fractures of the left ankle, a back injury and pregnancy complications. Again, no mention of a neck injury.
The date of initial examination by Dr Bearman was given as 29 August 2002, about three weeks after the accident.

The Plaintiff's Medico-Legal Reports

The index to the plaintiff's medico-legal reports refers to three reports which were controversial. The first by Susan Walters dated 28 July 2017. This report was objected to on the basis of late service and failure to comply with Court directions as to service of reports. The objection was upheld and the tender of the report was rejected (see separate judgment).
The report by Nancy Stephenson dated 28 March 2011 was objected to on the basis that it did not contain the acknowledgement of the Expert Witness Code of Conduct, as required by the Uniform Civil Procedure Rules. That objection was upheld and the report was initially rejected (see separate judgment). The deficiency was overcome by oral evidence provided by Ms Stephenson that it was her practise to read all of the material provided to her by her solicitors including the Expert Code of Conduct and that she had the requirements of that Code in mind when preparing her report of 28 March 2011. Ultimately, that report was allowed into evidence and commences at page 137 of Exhibit A.
The third disputed report was by Dr Giblin dated 15 March 2017. The defendant objected to the report on the basis that it had not been served. Ultimately, the plaintiff agreed with that submission and the tender of the report was withdrawn.

Nancy Stephenson Report, Occupational Therapist

The report of Ms Stephenson was prepared following a home visit undertaken on 28 March 2011. Although the report is somewhat dated, it is significant that the home visit was undertaken at the premises which the plaintiff still occupies.
Given that the plaintiff now confines her claim for past gratuitous care for the period from 16 May 2009 to date, I have not had regard to closed periods of assistance recommended by Ms Stephenson which pre-dated May 2009. Accordingly, the reference to the need for assistance for dressing, mobility, bed transfers, WC transfers, showering/bathing and eating no longer form part of the plaintiff's claim.
Ms Stephenson also expressed an opinion as to the need for child care and assistance (report page 18). As a claim under s15B of the Civil Liability Act 2002 (CLA) is not made, I have not had regard to the need for assistance of that type.
The recommendations of Ms Stephenson also include lawn mowing and gardening, car cleaning, vehicle maintenance and home maintenance. In view of the evidence given by the plaintiff and Matthew, I do not see how any of those claims are made out. Accordingly, regard has not been given to Ms Stephenson's recommendations in respect of those matters.
By reference to the table in section 4.4 of the report, the surviving claims relate to the following:

daily prompting of 30 minutes per day;
personal care (shaving and hair washing of 2 hours per month);
nail care of 1 hour per month;
shopping at 1.5 hours per week;
meal preparation of 1 hour per day;
cleaning at 3 hours per week;
laundry of 2 hours per week;
transportation of 10 hours per week.

All that comes to approximately 27.75 hours per week which Ms Stephenson maintains is ongoing.
In my opinion, Ms Stephenson's recommendations are excessive and do not reflect the evidence of the plaintiff. So much is acknowledged by the plaintiff's Amended Schedule of Damages which for the past makes a claim for gratuitous care of 14.31 hours per week and for the future 6 hours per week.
Ms Stephenson was required for cross-examination and gave evidence concurrently with Stephanie Johnson, Occupational Therapist retained by the defendant.
Ms Stephenson was cross-examined (commencing at [T115]). It became apparent during the course of questioning that Ms Stephenson had the opportunity of physically examining the plaintiff on the day of giving evidence (6 September 2017). The plaintiff carried out specific physical manoeuvres so that Ms Stephenson could observe limitations in her range of movement and the like [T116.5]. Unfortunately, the defendant's OT did not have the same opportunity and had not examined the plaintiff since 2011.
It was suggested to Ms Stephenson that her opinion as to the plaintiff's needs was reliant upon what the plaintiff told her about her complaints of pain. She agreed with that proposition [T116.12] and the following exchange then occurred: Turnbull: And you are reliant upon her in telling you about what her restrictions are in terms of range of motion and inability to do matters; is that right? Stephenson: To a degree, yes, however, you do observe a person doing functional range of motion and you use that information to also cross-check how they will do their functional activities. Turnbull: When you ask them to carry out those movements, what you're doing is looking at Ms Harrison, or any other person you're examining, to see what restrictions they have in those movements, aren't you? Stephenson: That's correct. Turnbull: That helps you determine whether they have a restriction in carrying out a particular domestic chore? Stephenson: It helps, yes. [T116.14-31].
There was then further cross-examination to the effect that the opinion of the occupational therapist expert was dependent on the complaints made by the plaintiff and the frankness of the restrictions in range of movement demonstrated by her. Significantly, however, Ms Stephenson, made the following statement: Stephenson: I assessed her ankle based on her, observing her walking; she had swelling, she had wastage to the calf. So both facts were also taken into consideration. [T118.5] (Emphasis added]. And: Turnbull: That would cause you to think from your experience, would it not, that there was no bony problem that the plaintiff had, sorry, this lady had, that would be causing her difficulties walking? Do you agree with that? Stephenson: No, because she had swelling. She had observable swelling. She had wastage to her calf. She had poor balance. So there are other factors there. I'm not just looking at an x-ray which I'm not qualified to do. So I would make my assessment on the functional assessment. [T119.26-34] (Emphasis added).
It was apparent that the opinion of Ms Stephenson was based upon a combination of factors. First, complaints made by the plaintiff. Secondly, observation of functional capacity demonstrated by the plaintiff upon examination. Thirdly, the objective evidence of swelling and wastage, observed by the expert.
It is not appropriate, in those circumstances, to limit the opinion of Ms Stephenson on the basis that its foundation is only as valuable as the reliability of the plaintiff.
Whilst I am of the opinion that the recommendations contained in her report are excessive, in light of the evidence provided by the plaintiff and Matthew, her report requires careful consideration and plainly demonstrated a need for assistance.
Ms Stephenson then went on to make recommendations in relation to equipment. There was no evidence adduced from the plaintiff as to the need for any of the equipment referred in the report and, frankly, some of the recommendations, for example, mobility scooter, appear unreasonable and excessive. I reject her opinion that the equipment referred to in her report is reasonable and necessary in the circumstances.
The next section of Ms Stephenson's report relates to therapy and support which she may require, including counselling, nutritionist, pre-cooked meals and incontinent nurse and pain management clinic attendance. In view of the evidence of the plaintiff, I do not consider any of those recommendations to be reasonable. In any event, I prefer the medical opinion of the experts retained by the plaintiff in respect of such matters.
Section 5 of the report by Ms Stephenson relates to the plaintiff's employment and makes a number of suggestions for the plaintiff's future work capacity and work options. As there is no claim for economic loss made by the plaintiff, I have paid no regard to the recommendations made by Ms Stephenson as to the plaintiff's employment capacity.

