Jay v Baker; State of NSW - [2018] NSWDC 270 - NSWDC 2017 case summary — Zoe

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Jay v Baker; State of NSW

[2018] NSWDC 270

District Court of NSW|2017-06-15

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-06-15

Catchwords

[1999] NSWCA 250 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
[1990] HCA 20 Manley v Alexander [2005] HCA 79
L McFee (4-5 December 2017 onwards)

Source

Original judgment source is linked above.

Catchwords

[1999] NSWCA 250 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473[1990] HCA 20 Manley v Alexander [2005] HCA 79L McFee (4-5 December 2017 onwards)

Judgment (30 paragraphs)

[1]

Introduction

The medical issues in this case concerning Ms Jay are complex and relate to a period of over ten years. The parties have relied on a large number of detailed medical reports and a large quantity of medical notes and records. The doctors, both treating and medico-legal, have provided differing opinions on almost all aspects of Ms Jay's conditions and prognosis, including even in reports tendered by the defendants. The medical notes relied on are often brief and raise further questions as to what led to certain matters being recorded and the clinical context of the notes. The plaintiff's general practitioners both past and present were not called and thus were not cross-examined. Their notes which were in evidence and which were relied on (particularly for the period 2006-2013) thus should be approached with some care as should the brief notes of the psychologist Ms Anderson from Caro Consultancy who was also not called: see the comments of Basten JA in Mason v Demasi, above.

[2]

Ms Jay

Many doctors relied on histories provided to them by the plaintiff Ms Jay. In relation to Ms Jay, I note the following matters and make the following findings: 1. Despite the submissions on behalf of the defendants to the contrary, I find Ms Jay to be an honest witness who was attempting at all times to give her evidence truthfully. Having observed her giving evidence on the issue, I find that she did not deliberately mislead any of the defendants' medico-legal experts or her own doctors or the court; 2. However, it is clear to me on the evidence, as Drs Duncan, Burke and Roberts, among others, state in their reports, that Ms Jay has a serious psychiatric condition. She gave her oral evidence on two occasions. On both occasions, her evidence was punctuated by teariness, upset, distress and some emotional outbursts. Her condition appeared to me to have got worse by the time of the second occasion in April 2018 as her evidence was less directed, less responsive and somewhat vaguer. I do not consider it was deliberately so. A deterioration in the plaintiff's psychiatric condition was confirmed by Drs Burke and Duncan, the latter being her treating doctor. I accept that evidence; 3. Ms Jay also gave incomplete or inaccurate medical histories to some doctors, particularly in relation to her pre-accident mental history: the histories given to Dr Burke and Dr Roberts, for example. This omission is strongly relied upon by the defendants. In my view, in the light of all the evidence and her current psychiatric condition, some caution should be exercised in relation to the reliability of all aspects of Ms Jay's evidence, particularly her medical histories and her reports of her daily activities; 4. I reject Ms Jay's evidence that when she went to see Ms Anderson, the psychologist, in April-June 2013 that it was to assist Ms Jay in dealing with the distress of her fellow workers whom she was supervising. I am satisfied on the evidence that it was to assist Ms Jay herself with her own problems and concerns, particularly concerning stress arising from her work. These concerns included concerns in relation to potential restructuring at the TAFE with possible changes to her job and/or issues with job security; 5. The period mid-2011 to August 2013 is particularly problematical in the case. Ms Jay was diagnosed with renal cancer in July 2011. This understandably caused her great and ongoing concern. It was at this time that Pristiq was prescribed to her by her general practitioner, although other anti-depressants had been prescribed earlier and there had been varied symptoms from 2006 with some large gaps in symptomology. Menopause symptoms were also referred to by her general practitioners and these may well have added to her anxious presentation. The period September 2011 to August 2013 was a worrying time for Ms Jay in relation to possible further cancer even though reports from Dr Khadra, the relevant specialist, were clear and positive; 6. As stated, I exercise caution in relation to the Anson general practitioner notes and the Caro Consultancy notes. None of the medical practitioners and the psychologist who prepared these notes was cross-examined. The notes are brief. I accept Dr Burke's evidence that from the notes, there is no clear psychiatric diagnosis, although words such as "anxiety" and "depression" are used in the notes. I accept Dr Roberts' evidence that a lack of a formal diagnosis and brief notes are not uncommon with general practitioners. There is no referral to a psychiatrist by the plaintiff's general practitioners in the 2006-2013 period, only a referral to a psychologist. The cancer scare and menopause and perimenopause are referred to in the notes. Although great reliance was placed by Dr Roberts on entries suggesting an improved mood after the accident (eg September 2013, 3 June 2014 and July 2014), the plaintiff's condition appears to have been variable and what the plaintiff precisely said and in what context to the general practitioners on the occasions relied on is not clear. Thus these notes need to be considered carefully; 7. The Caro Consultancy