Dr Karen Chau, Psychiatrist

Dr Chau has examined the plaintiff on four occasions (30 April 2008, 28 July 2010, 7 December 2015 and 2 February 2017). The doctor has generated seven reports which commence in reverse chronological order at page 169 of Exhibit A. They depict a consistent picture of a person who has suffered psychiatric injury as a result of a motor vehicle accident.
In her initial report, Dr Chau described the accident as being a high speed head-on collision between the two vehicles. In relation to the plaintiff's reaction, Dr Chau recorded: She recalled feeling worried about the safety of her baby, feeling helpless and shocked. Ms Harrison stated that she was also in physical pain. When she got out of the vehicle she vomited. She stated that the other driver fled the scene after they threatened to call the police. Ms Harrison stated that as a result of the accident she experienced "a fractured ankle, back and head injuries and pregnancy complications". She stated that she went into labour the following day and required Caesarean section as her infant was in breech position. She stated that this was traumatic for her and she felt "out of control". She initially expected to have a natural birth. She stated that she felt in control of her three births previously as they were delivered by vaginal delivery. (Exhibit A, page 228).
Dr Chau set out in some detail the plaintiff's mental health symptoms. It is clear from her report that she accepted those complaints. Dr Chau also performed a Mental State Examination which identified difficulties with anxiety, concentration, insight and judgment. The opinion of Dr Chau is summarised as follows: Ms Harrison was a 31 year old mother of four with symptoms suggestive of Post-Traumatic Stress Disorder, Major Depressive Disorder, Social Phobia and Generalised Anxiety Disorder since the accident. She described having significant functional impairment as a result of this. This is complicated by chronic pain as a result of the injuries of the accident. There may have been a vulnerability due to her history of behavioural problems during her youth. Her excessive caffeine intake was probably perpetuating the anxiety symptoms. (Exhibit A, page 239).
Dr Chau then diagnosed Major Depressive Disorder, Post-Traumatic Stress Disorder, Social Phobia and a Generalised Anxiety Disorder. Her prognosis was guarded and the plaintiff's whole person impairment was assessed at 22%.
Nothing was made by the defendant of any behavioural problems during the plaintiff's youth. In any event, such matters are unlikely to affect the damages awarded as the defendant must take the plaintiff as he finds her (Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 per Windeyer J at [18], page 406). The fact that the plaintiff may have been vulnerable does not, without more, affect the determination of causation.
This assessment is significant as it took place in 2008, before the plaintiff's daughter was diagnosed with a brain tumour and subsequently died. It clearly relates the plaintiff's symptoms to the subject accident.
Dr Chau next saw the plaintiff on 28 July 2010, again prior to the tragic events in December 2010 relating to the plaintiff's daughter. Dr Chau again diagnosed a Major Depressive Disorder, Post-Traumatic Stress Disorder, Social Phobia and Generalised Anxiety Disorder.
The Doctor thought that the plaintiff was likely to have chronic anxiety and relapses of depression given chronicity of symptoms to date. She recommended attendance upon a psychologist and psychiatrist together with anti-depressant medication. Whole person impairment was assessed at 26%.
By letter dated 31 August 2010, the solicitor for the plaintiff sought Dr Chau's further opinion as to whether the plaintiff's psychological condition gave rise to a need for domestic assistance which was reasonable. Dr Chau expressed the view that domestic assistance was reasonable in light of the plaintiff's psychological injuries. That opinion was not tested by cross-examination.
Dr Chau's opinion regarding assistance is read with caution (Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 at [93]) when it comes to considering what award, if any, is to be made for domestic assistance. That will be done by a careful analysis of the evidence of the plaintiff and Matthew. Dr Chau's opinion informs the question of whether a need arises by reason of the injuries suffered in the accident.
The plaintiff was next seen by Dr Chau on 7 December 2015. On Mental State Examination, the plaintiff appeared to be anxious and also complained of flash backs and nightmares concerning the accident. Dr Chau again diagnosed Post-Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder and Social Phobia. In response to some specific questions (commencing at Exhibit A, page 198) the Doctor sets out with great clarity the reason underlying her diagnosis.
The last consultation with Dr Chau occurred on 2 February 2017 (Exhibit A, page 169). On this occasion, the plaintiff complained that her lower back pain was becoming steadily worse and was constant. Her psychiatric symptoms were generally unchanged. Dr Chau detected symptoms of anxiety and depression on examination. She diagnosed Post-Traumatic Stress Disorder, Major Depressive Disorder, Generalised Anxiety Disorder, Social Phobia, opiate and Valium dependence. The plaintiff's whole person impairment was assessed at 26%. Recommendations were made for future psychiatric treatment.

Dr Dennis Nave, Orthopaedic Surgeon

The plaintiff was examined by Dr Nave on two occasions (7 December 2007 and 6 July 2010). In addresses, senior counsel for the defendant took me to parts of Dr Nave's reports including the following statements:

"She does a little cooking, but appears to do no other chores, either inside or outside the home" (Exhibit A, page 262);
"From an orthopaedic point of view, sedentary work would be appropriate and possibly some light physical demand level employment, at least on a part time basis" (Exhibit A, page 262).

In relation to future treatment, Dr Nave expressed the opinion that there does not appear to be any orthopaedic treatment required for the injuries sustained. He stated that there was certainly no strong reason to remove the remaining metal from the left ankle. He suggested pain management and a long term exercise programme.
The plaintiff was re-examined by Dr Nave about two and a half years later. The plaintiff told him that her condition had basically stabilised. She described the ongoing difficulties which she suffered in her left ankle. Her lower back pain persisted as indicated previously.
In respect of the left ankle, given the absence of any degenerative change radiologically on x-rays taken eight years after the accident, Dr Nave expressed the opinion that it would not appear likely that degenerative change of a significantly symptomatic nature is likely to develop in the future.
Dr Nave was asked to comment upon the need for domestic assistance. Despite initially deferring to an occupational therapist for comment in relation to that, he then stated: Purely, from an orthopaedic point of view, it would be thought that Ms Harrison would be able to carry out the majority of domestic chores with care and done in stages even with some of the heavy chores causing some temporary increase in symptoms. (Exhibit A, page 256).
Again, I am mindful of the guidance from the Court of Appeal in Cosmidis, supra, concerning a medical expert's commentary on domestic assistance.

Treating Clinical Notes and Medical Reports

The remaining two folders which comprise Exhibit A consist of clinical notes which, as mentioned, are relevantly summarised in the Chronology, extracted above. I do not intend to refer specifically the clinical notes or reports particularly as I was not taken to any particular document in support of the case of either party.

Dr Synnott, Psychiatrist (MAS)

Dr Synnott and two other Doctors (Dr Long and Dr Jager) assessed the plaintiff on the referral by the Medical Assessment Service. The purpose of all three assessments was to determine if the plaintiff exceeded the threshold for damages for non-economic loss of greater than 10% whole person impairment. On none of the occasions on which she was examined was she found to be greater than 10%.
The reports, nevertheless, formed part of the defendant's tender bundle (Exhibit 1). Whilst regard will be had to the contents of the reports by those experts, their opinions are approached with caution given that they are not compellable witnesses. Nevertheless, they are independent experts whose opinions warrant consideration.
Dr Synnott examined the plaintiff on 21 July 2009 generating a Certificate on 24 July 2009. He set out the specific complaints made by the plaintiff regarding her psychiatric state. After considering those matters and performing a Mental State Examination, Dr Synnott found that the plaintiff suffered from Post-Traumatic Stress Disorder, Major Depressive Disorder, Social Phobia and a Generalised Anxiety Disorder caused by the accident.
He cautioned, however, that: A significant component of her presentation relates to her passivity and (what appears to be) dependent behaviour - on the evidence available, it appears this pattern was present prior to the MVA, and it suggests a significant contribution to the current picture from her premorbid personality and 'coping style'. There was a premorbid vulnerability which is significant in her current presentation. (Exhibit 1, page 14).
Again, nothing was made of any pre-existing condition and for the reasons given do not affect the assessment of causation.
Dr Synnott assessed a 9% whole person impairment which indicates a significant degree of psychiatric disability.