notes suggest some improvement in Ms Jay's presentation at various times in April-July 2013. See the entry for 18 July 2013. It is clear that although some time was taken off work, Ms Jay had returned to work by the time of the accident and had been working at home for at least part of the time she was off work; 8. After taking these matters and the medical evidence into account, and the submissions made by the parties, I do not consider that Ms Jay had a major depressive disorder, as Dr Roberts asserts, as at August 2013 prior to the motor vehicle accident. I prefer Dr Burke's opinion on this issue. The factors I rely on for that finding are as follows: 1. The lack of a formal diagnosis of major depression by any properly qualified medical practitioner prior to the accident. In reaching that view I take into account the general practitioner notes and the prescriptions for Pristiq; 2. The fact no general practitioner referred Ms Jay to a psychiatrist prior to the accident; 3. Ms Jay continuing to work at a senior level for the TAFE albeit with some time off and some time working from home; 4. Her condition being assisted by the Pristiq which she was prescribed; 5. Her performing in a highly stressful and senior job; 6. The presence of other potential stressors such as anxiety in relation to further cancer, menopause and perimenopause symptoms; 7. Her condition improving on occasions in the period 2006 to 2013 with large periods where there were no complaints recorded in notes by her general practitioners; 8. Her concerns in relation to the work restructuring; 9. Her continuing to perform her domestic chores, taking exercise and engaging in social activities; 10. The evidence of Mr Maginnis as to the plaintiff's work performance pre-accident; 11. The lack of any knowledge of her husband and son, whose evidence I accept. Also, I rely on there being no relevant discussions between the plaintiff and them. If the plaintiff was really considering giving up her job as was suggested by the defendant, I think it very likely she would have discussed the matter with her husband at the least; 12. The fact that such complaints to her general practitioner had been made over a lengthy period at various times from 2006-2013 yet Ms Jay continued to perform in her various positions; 13. The Caro Consultancy notes showing the plaintiff's condition to have varied considerably in 2013; 1. Significant criticism was levelled by the defendants at Ms Jay for inconsistencies in her reports of her daily activities between what she told Ms Toner and what she told Drs Burke and Roberts. I find that there was not full disclosure by Ms Jay in 2017 of her activities of daily living to Drs Burke and Roberts. Again, on the whole of the evidence I find this was not deliberate by Ms Jay. I believe Ms Jay answered questions asked of her by the doctors and focussed on her problems: see also Dr Burke's comments at Exhibit 1D6 page 549. However, the various activities (one unit in a Bachelor of Arts in Social Work, the spinners group and the Orange Quota Club) all show Ms Jay not being as isolated and seriously affected by her pain and psychological complaints at these times; 2. There is an issue about Ms Jay's current pain levels. Dr Burke recorded her stating to him in October 2017 that the intensity of her pain was "breathtaking" and getting more intense. This should be compared to what she told Ms Toner in 2017 and her evidence: T363.14. The plaintiff acknowledged that she told Ms Toner in July 2017 that most days she had her pain under control. There is also evidence that the plaintiff is not currently taking her prescribed pain relief medication. The evidence is consistent in my view with a chronic pain problem with variations in pain and the plaintiff able to take steps to limit her pain and make herself comfortable even though many of the plaintiff's physical injuries may have settled (see Dr Shatwell Exhibit 1D6 page 33). Obviously this ability has to be seen in the context that the plaintiff is currently not working and thus can vary her activities and functions to suit herself at the relevant time.

[3]

Pre-accident findings

Based on my review of all of the medical evidence, and taking into account the submissions made, I make the following factual findings in relation to medical issues concerning Ms Jay in addition to those in the last paragraph.
I find that the plaintiff Ms Jay had the following relevant medical issues prior to the accident: 1. The plaintiff had a fractured left ankle many years prior to the accident which healed without residual symptoms or loss of function; 2. The plaintiff has had hypothyroidism for a number of years which is controlled with medication; 3. The plaintiff had symptoms of depression and anxiety about 18 years ago when there were threats of violence from a co-worker to staff at the TAFE. Pristiq was prescribed for the plaintiff and some time was taken off work by her. She consulted a psychologist. This matter did not appear to cause problems for the plaintiff in the years immediately after that; 4. The plaintiff had symptoms of anxiety and depression in periods from 2006-9 with anti-depressant medication being prescribed; 5. The plaintiff had a nephrectomy for left kidney cancer performed in August 2011 without any recurrence, post-operative symptoms or loss of kidney function. Some considerable time was taken off work by Ms Jay then. The evidence does not seem to suggest the plaintiff is at risk of further kidney cancer or a reduction in her life expectancy. The cancer appeared to have caused the plaintiff some considerable anxiety and depression symptoms, as would be understandable for any person, and appropriate medication being Pristiq was prescribed in November 2011; 6. The plaintiff worked in a stressful job prior to the motor vehicle accident. The evidence suggests that due to a number of stressful factors (including the plaintiff's kidney cancer, difficulties with stress at work, fears of work restructuring and volume of work among others), the plaintiff experienced psychological symptoms prior to the accident which led to her continuing to take the antidepressant Pristiq and the dosage being increased. I refer to my analysis above. She was seeing a psychologist Ms Anderson due to pressures at work and her difficulties coping in the months prior to the accident. The plaintiff also had shingles at times and complained of symptoms of menopause and perimenopause. Although the plaintiff complained about the stress of the work, and even apparently mentioned giving up her job to her general practitioner on one occasion (Exhibit 1D6 page 371), it seems that the plaintiff was dealing with the stresses of the job prior to the accident with the assistance of Ms Anderson. She made no mention of giving up her job to her husband, her son Warwick or her work colleague Mr Maginnis. She was seeking medical assistance. Although the plaintiff was seeing Ms Anderson, a psychologist, prior to the accident, the evidence discloses that she first saw a psychiatrist, Dr Patfield well after the accident. There is no evidence of extensive periods off work, other than relating to her kidney issues, in 2011-13. However, some time off work was taken for stress. She was still performing her demanding job at the time of the accident. She did however have a history of anxiety and depressive symptoms. See Dr Roberts' second report. As set out above, considering all the evidence I find that the plaintiff did not have a major depressive disorder prior to the accident. She may have had an adjustment disorder with depressed mood as suggested by Dr Burke, but the medical evidence does not establish this. Dr Burke also said this was only his tentative conclusion. The plaintiff has four sons, all of whom are independent and who have left home. The plaintiff has a working husband. He appears at all relevant times to have been highly supportive of the plaintiff. I find, taking into account all the evidence, particularly the plaintiff's pre-accident symptoms, that but for the accident, the plaintiff would probably not have developed any serious psychiatric condition due to the ongoing stresses of her employment which would have prevented her working in her job or led to her resigning from her position in the short or medium term. The plaintiff had a long history of successfully coping in practical terms with her work including obtaining numerous promotions. She worked in her various jobs despite the symptoms which emerged in 2006, until the date of the accident. The plaintiff sought help and was prescribed Pristiq from late 2011 following her diagnosis of renal cancer. However, despite some time off work she returned to her job. Mr Maginnis paints a convincing picture of the plaintiff's work abilities and her focus on her job. I reject the conclusions of Dr Roberts in his second report and the defendant's submissions that the plaintiff's current condition is a continuation of her pre-accident psychiatric history. Ms Jay was working in her senior and difficult job, she was not taking very lengthy periods off work, she was seeking help from her GP and a psychologist, she did not see a psychiatrist until 2015 and a senior colleague noted no relevant problems in her. These matters are in my view significant. I prefer the opinion of Dr Burke on this issue for the above reasons. However, the plaintiff, from her symptoms prior to the accident, was clearly vulnerable psychiatrically. Her pre-accident symptoms need to be taken into account and may be relevant to the date when the plaintiff may have retired, but for the accident.
Accordingly, in my view on the whole of the evidence and I find, there was no relevant pre-accident medical history which makes it likely that the plaintiff would have developed a similar serious psychiatric condition to that of which she currently complains. Any psychological problems pre-accident were comparatively much more limited and apparently did not impact significantly on the plaintiff's performance of her work or her home and social life. I accept and prefer the views of Dr Blom and Dr Burke on this matter for these reasons, even though both may not have had a complete medical history at the time their reports were prepared.
The plaintiff also seems to have had a successful social and exercise history prior to the motor vehicle accident and was very fit and undertook regular running.