Dr Long, General Surgeon (MAS)

The plaintiff was assessed by Dr Long on the 22 April 2009. He was asked to assess the left ankle, left fibula, lumbar spine, cervical spine and head injuries.
Dr Long found that the following injuries were caused by the accident:

left ankle - fracture/dislocation involving fractured medial malleolus;
left fibula - fracture lower fibula;
lumbar spine - musculoligamentous strain;
cervical spine - musculoligamentous strain. Given the absence of any contemporaneous or ongoing complaint of neck pain I do not accept Dr Long's opinion in his regard.

Dr Long assessed a whole person impairment in relation to the lumbosacral spine at 5% and left leg at 4% giving rise to a total of 9%, again, indicative of a significant physical injury.

Dr Alan Jager, Psychiatrist (MAS)

Dr Jager was asked to assess whether the plaintiff was suffering from chronic PTSD and major depressive disorder caused by the motor vehicle accident and, if so, to determine the extent of whole person impairment.
The following appeared under the heading "Current Functioning" (Exhibit 1, page 40): She still has a full time carer and needs lots of help currently from her mother-in-law. Her mother-in-law does the cooking and cleaning. She still goes for walks with Matt but does nothing else in the way of social and recreational activities. She is driven everywhere because she remains very anxious. She has made no new friends since the accident but has reconciled with her mother at one point but the relationship became distant again. Her concentration remains troubled and she can read only 4 or 5 pages over about 10 minutes and focus on a movie for only up to 30 minutes. … (Exhibit 1, page 40).
That history was provided within several weeks of the hearing. There are a number of aspects of the plaintiff's current functioning as reported to Dr Jager which appear to be inconsistent with her evidence. The first and most obvious is that the plaintiff apparently informed Dr Jager that she was receiving a lot of help currently from her mother-in-law who does cooking and cleaning. There was no evidence to that effect from the plaintiff or Matthew. Their evidence suggested the sole source of assistance as coming from Matthew. I also note that Mr and Mrs Powell were not called to give evidence in the proceedings. I therefore place no reliance on that history.
I am also mindful of the comments made by Basten JA in Mason v Demasi [2009] NSWCA 227 (31 July 2009) at [2]. Unfortunately, none of the experts were cross-examined in the present case. Of course, Dr Jager is not compellable in any event. I am reluctant to discount the plaintiff's sworn evidence on the basis of accounts provided to doctors, especially in circumstances where the expert was not a compellable witness.
Dr Jager found the plaintiff had persistent depression, anxiety and anger and, at interview, was dejected but displayed reactive emotional tone through a normal range. Dr Jager found that chronic Post-Traumatic Stress Disorder and Major Depressive Disorder (in remission) were caused by the subject accident. He assessed whole person impairment at 6%. He noted that prior to the plaintiff's daughter's death in 2010, Dr Chau had repeatedly assessed the plaintiff's impairment in the order of 24%. This permitted Dr Jager to query that the plaintiff made a substantial recovery and relied upon the opinion of Dr Virgona (see below) for support in that conclusion.
Nevertheless, Dr Jager stated "I determine that her accident accounts for all of her current impairment". I accept that opinion.

Dr Petroff, Psychiatrist

Dr Petroff examined the plaintiff on 18 February 2011. The report identified Matthew as the plaintiff's former partner who was then her carer, "best mate and support". At the time, the plaintiff was living in the same house as Mr Powell and the plaintiff reported that her former partner's father helps her in the court case and also supervises her and makes sure she takes her medication.
The plaintiff identified symptoms generally consistent with complaints made to other examiners.
The report shed some clarity upon the domestic arrangements. As mentioned, the plaintiff lives in the same building as Mr Powell who, like the plaintiff, is in receipt of the disability support pension. At the time of the examination the surviving children were living with Matthew, his sister and mother. It is said that the mother assisted the plaintiff with housework several times during the week. The plaintiff was driven to the medical examination in Sydney by Mr Powell.
Dr Petroff reviewed the reports of Dr Chau and Dr Synnott. He noted the diagnosis of Post-Traumatic Stress Disorder and stated: Whilst I reserve Post Traumatic Stress Disorder to horrifying experiences involving visual, auditory and olfactory stimulation provided in relatively normal individuals, I will accept the diagnosis of Post-Traumatic Stress Disorder even though I would prefer a diagnosis of Chronic Adjustments [sic] Disorder with Anxious, Depressed and Panicky Moods with symptoms of maximum severity. (Exhibit 1, page 50) (Emphasis added).
Curiously and without providing any real reason for the comment, Dr Petroff stated "My proper assessment of Ms Harrison's previous level of functioning is hampered by her tendency to minimise her disability prior to the accident". Some insight might be gleaned from his comments in relation to the medication she takes "Her use of Cipramil is quite appropriate considering her symptoms and also her vulnerable dependent personality". The plaintiff was not cross-examined about her disability prior to the accident or her tendency to downplay it. In any event, Dr Petroff was able to reach diagnoses.
In relation to prognosis, Dr Petroff stated: My feeling is that Ms Harrison will continue to remain dysfunctional chronically and no further improvement is likely to occur with the passage of time. I therefore consider that her injuries have stabilised. She will continue to be significantly disabled. (Exhibit 1, page 50).
In relation to domestic assistance, Dr Petroff makes some remark about the plaintiff's pre-accident situation and states: I suspect she minimises the contribution to the household tasks that her de-facto was providing. I certainly think that she is really quite dysfunctional with her strongly dependent traits and that she would need about four to eight hours a week input from those around her, namely Mr Powell (that is Mr Powell Snr) and his wife as well as Ms Harrison's carer. She has no other responsibilities but for herself. (Exhibit 1, page 51).
In a report dated 7 March 2011 (Exhibit 1, page 52) Dr Petroff was provided with some clinical notes and they included a reference to a history provided by the plaintiff to doctors of a chronic back pain present for five years in 1999. There was also reference to Scheuermann's disease. Further, there is also reference to neck pain pre-accident and need to take medication for same.
This led Dr Petroff to state: I was certainly of the impression when I interviewed Ms Harrison that she was minimising her level of dysfunction and disability prior to the accident in 2002. The information that you have supplied only further confirms her tendency to ignore her significant dysfunction and disabilities prior to the events of 2002. (Exhibit 1, page 53).
Leaving aside whether or not that is an overstatement, none of the allegations were put to the plaintiff and accordingly no weight will be placed upon it. Further, the pre-accident conditions referred to fell outside of the area of Dr Petroff's speciality.
In a further report dated 22 March 20011, Dr Petroff was asked to apportion the plaintiff's disability and needs between the subject accident and her pre-existing state (whatever that was). In an extraordinary report in which Dr Petroff makes comments which are either not explained or not made by reference to evidence, he stated: So whilst I still believe that it is impossible to untangle how much of her present mental state is as a result of the breech presentation and a subsequent need for a Caesarean in a vulnerable personality and how much was due to the accident itself, I am of the strong belief that well over half of her problems were already developing prior to the accident that led to her regressing to her present state of invalidity. (Exhibit 1, page 56).
He went on to apportion one third of the plaintiff's need for domestic assistance to the diagnosis of Post-Traumatic Stress Disorder. I reject that opinion.
In my opinion, Dr Petroff has failed to adequately expose his reasoning for the conclusions which he has reached. His opinion refers to a vulnerable personality pre-accident which does not absolve the defendant of liability for the full consequences of the accident. I find that Dr Petroff's opinion is unreliable and prefer the opinion of Dr Chau.
Whilst Dr Petroff's opinion hints at pre-accident conditions playing a role in her current make-up, the evidence falls far short of the burden the defendant carries in order for any such conditions to be relevant to the assessment or damages in this case.
In any event, the defendant's case was that there was nothing wrong with the plaintiff. That is not supported by its own medical evidence.