[4]

Physical injuries in or arising out of the accident

The plaintiff suffered the following physical injuries as a result of the accident: 1. A fracture of her sacrum at the S3/4 level; 2. Displacement of the distal segment of the sacrum and displacement of the coccyx in relation to the body of the sacrum; 3. Significant bruising; 4. Ligamentous disruption haematoma; 5. Resulting incontinence and numbness. I accept the opinion of Dr Korbel that the plaintiff suffered chronic urinary retention/bladder denervation as a result of the accident. However, through a trial of the drug Betmiga, the plaintiff's condition improved significantly in 2016 and this is no longer a significant problem to her. Nevertheless, this created inconvenience, embarrassment, worry and difficulties for the plaintiff for about a three year period with some improvement in the latter period; 1. Resulting numbness and pain in the left buttock and left lower limb; 2. An issue arises whether the plaintiff's hip problem which was diagnosed in 2014 was caused by the accident. The Defendants submit that it was not. A labral tear of the left hip apparently occurred which was considered to require surgery. There is a difference of medical opinion in evidence as to whether this was related to the accident or was unconnected to the accident. Dr Shatwell expressed the opinion in his reports that the hip condition was unconnected to the accident and is common in asymptomatic adults. He gave detailed reasoning in his second report for that view. In that report he expressed the opinion that Ms Jay's residual problems "were exacerbated by inappropriate treatment of a lesion in the left hip, which was …not the cause of her symptoms" and which was not caused by the motor accident: Exhibit 1D6 page 35; 3. Other doctors are of the opinion that the hip tear was likely caused by the accident or arose from symptoms which occurred as a result of the accident or was an exacerbation as a result of the accident. On this issue, I prefer the reports and reasoning of Drs Bodel (Exhibit D pages 5-6, 16), Lyons (Exhibit D page 31), Ling (Exhibit D pages 38, 43-44), Oates (Exhibit D pages 73-74) and Harvey-Sutton (Exhibit 1D4 page 318) to that of Dr Shatwell. The plaintiff had no apparent problem with her hips which was relevant prior to the accident and in my view and I find, the weight of medical opinion is clear that the hip problem was likely caused by the accident; 4. Even though labral abnormalities may be common and seen in approximately 60% of the adult population with no symptoms on MRI scans as Dr Shatwell asserts (Exhibit 1D6 page 35), here the plaintiff seemed to have problems in the hip area when Dr Lyons proposed the surgery in 2014 (see Exhibit D page 31). Further, Ms Jay noted in her evidence that she was struck more on the left side "because [she] had extensive bruising down the back of [her] left leg": T14.13-.21. The only significant event which occurred on the evidence which may have caused the tear was the accident. The problems in the hip emerged within 12 months after the accident. Dr Thomas noted improved but continuing pain in the plaintiff in April and May 2014 before the severe hip pain became apparent. I do not accept the opinion of Dr Shatwell on this issue. If I am wrong on this conclusion, then I find Ms Jay's physical problems other than her hip still caused her significant difficulties in 2014-15 and still occasionally do. I particularly refer to the reports of Dr Thomas for the February-May 2014 period prior to the hip problem emerging.
I find that the fracture caused by the accident has healed. I find that there is no suggestion of the likelihood of further surgery, although a hip replacement is possible.
The clear weight of the evidence establishes, in my view, that the plaintiff has suffered extensive and sometimes continuing pain as a result of her injuries of varying degrees of severity and intensity which has continued despite the plaintiff having a reasonable range of movements generally and being able to make herself comfortable when needed to help reduce and manage her pain.
The plaintiff is in the care of a pain specialist (Dr Thong) and the main body of opinion is that she should continue with receiving treatment from that specialist together with the management of pain relief. The experiencing of fairly significant pain by the plaintiff is set out in the vast majority of the medical reports and in my view is genuine although it seems to have moderated somewhat in recent times allowing her to engage in more activities and cease taking prescription pain medication.
Even a number of the defendant's doctors do not dispute this. Dr Shatwell indicated in his first report that further medical treatment in the form of pain management and physiotherapy may be of benefit. He expressed the opinion that the plaintiff's prognosis was uncertain. He refers to the plaintiff's "chronic pain". He seems to have altered this opinion somewhat in his second report and sees the plaintiff as having a "chronic pain problem" (even though her fracture has settled) but was fit for work from early 2014 (Exhibit 1D6 page 33). Dr Harvey-Sutton notes that the plaintiff would be unfit to work in her opinion for some two to three years and states that the plaintiff's main problem now is "chronic pain" and emotional and behavioural conditions. Dr Harvey-Sutton expressed the view in her report that the plaintiff would "continue to have significant pain for the next some two years tapering to a manageable level at about three years": Exhibit 1D4 page 317.
The plaintiff's doctors, both treating and medico legal, support the conclusion that the plaintiff is experiencing continued chronic pain and that pain management, including with physiotherapy assistance, is needed. I accept that evidence, although I note that the pain has improved more recently as reflected in the pharmaceutical records relating to the issue of prescribed pain relief. The defendant relies heavily on these records as showing periods where no prescribed pain relief was issued. That may be accepted. However, they also show prescribed pain relief being issued at various times up to early 2017.