Stephanie Johnson, Occupational Therapist

Ms Johnson examined the plaintiff on just one occasion, that is, 7 March 2011 and generated four reports: 14 March 2011 (2 reports), 19 May 2011 and 15 May 2012. It was curious that she generated two expert reports dated 4 March 2011. Even she seemed unaware of that fact until it was raised with her in the witness box. I note, however, that in a subsequent report to the defendant's solicitor dated 19 May 2011, Ms Johnson refers to an amended report and confusion regarding the table on page 18 of her first report. The first report was tendered in evidence (as part of Exhibit 1). The amended report was tendered by counsel for the plaintiff (Exhibit C).
Ms Johnson spent two and a half hours with the plaintiff during her examination in 2011. The plaintiff identified her current symptoms by reference to low back pain, left ankle pain and psychiatric symptoms for which she was taking Cipramil and Valium. Ms Johnson confirmed that the plaintiff lived in the upstairs area of rental accommodation in Wynnum consisting of one bedroom, lounge, kitchen/dining and a bathroom. Matthew's father lived downstairs and his mother lived just around the corner.
The recommendations made by Ms Johnson were based upon a combination of reports made by the plaintiff and observations made by the expert herself (Exhibit 1, page 66). The plaintiff was independent of most activities although limitations were noted in relation to meal preparation, kitchen maintenance, house-keeping, laundry, bathroom cleaning, heavy household maintenance, shopping, transport and leisure/social pursuits. It was recorded by Ms Johnson that assistance was provided to the plaintiff by Matthew and his mother.
Ms Johnson made a number of recommendations in relation to assistance and the like. She makes clear in her report (Exhibit 1, page 172) that her recommendations relate purely to the plaintiff's physical limitations and defers to a psychiatrist as to any need for assistance arising from her psychiatric condition.
In the first version report dated 14 March 2011, tendered by the defendant, the need for assistance ends at 28 June 2003. It was the opinion of the expert that there was no need for assistance at the time of the examination (7 March 2011). Ms Johnson stated: Given her current physical capacity, it is considered that Ms Harrison should manage her day to day personal care and domestic activities. She may need to pace her activities over the week to avoid symptom aggravation (that is, undertake a heavy task per day rather than complete her duties in one day), however she should nevertheless manage." (Exhibit 1, page 75).
Ms Johnson's opinion in the second version of the report dated 14 March 2011 is different. She allowed for care on an ongoing basis.
For the period 2007 to December 2010 Ms Johnson allowed 1 hour and 30 minutes per day or 10.5 hours per week. That claim included, however, child care duties of 1 hour per day for which no claim was made. That leaves 3.5 hours per week for domestic assistance.
From December 2010 "onwards" Ms Johnson recommended 3.5 hours per week for domestic activities. She specifically referred to "assistance with heavy cleaning activities and laundering".
No attempt was made to explain the significant differences between the two versions of Ms Johnson's reports of 14 March 2011. It casts significant doubt over the reliability of her opinion. At least one version of her report demonstrates an ongoing need for assistance.
In her second report dated 19 May 2011, Ms Johnson comments upon the report by Ms Stephenson dated 28 March 2011. In that report, she expressed yet another opinion: Given that Ms Harrison resides alone, it is considered reasonable that her requirements for care is 3.5 hours per week, (0.5 hours per day) consisting of 1.5 hours of cleaning (low level cleaning, moving furniture, cleaning the refrigerator, turning the mattress, cleaning the bathroom if symptoms are aggravated etc), 1 hour shopping and 1 hour for laundering activities. (Exhibit 1, page 79).
In another report dated 15 May 2012, relating to the same examination on 7 March 2011, Ms Johnson provides yet a further, different opinion. The table setting out the need for care appears at page 16 of the report (Exhibit A, page 98). It identifies two relevant periods being May 2009 to December 2010 and then December 2010 to present and ongoing. The significance of the differential periods referred to is that in the first period, the plaintiff lived with her daughter who died in December 2010.
In the period May 2009 to December 2010, Ms Johnson considered that the plaintiff required 45 minutes per day on average with domestic activities, specifically heavy cleaning activities and laundering. That is, 5.25 hours per week. Thereafter, in the period from December 2010 and ongoing, the plaintiff was residing alone and, according to Ms Johnson, required only 0.5 hours of care per day for domestic activities. That is 3.5 hours per week.
Overall, I consider the opinion of Ms Johnson and the manner in which it has been presented quite unsatisfactory. Although it demonstrated that the plaintiff had an accident-related need for domestic assistance the report contained conflicting and imprecise estimates as to the extent of that need.
Ms Johnson told the Court that her reports were "substantially similar" in the opinions provided [T111.1]. That is plainly not the case.
In cross-examining Ms Johnson, counsel for the plaintiff attempted to obtain some understanding for the conflicting reports but despite her best endeavours, the evidence of the witness was left in a state of confusion as to what in fact her opinion was as to the level of care required.
In the end, the Court was presented with two conflicting opinions as to the level of care required. There was no dispute between the two occupational therapists that the need for care was due to the motor vehicle accident. The only difference was as to the amount of assistance. After a careful examination of the reports by Ms Johnson and having regard to the cross-examination of her, I find the opinion of Ms Stephenson more reliable than that of Ms Johnson. I do, however, maintain that the recommendations by Ms Stephenson are excessive.

Dr Angelo Virgona, Psychiatrist

Dr Virgona examined the plaintiff over the course of 90 minutes in May 2017. He noted that Matthew was the plaintiff's carer and that the plaintiff was in receipt of a disability support pension for "severe anxiety and depression, chronic pain in low back and ankle and PTSD". I assume that to be accurate as the plaintiff was not cross-examined as to the reason for her pension and no documents were tendered in respect of same.
The plaintiff's account of her day-to-day activities was generally consistent with that given in evidence.
She described her living arrangements as she had previously. At that time, she lived upstairs in a small unit and her former father-in-law lived downstairs. Her mother-in-law lived nearby.
Unlike almost every other psychiatrist who has examined the plaintiff, Dr Virgona was unable to be satisfied that she met the diagnostic criteria for PTSD. He did refer to her issues of motivation and lack of energy. Also, unlike every other psychiatrist who examined the plaintiff (including the independent MAS assessors) Dr Virgona made the following comment: She also reports not doing anything by herself. This may have had its origins in panic/agoraphobic symptoms, but this appears now to have become a lifestyle choice, encouraged by the attentions of her ex-partner. It appears a co-dependent relationship, and this seems to be the main factor in her not doing things alone. (Exhibit 1, page 116).
There is no evidence to support that conclusion and the propositions contained within it were not raised with either the plaintiff or Matthew. I reject Dr Virgona's opinion in this regard.
The closest Dr Virgona came to making any concession was to state that she may have suffered PTSD at some point but that the current symptoms do not warrant that diagnosis.
He stated: The main residual symptoms she has are anxiety associated with driving and more general anxiety about other issues in her life, consistent with a Chronic Adjustment Disorder with Anxiety. (Exhibit 1, page 116).
He recommended some treatment for her chronic pain syndrome.
Overall, I find the opinion of Dr Virgona difficult to accept. His opinion stands alone in terms of the severity of diagnosis. He also appeared to form an unfavourable impression of the plaintiff and her relationship with Matthew which is not borne out by any other evidence. I do not accept the opinion of Dr Virgona.

submissions

It is convenient to deal with the parties' submissions in the order in which they were presented (commencing at [T139]).