[5]

Psychiatric injuries arising from the accident

It seems to me, as established by the weight of the expert evidence, that the plaintiff's main problems are currently psychiatric and psychological, emanating from the chronic pain from which the plaintiff has been suffering and her inability as a result to work, with a significant loss of self-esteem and confidence in the context of a stressful and demanding job. In saying this, I do not wish to be thought to be disregarding the effects of the plaintiff's ongoing chronic pain problem.
The plaintiff's employment record shows a person who had managed to achieve a very successful career despite having four children and domestic burdens. Prior to the accident, she achieved high rank in the TAFE sector and appeared to be generally managing in that job despite the fact that it was stressful and she had some anxiety and depression symptoms. The job had clearly caused her concerns, particularly when she was the subject of threats by a fellow worker many years ago. Her continued working at a high level despite a cancer diagnosis and a nephrectomy in 2011 is in my view a good guide to her relative stoicism and ability. She was seeking professional advice in relation to her psychological problems in 2013 which seemed to primarily arise from work stresses.
In my view, the evidence shows that TAFE took all reasonable steps as a corporate entity to assist the plaintiff in her return to work after the accident. The plaintiff appeared to be very fond of her job and wanted to retain it. It was a position which required regular driving and was stressful. It required a high level of commitment and involved numerous meetings with other workers and supervision of other workers. The plaintiff's main complaint after the accident appeared to be with her superior's pressure, not the response of TAFE itself, which purchased special furniture for her.
In my view, the evidence establishes and I find that the plaintiff, primarily due to her pain and restrictions arising from the accident, was unable to cope with her job after the accident in 2014-15 despite the fact that appropriate office equipment was provided by the TAFE and the plaintiff was, for a lengthy period, given an office which gave her room to walk around, lie down (when needed) and to move the height of her desk and keyboard. The TAFE in certain periods also allowed the plaintiff to work from home to assist her.
In the end, I find that the plaintiff believed that the pain and restrictions which she had arising from the accident physically meant that she was failing in performing her job. She could not drive the long distances she had previously travelled. She could not sit for lengthy periods in meetings. She could not perform all her necessary tasks. She believed she was under pressure to return to her pre-accident duties. This failure to cope in her work physically, dramatically affected her self-esteem. Eventually, this caused a disintegration in her psychological and psychiatric well-being in early 2015 which led to her experiencing suicidal ideation to the extent of having a planned suicide which she did not proceed with. There is no evidence problems to this extent had occurred before the accident. I accept Dr Burke's views on this issue which seem consistent with the facts.
My review of the medical evidence establishes in my opinion that the plaintiff at least has severe and ongoing depression in the form of a major depressive disorder arising from the accident. This is confirmed by the reports of Drs Burke and Duncan. I prefer their views to those of Dr Roberts as being more consistent with the evidence as to the course of Ms Jay's problems and her psychiatric disintegration in 2014-15. The crucial factor which occurred was the accident and the physical injuries the plaintiff suffered. Prior to the accident, the plaintiff was coping with some difficulties with her job. After the accident, and the plaintiff's physical injuries, she was not coping. The major depressive disorder she does have is a serious one and affects the plaintiff's mental state, pessimism, concentration, social withdrawal, suicidality and capacity for work.
I must also consider whether the plaintiff has PTSD, particularly if I am in error in relation to the causal relevance and origin of the depressive disorder. Dr Burke described PTSD as his "primary diagnosis" in relation to Ms Jay: T476.1. Dr Roberts rejected its presence whilst accepting some symptoms of PTSD existed. Drs Duncan and Blom have also found PTSD.
The plaintiff submits on this point as follows: 1. Dr Burke should be accepted in relation to his diagnosis of PTSD with delayed expression; 2. The matters relied upon by Dr Burke are consistent with the plaintiff's evidence and the evidence of Mr Maginnis; 3. Assessor Dr Blom's report confirms Dr Burke's view as to PTSD. He found PTSD was caused by the accident. His view is conclusive as to the causation of the medical injury of PTSD: Pham v Shui [2006] NSWCA 373 at [96]; Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 at [41]; AAI Ltd v State Insurance Regulatory Authority of NSW [2016] NSWCA 368 at [141]-[158]; 4. Accordingly, the diagnosis of PTSD caused by the accident by Dr Blom is conclusive evidence of the fact under s 61(2) of MACA; 5. In any case, Dr Blom's view is supported by the views of Dr Duncan and Ms Natalie Toner as well as the views of Dr Burke.
The defendant submits as follows as to PTSD: 1. The view of Dr Roberts (no PTSD) should be preferred to that of Dr Burke (PTSD with delayed expression); 2. A diagnosis of PTSD is inconsistent with the plaintiff's longitudinal medical history. There is no record of the plaintiff mentioning PTSD symptoms to her general practitioner in 2013-4, to Ms Rae of Greenlight or to Dr Patfield. Whilst Ms Toner has diagnosed PTSD she has not considered the earlier medical history of the plaintiff in 2013-2014; 3. Whilst the plaintiff has some symptoms of PTSD, not all the required symptoms are present (Dr Roberts); 4. It is erroneous to suggest the certificate of Assessor Dr Blom is conclusive evidence as to the PTSD diagnosis for all purposes; see Allianz Australia Insurance Ltd v Serria Girgis [2011] NSWSC 1424 at [22], [25].