The Defendant

The defendant's position is that there should be no allowance for domestic assistance past or future. There was an agreed figure for past treatment expenses, referred to below. In respect of future treatment expenses, senior counsel for the defendant submitted that an allowance of somewhere between zero and a modest amount should be awarded.
As mentioned above, the defendant relied upon the expert opinion of Dr Nave, Consultant Orthopaedic Surgeon, retained by the plaintiff. Emphasis was placed upon Dr Nave's prognosis (Exhibit A, page 255): In relation to the left ankle, there is no evidence of degenerative change radiologically on x-rays taken virtually eight years from injury and hence it would not appear likely that degenerative change of a significantly symptomatic nature is likely to develop in the future as a result of the subject injury. In this respect the nature of the joint surfaces at the time of surgery is not known but if there was no abnormality of joint surface at the time of injury then future arthritis should not occur based on present evidence.
Given the absence of any evidence as to the nature of the joint surfaces at the time of surgery, I accept the opinion of Dr Nave and find that, on the balance of probabilities, the plaintiff is unlikely to suffer degenerative change or arthritis in the area of the fracture in the future.
Further, although no claim for economic loss was made by the plaintiff, the defendant relied upon the comments made by Dr Nave as to the plaintiff's fitness for work (Exhibit A, page 256). He stated: It would appear that Ms Harrison has not been gainfully employed since last review. From the orthopaedic point of view, it would be thought that Ms Harrison would be fit for sedentary work and some light physical demand level employment. Naturally, I cannot comment as to whether non-orthopaedic factors might be relevant here.
That opinion is relied upon by the defendant as demonstrative of capacity which may bear upon the plaintiff's claim for domestic assistance. I am cautious in the weight I attribute to Dr Nave's opinion in this regard as it is, quite properly, related to orthopaedic factors. There is other evidence of a psychiatric nature which suggests that the plaintiff requires assistance, notwithstanding her physical condition.
Senior counsel for the defendant drew attention to the comments by Dr Nave in his report dated 7 December 2007 (Exhibit A, page 264). In relation to the cervical spine injury and lumbar spine Dr Nave, expressed the opinion that it would not be expected that accelerated degenerative change would occur in the future as a result of the accident. I accept that opinion and make that finding.
It was submitted that from a physical perspective there is very little wrong with the plaintiff [T141.41]. I do not accept that submission. I accept the evidence of the plaintiff that she continues to suffer from pain and restriction of movement of her left ankle and lower back. These restrictions impact upon her ability to perform some domestic tasks and also creates a need for treatment in the future.
In relation to the psychological complaints made by the plaintiff, the defendant challenged any psychological diagnosis on the basis the plaintiff has demonstrated socialisation and motivation in the items extracted from the plaintiff's Facebook account. As noted above, the pages extracted a small proportion of the 500 pages of Facebook material which was generated by printing the plaintiff's Facebook account. I place little weight on the extracted Facebook material.
The defendant sought to undermine the medical opinions on the basis that the examiners were "reliant upon (the) veracity in what the plaintiff says" [T142.23].
The difficulty with this submission is that the defendant has tendered and relies upon the opinions of three psychiatrists, namely Dr Synnott, Dr Jager and Dr Petroff.
Dr Synnott had no difficulty diagnosing Post Traumatic Stress Disorder, Major Depressive Disorder, Social Phobia and Generalised Anxiety Disorder.
Dr Jager had no difficulty in diagnosing Post Traumatic Stress Disorder and Major Depressive Disorder (both in remission) and referred to symptoms of depression, anxiety and anger.
The defendant's own qualified psychiatrist, Dr Petroff, diagnosed a Chronic Anxiety Disorder with anxiousness, depressed and panicky moods with symptoms of maximum severity. He referred to a vulnerable dependant personality and stated that the plaintiff will continue to be "significantly disabled". That opinion forms part of the evidence in the defendant's case. It is presumed that it was tendered with the intention of the Court relying upon it.
In view of the evidence concerning the plaintiff's psychiatric condition (including Dr Chau in the plaintiff's case) I have no difficulty in finding that the plaintiff suffers from psychiatric conditions caused by the subject accident. Those conditions have affected the plaintiff from the time of the accident and continue to do so. They affect every aspect of her life. Such an outcome is hardly surprising given the traumatic events which followed the subject accident in which the plaintiff was concerned about the welfare of her unborn child, forced to undergo an emergency Caesarean section and then treated separately in another hospital for left lower limb fractures.
I accept the opinion of Dr Chau and find that, as a consequence of the accident, the plaintiff suffers from Post-Traumatic Stress Disorder, Major Depressive Disorder, Generalised Anxiety Disorder, Social Phobia and an opiate dependency. I am supported in that finding by the other psychiatrists who have examined the plaintiff. I also accept the opinion of Dr Petroff and find that the plaintiff is significantly disabled as a result of her psychiatric symptoms which are of maximum severity.
The defendant sought to rely upon the opinion of Dr Jager, Psychiatrist, who examined the plaintiff at the request of MAS. Despite noting symptoms of depression, anxiety and anger, he diagnosed Post-Traumatic Stress Disorder and Major Depressive Disorder but thought those conditions were in remission. He failed to identify any rational basis for suggesting that the conditions were florid. Dr Jager was not compellable as a witness in the case and, accordingly, his opinion could not be tested.
To the extent that Dr Jager's opinion differs from other psychiatrists, I prefer the opinion of Dr Chau, Dr Synnott and the defendant's own psychiatrist, Dr Petroff.
It was further submitted by the defendant that the Facebook material which was tendered "indicate(s) that she has an active involvement with a wide circle of friends" [T143.46]. I do not accept that the material which was tendered demonstrated that the plaintiff had an active involvement with a wide circle of friends. Communication with acquaintances via Facebook is passive socialisation. The other evidence established that the plaintiff has only met with one friend on one occasion, had been to one music festival with her partner and attempted to get tickets for one band performance with her daughter in the period since the accident occurred. This evidence unequivocally established that the plaintiff lives an extremely sheltered and socially deprived life.
The defendant's case relied substantially upon a rejection of the plaintiff as a witness of truth. In view of that fact, I specifically asked senior counsel for the defendant to identify every matter upon which he relied in submitting that the plaintiff ought not be accepted [T144.50]. In response, the defendant identified eight matters which, it was submitted, cast doubt upon the reliability of the plaintiff's evidence and/or the credibility of the plaintiff.
The first matter relied upon by the defendant in its attack upon the credibility of the plaintiff is what is referred to as the "vexed issue" of past care up to 2009. In my opinion, the cross-examination of the plaintiff on this topic did not affect her reliability or credibility. Whilst senior counsel for the defendant told the Court that he was in possession of invoices relating to care pre-2009 and was intending to tender same, the documents were not tendered. Although the matter was exempted from CARS because of an allegation of fraud by the defendant, the defendant failed to plead fraud, failed to cross-examine the plaintiff so as to establish fraud and elected not to tender the fraudulent documents said to be related to care prior to 2009.
In relation to the past care claim up to 2009, I am not satisfied that the evidence established that the failure to press such a claim reflects unfavourably upon the plaintiff's credibility. It was open to the defendant to pursue the matter. It chose not to. The Court cannot now act on suspicion or conjecture to impugn the credibility of the plaintiff.
The second matter relied upon by the defendant as adversely impacting upon the plaintiff's credibility was the text messaging which occurred between the plaintiff and her partner, Matthew. The plaintiff's evidence concerning this matter commenced in cross-examination at page 36 of the transcript: Q: He, you said, prompts you to take medication. Is that right? A: That's right. Q: And you said he will text you to prompt you? A: Or call, yeah. Q: Or call you? A: Yeah. Q: Does he text you regularly? A: We probably talk more than text. He doesn't really like texting very much, yeah.
Notwithstanding the statement by the plaintiff that Matthew probably calls her more than texts, the plaintiff was asked to identify by examining her mobile phone the last occasion upon which such a text was sent. It turned out that it was 2015. When confronted with that fact, the plaintiff accepted that she was mistaken about the frequency of texting [T39.14].
Much was sought to be made of what appeared to be a change in the plaintiff's evidence from the fact that Matthew would text her to prompt her to take medication to evidence that he would more often call to prompt her to take medication.
This evidence obviously bears upon the plaintiff's ability to concentrate as well as her memory and motivation. Whether the prompting came by way of text or phone call is of no great moment. I accept the plaintiff's evidence that she was mistaken when she referred to texting and do not consider that this matter reflects poorly, in any material sense, upon her credibility. In fact, when presented with the evidence she unhesitatingly said that she was mistaken.
The third matter relied upon by the defendant was the evidence from the plaintiff that her ankle would roll and she would, on occasions, fall. In particular, reliance was placed upon the fact that the GP's clinical records did not contain any reference to such occurrences. The plaintiff accepted that she probably did not make a complaint about those matters as it was "understood" between her and the GP that she required pain killers for her ankle and her back. She volunteered that not telling the doctor about the ankle rolling and falling over was probably something she had forgotten and that "the falls hadn't been noteworthy enough to go to the doctor" [T46.13].
The plaintiff's evidence as to the occurrence of these events is to some extent, corroborated by other evidence in the case. I note that Dr Nave, for example, referred to the feeling of the left ankle giving way (Exhibit A, page 261). Similarly, the plaintiff told Dr Long that her left ankle is unstable and that "it suddenly gives way as the foot unexpectedly turns inwards" (Exhibit 1, page 24).
Further, the plaintiff told the defendant's occupational therapist that "approximately once a fortnight she may roll her left ankle, falling to the ground" (Exhibit 1, page 61).
As mentioned above, there are good reasons why apparent inconsistencies may, and often should be approached with caution. In Demasi, supra, Basten JA referred to the decision of the Court in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] where five reasons were offered as justification of such caution. Without repeating those matters verbatim, they were: 1. the doctor who took (or did not) take the history has not been cross-examined about the circumstances of the consultations including the manner in which the history was taken, the time available to the doctor, the accuracy of the recording(s); 2. the fact that the history was probably taken for a purpose different to the forensic analysis undertaken at Court; 3. the record did not identify questions which elucidated responses but as, rather, a narrative; 4. the record is a summary by the doctor of pertinent matters; 5. a range of other factors such as language fluency and, importantly in the present case, the doctor's knowledge of the plaintiff's medical history.
In any event, I am satisfied that there is sufficient other material which describes the rolling of the plaintiff's foot and her falling which negates any adverse impact which the absence of such complaints from her GP's notes may otherwise have. For reasons well founded in principle, one must be cautious in respect of histories recorded by medical professionals.
The fourth matter relied upon by the defendant in the attack upon the plaintiff's credibility was the fact that she said that she had intended to obtain her provisional licence prior to the accident, despite being on her learner's permit for some eight years. The plaintiff's explanation for not obtaining her provisional licence prior to the accident was that she was too busy. In the eight years prior to the motor vehicle accident, the plaintiff had given birth to three children and at the time of the accident was pregnant with her fourth. She lived in an environment where she was supported in transport by her partner and her partner's parents. It does not seem surprising that she did not upgrade her licence in those circumstances. In any event, I do not regard it as a matter which materially affects the credibility of the plaintiff.
The fifth matter relied upon by the defendant concerning the plaintiff's reliability or credibility was her use of stairs. There is a set of stairs of about 20 steps which link downstairs to the plaintiff's unit upstairs. In her evidence-in-chief, the plaintiff told the Court that she would try to avoid using the stairs as she was scared of hurting herself [T29.33]. In cross-examination, the plaintiff agreed that she used the stairs on a daily basis but would try to avoid carrying laundry as it was bad for her back.
As I understand the submission, it is that in her evidence-in-chief the plaintiff said that she would avoid using the stairs yet in cross-examination agreed with the proposition that she used the stairs on a daily basis. The latter proposition was hardly surprising given that the plaintiff lived on the first floor of a two-storey building. No doubt, it would be beneficial to the plaintiff to live elsewhere but, of course, she is constrained by her physical and psychological conditions as well as her financial position.
I do not consider the answers given by the plaintiff to questions concerning the use of the stairs to give rise to any relevant inconsistency.
The sixth matter relied upon by the defendant was the extent of her socialising. I have already dealt with this. The evidence concerning her social outings went no higher than that in the 15 years since the accident the plaintiff has socialised outside of her home on just a few occasions. I do not see any inconsistency in the plaintiff's evidence or histories provided to the doctors concerning her social life such that her credibility would at all be affected by it.
The seventh basis upon which the plaintiff was challenged was the degree of her independence and motivation. It was submitted that the plaintiff originally gave evidence that on occasions when Matthew did not attend, she would not get out of bed and she later conceded in cross-examination that she was running a hobby business. The evidence concerning when the hobby business commenced and the extent of the plaintiff's participation in it was so vague as not to permit a finding which would affect her credibility.
The final matter relied upon by the defendant as showing inconsistency in the plaintiff's evidence so as to challenge her credibility related to the use of the stove. The plaintiff gave evidence that she was unable to cook but in cross-examination later agreed that she could prepare some meals. Evidence was given by Matthew as to the fact that the plaintiff would, on occasions, leave the stove on. That evidence suggested two facts. First, that the plaintiff was cooking and, secondly, that Matthew was present when he observed same. When Matthew was asked in cross-examination what the plaintiff was doing with the stove on, he stated that "I'm normally helping her cook". He said that he lets her do her thing and see how she goes but she hasn't for a long time" [T79.1].
I do not consider this evidence to be inconsistent with the evidence in cross-examination of the plaintiff. She fairly conceded that she was able to prepare light meals but that she would not cook by herself. That is entirely consistent with the evidence of Matthew that he has been present when she has used the stove.
Those were the matters relied upon by the defendant in making the submission that the plaintiff cannot be accepted. For the reasons provided above, I reject that submission. I find that the plaintiff was an honest witness who, at appropriate times, made concessions and did her best to answer questions in a way which was truthful.
In assessing the credibility of the plaintiff I also have regard to the fact that the subject accident occurred over 15 years and her memory for some matters may not be entirely clear. I also have regard to the fact that all psychiatrists consider that the plaintiff suffers from a psychiatric injury caused by the motor vehicle accident. It is not surprising that she would suffer from memory impairment, loss of concentration and motivation as a consequence, as examiners have observed.
Senior counsel for the defendant was invited to address the Court as to what should be made of the fact that Mr Powell and Mrs Powell were not called to give evidence. He invited an adverse inference and stated that they could have provided evidence which would have assisted the plaintiff's case, not just in relation to domestic assistance but as to capacity generally.
By reason of the fact that any care claim based on the provision of care by those witnesses was abandoned by the plaintiff, it is understandable that they were not witnesses whom it was necessary to call.
I do not consider that to be a complete answer to the plaintiff's failure to call these two witnesses who could have given evidence about their own observations of the plaintiff since 2002 when the accident occurred. I am cautious in my approach to how to deal with the decision not to call those witnesses. In my view, given the consistency between the evidence of the plaintiff and Matthew, together with the medical evidence, there was no particular fact in dispute or issue which made it necessary for these witnesses to give evidence. I am mindful of the remarks of Kitto J in Jones v Dunkel (1959) 101 CLR 298. In the present case, as the plaintiff's evidence was corroborated and otherwise uncontradicted, there was no need to call Mr Powell or Mrs Powell and I decline to draw any adverse inference.
The situation would have been completely different if the insurer had made good on its allegation of fraud. Not having done so, and declining to tender any material implicating the plaintiff, Matthew, Mr Powell or Mrs Powell, the foundation for any inference regarding those witnesses was not laid.
It was further submitted on behalf of the defendant that because Matthew had been in receipt of a carer's pension for some time, the care which he provided to the plaintiff ceased being gratuitous and, therefore, deprived her of damages. This is a matter which I will deal with below.
Finally, senior counsel for the defendant submitted that there was no medical basis or no evidentiary basis for awarding the plaintiff the damages she seeks. I do not accept that submission and need look no further than the defendant's own medical expert report from Dr Petroff to conclude that the plaintiff will continue to be significantly disabled by reason of the injuries (both physical and psychiatric) she suffered in the accident.

The Plaintiff

Counsel for the plaintiff, at the invitation of the Court, began addresses by dealing with the eight matters raised against the plaintiff which it was said went to the question of credibility. In view of my findings above in relation to those matters, it is not necessary to repeat the submissions advanced on behalf of the plaintiff on the question of credibility.
In the course of addresses, counsel for the plaintiff was asked whether she pressed a claim for an injury to the plaintiff's neck. In reply, I was referred to the reference to the cervical injury in the report by Dr Long but, quite fairly, counsel said that she could not take it any further, noting that the plaintiff had not given evidence that the neck was really an issue.
In the absence of any contemporaneous complaint in relation to the neck, I find that the plaintiff did not injure her neck in the subject motor vehicle accident.
Further, I find that the following injuries were caused by the accident: 1. left ankle fracture with dislocation; 2. left fibula fracture; 3. musculo-ligamentous injury to the lumbar spine; and 4. psychiatric injury.
The thrust of the plaintiff's submissions were that the combination of physical injury and psychiatric impairment created the need for domestic assistance and ongoing treatment.
Counsel for the plaintiff amended the plaintiff's Schedule of Damages at the conclusion of the evidence. The revised claim comprised the following: (a) Past out-of-pocket expenses (i) s83 payments $2,338.50 (ii) Medicare $8,364.50 (iii) physiotherapy $8,703.00 (iv) Interrelate $375.00 (v) medications Left blank (vi) travel expenses Left blank Sub-total of past out-of-pocket expenses Left blank (b) Future out-of-pocket expenses (i) removal of hardware $8,000.00 (ii) medication - $15.00 pw $14,499.00 (multiplier 966.6 - 48.34 years) (iii) equipment needs $26.17 pw $22,309.00 (iv) further psychiatric treatment for 2 years at $270.00 per session $6,480.00 (v) psychological counselling 30 sessions at $250.00 per session $7,500.00 (vi) GP visits per month at $85.00 per visit or $21.25 pw $20,540.25 Sub-total of future out of pocket expenses $104,623.25 (c) Past gratuitous care - $166,682.38 from 16.05.09 to date - 14.31 hrs pw at $26.00 ph (agreed late) for 416 weeks (d) Future commercial care - $ $231,984.00 6 hrs pw at $40 ph (multiplier 966.6) Total Left blank

During the course of addresses, the parties agreed on a figure for part of the past out-of-pocket expenses. That amount was $20,042.00. The plaintiff made a further claim of $15.06 per week for medication and $15.00 per week for travel since the accident. The defendant opposed both of those claims on the basis that there were no receipts, there was no need for the medication and the travel need is as it was before the accident.

Actuarial Factors

Date of birth - [redacted] 1976
Date of accident - 7 August 2002
Time since accident - 793 weeks
Age at date of accident - 25 years
Age at present - 40 years
Medium life expectancy - 48.34 years
Multiplier (5%) - 966.6

Past Out-of-Pocket Expenses

As noted above, these have been substantially agreed in the sum of $20,042.00.
The plaintiff presses an additional claim of some $30.06 per week representing medication and travel. For the 15 years since the accident, that would come to approximately $24,000.00.
In my view, the evidence adduced in the plaintiff's case did not discharge her onus to permit those additional claims to be calculated with precision. Plainly, however, some expenses have been incurred for medications which she has been prescribed. There was no challenge to the plaintiff that she has taken medication since the accident. Accordingly, I propose to allow an additional sum of $5,000.00 representing the cost of medication from the date of the accident to date.
As for the need for travel, the plaintiff does not hold a licence and did not before the accident. She relies upon others for transport. This need was not caused by the accident. The evidence does not permit a reliable calculation as to what additional travel has been required by reason of the accident. Given this uncertainty, I do not make any allowance for past travel expenses.
The total figure for past out-of-pocket expenses, therefore, is $25,042.00.

Future Out-of-Pocket Expenses

I refer to the claim as set out in the plaintiff's Amended Schedule of Damages referred to above.
I do not accept that the plaintiff will require surgery for the removal of hardware in her ankle. I rely upon Dr Nave. Accordingly, no allowance is made in that respect.
I do accept, however, the plaintiff will require medication in the future either for pain and/or her psychiatric conditions. The evidence as to the precise need and cost of same is too vague to permit precise calculations. Accordingly, I allow the sum of $5,000.00 in respect of future medication.
The next item claimed is equipment. No evidence was adduced from the plaintiff as the need for equipment. No allowance is made.
Psychiatric medication as recommended by Dr Chau was claimed at the rate of $23.08 per week. Given the evidence from the plaintiff that she ceased taking psychiatric medication because it upset her pain relief medication, I do not propose to make any allowance in respect of psychiatric medication other than that which is covered in the global figure referred to above.
The plaintiff next claims further psychiatric treatment for two years at a cost of $6,480.00. Given the virtually unanimous opinion of the psychiatric experts, the plaintiff suffers from a number of psychiatric conditions, I consider this claim to be reasonable and I accordingly allow the amount claimed, rounded to $6,500.00.
It seems to me that to permit the claim of psychological counselling in addition to psychiatric treatment would represent doubling up and ought not be entertained without a clear explanation from a psychiatrist as to the need for same. That has not been provided. Accordingly, I make no allowance for psychological counselling.
The plaintiff claims the cost of attending her GP at $85.00 per visit once per month. There was no evidence as to the cost of the plaintiff's attendance upon her GP. It may be covered by Medicare at no cost to the plaintiff. There was also no indication as to the need for a monthly visit on the GP and indeed the clinical notes fail to establish that that has been the pattern to date. Some allowance is, however, required as the plaintiff will need to see her GP to obtain prescriptions for medication and generally in relation to her condition related to the accident. Accordingly, I allow the sum of $5,000.00 on account of the cost of future attendances upon the plaintiff's general practitioner.
For future out-of-pocket expenses, I allow $16,500.00.

Past gratuitous care

Past gratuitous care re-calculated at the agreed hourly rate of $26.00 comes to just over $150,000.00 from 16 May 2009 to date. In my opinion, an allowance of 14.31 hours per week is excessive. In considering the need created by the accident in this regard, I have regard to the expert evidence but I also place significant weight on the evidence of the plaintiff and Matthew.
The allowance must reflect the need created by her physical limitations but also her significant psychiatric problems.
I am also mindful of the concessions which the plaintiff made in cross-examination as to her capacity to undertake some of the domestic activities.
Having regard to all of the evidence, I find that the plaintiff has reasonably required on average one hour per day for assistance. Clearly, Matthew spent more time with her than that but I do not accept that it was reasonable or in response to a need caused by the accident.
Allowing seven hours per week at $26.00 per hour from 16 May 2009 to date (440 weeks) comes to approximately $80,000.00.
The defendant says in respect of the past that the care provider (Matthew) has been in receipt of a carer's pension and that, therefore, the care he has provided has not been gratuitous.
I asked both counsel to address this issue in writing as they were not in position to do so orally.
From the defendant, I received an email attaching a decision of Taylor SC DCJ in Logar v Ambulance Service of New South Wales Sydney Region [2016] NSWDC 255. That email was marked MFI 8. It directs the Court to paragraph [105] of the judgment and submitted: In the present case the defendant contends that the decision in Logar supports the defendant's contention that since the carer who provided the Plaintiff's care was paid by the state to carry out that role no damages for care should be awarded. The decision in Logar is not, of course, biding [sic] on his Honour.
As I understand Logar, the plaintiff brought a claim under s15B of the Civil Liability Act for care which others were required to provide to her children which, but for the accident she would have provided herself.
The plaintiff advanced a claim for s15B damages based on "the amount of gratuitous care provide by Sydney In-Home Care, which was paid for by Centrelink" (paragraph [103]).
Paragraph [105] upon which the defendant relies states: The value of Mrs Logar's lost capacity must be substantially reduced in circumstances where full-time professional in-home care for the children has been provided at public expense. Section 15B does not exclude an award for this reason, but it seems to me to be relevant in deciding what, if any, award should be made.
Paragraph [106] stated: In my view, no damages under s 15B should be awarded for the period where Centrelink, through Sydney In-Home Care, provided care for the children.
It was on this basis that the defendant submitted no award ought to be made.
The plaintiff pressed a claim for damages for past gratuitous care. Written Submissions were provided by letter from counsel for the plaintiff dated 19 September 2017. That letter attached a decision of Hall J in Campton v Centennial Newstan Pty Ltd (No 3) and was marked MFI 9.
Also attached to MFI 9 were some documents from Centrelink relating to Matthew. Without objection, they became Exhibit D.
The plaintiff submits and the defendant has not sought to dispute the matter, that Exhibit D reveals: 1. that Matthew presently receives $62.35 per week by way of a carer's pension in respect of the plaintiff; and 2. that, since 2009, he has received an average of $58.00 per week.
It was submitted that Justice Hall "offset the weekly amount that the carer was receiving" by the carer's pension (MFI 9).
In my view that is, with respect, the most sensible approach. It affords the plaintiff appropriate compensatory damages without doubling up on same.
If one takes the average of the carer's pension received by Matthew since 2009 as $58.00 per week, then for 440 weeks that comes to approximately $25,500.00.
In my view an appropriate award for past domestic assistance is $54,500.00 representing the "offset" of the carer's pension on the amount previously determined as reasonable ($80,000.00).
Accordingly, I allow $54,500.00 for past gratuitous assistance.

Future commercial care

This is claimed at the rate of six hours per week at a cost of $40.00 per hour.
Given the finding above in relation to the amount of assistance required in the past (seven hours) I consider this claim to be reasonable. I also consider the hourly rate adopted as being representative of a reasonable commercial rate for assistance. It is plain from the evidence of Matthew that he will cease providing the assistance upon the completion of these proceedings so it is proper to calculate the matter on a commercial basis. It follows that if Matthew is not providing care then a carer's pension will not be received so that offset of that amount is required.
In my opinion, it is appropriate to apply a reduction of damages for future domestic assistance for vicissitudes including what Dr Petroff has described as being a pre-existing vulnerability in the plaintiff. It may be that she would have developed a condition, whether age-related or otherwise, which may have required some supervision or assistance in the future (see Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 (13 April 2015).
I allow six hours per week at $40.00 per hour for life but reduce by 25% for vicissitudes. That comes to approximately $175,000.00 which I consider to be an appropriate and reasonable allowance in the circumstances.

Summary of Assessment of Damages (a) Past out-of-pocket expenses $25,042.00 (b) Future out-of-pocket expenses $16,500.00 (c) Past gratuitous care $54,500.00 (d) Future commercial care $175,000.00 Total $271,042.00

ORDERS 1 Judgment for the plaintiff in the sum of $271,042.00; 2 the defendant to pay the plaintiff's costs of the proceedings; 3 the scope and basis upon which the costs are to be paid is reserved; 4 that on or before 30 October 2017, the plaintiff to file and serve written submissions not exceeding five pages in length as to what the appropriate form the costs order should take and the reasons for same; 5 that on or before 6 November 2017, the defendant to reply to those submissions and that the defendant's submissions not exceed five pages in length; 6 I grant liberty to apply on three days' notice; 7 I direct that the Exhibits be returned after 28 days.

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: 25 October 2017

Harrison v Barnett

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Cases Cited (9)