Having reviewed the various medical opinions in the light of the other evidence, I am not satisfied on the balance of probabilities that the plaintiff has PTSD arising from the accident as she submits. In arriving at that conclusion I rely on the following matters: 1. There is clearly no suggestion that the plaintiff Ms Jay had PTSD prior to the accident; 2. The first psychiatrist the plaintiff saw after the accident was Dr Patfield. In his report dated 26 February 2015 (Exhibit D page 53), no diagnosis of PTSD is made. Dr Patfield also does not refer to the usual symptoms of PTSD although poor sleep is mentioned. There is no reference to nightmares, episodes of recurrent and intrusive thoughts as to the accident or panic attacks. His report was prepared 16 months after the accident; 3. The notes of the plaintiff's doctor who saw her from soon after the accident, Dr Thomas, also do not refer to PTSD or PTSD symptoms in the period from the date of the accident to early 2015. The only references to relevant symptoms are from 4 February 2015: see Exhibit D; 4. The psychologist Ms Rae who saw the plaintiff in September 2015 makes no reference in her report to PTSD or relevant PTSD symptoms: see Exhibit 1D8; 5. Drs Duncan, Blom and initially Dr Burke were not given full or accurate histories in relation to the plaintiff's psychological background and did not have access to the plaintiff's general practitioner notes for the period from the date of the accident to February 2015: see Exhibit D page 55, 60 and 64 as to Dr Blom. Dr Blom thus found PTSD on an incomplete history. After he was given the plaintiff's full psychological background, Dr Burke changed his diagnosis from PTSD to PTSD with delayed expression: Exhibit 1D6 page 548. Drs Duncan and Blom had not diagnosed PTSD with delayed expression; 6. Whilst Ms Natalie Toner refers to PTSD in her report dated 27 July 2017 (Exhibit E page 42), there is no reference to PTSD or PTSD symptoms in the period when the plaintiff initially consulted her. References to some symptoms are much later: see Exhibit 1D6 (volume 1): Ms Toner's notes at 199, 203 and 216-7; 7. While Dr Roberts accepts that some symptoms referred to by the plaintiff were found in the presence of PTSD, he rejects it in the end (Exhibit 1D 6 page 20). After carefully reviewing Dr Roberts' reports, particularly the February 2018 report, and his oral evidence, I am persuaded by his detailed rejection of PTSD in the light of the plaintiff's longitudinal medical history. See T484-5; 8. While I put considerable weight on the opinion of Dr Duncan as to PTSD, as he has been the plaintiff's treating psychiatrist for the last few years (see Exhibit E pages 1, 5, 8-9 and 14), he was not provided with the plaintiff's full background psychological history in making his diagnosis; 9. The absence of any reference to PTSD symptoms in the medical notes for an extensive period after the accident and the plaintiff's return to work in 2014 (albeit on a reduced and restrictive basis) does not assist a PTSD diagnosis arising from the accident. Early psychiatric and psychological reviews in 2015 do not suggest PTSD as opposed to depression as a result of a significant accident which left the plaintiff with significant pain and an inability to cope: see report of Dr Patfield Exhibit D page 54; report of Ms Rae Exhibit 1D8 pages 1 and 7; 10. For the above reasons, I prefer Dr Roberts' opinion that the symptoms for a diagnosis of PTSD arising from the accident have not been established.
In relation to the plaintiff's submissions concerning various Court of Appeal authorities, I reject the submission. These cases stand for the proposition that an Assessor's determination as to the degree of permanent impairment caused by the accident is conclusive. This opens the gateway for an award of non-economic loss. However, in my view they do not stand for the proposition that an Assessor's determination of certain injuries as caused by the accident is conclusive. Otherwise, the obtaining of differing medical opinions in a trial as to the cause of an injury would be a superfluous step.
The careful analysis by McColl JA (with whom Macfarlan JA agreed) in AAI Ltd v State Insurance Regulatory Authority of NSW [2016] NSWCA 368 at [120]-[158] is helpful on this point. Once the matter goes to court the Assessor's determination of permanent impairment is conclusive, the Assessor's medical report is likely to be also relevant and admissible on medical issues but the causation of the range of injuries asserted by the plaintiff remains to be determined by the court on the evidence, including any medico-legal evidence. I do not regard Pham v Shui [2006] NSWCA 373 at [96] and Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 at [41] as establishing the contrary. I accept the defendant's analysis of the authorities on this point and the comments in Allianz Australia Insurance Ltd v Serria Girgis [2011] NSWSC 1424 at [22], [25].
The plaintiff's ongoing depressive condition is, I find, complex and it is clear that she needs continued psychiatric treatment, psychological treatment and appropriate medication for the future with her diagnosis being very uncertain. Even the defendant's psychiatric expert, Dr Roberts, noted that it was not expected that the plaintiff would improve psychiatrically in the foreseeable future. The plaintiff's presentation in the witness box was consistent with the views of the psychiatrists. The plaintiff had a wide range of depressive symptomatology in the witness box as described by the medical experts, including tearful periods, difficulty concentrating, irritability and on occasions, shouting.
As stated above, the plaintiff gave further evidence and was further cross-examined in April 2018 following her initial evidence in June 2017. The plaintiff appeared to me to have deteriorated in her presentation in that relatively short period of time. In particular, I formed the opinion that the plaintiff's recollection had deteriorated. It was put to the plaintiff that she did not disclose significant relevant material to doctors and she said that she did not do so deliberately. Having seen the plaintiff and having considered the various matters raised by the defendants, I accept the plaintiff's submissions in this regard. In my view, and I find, the plaintiff did not deliberately omit to tell doctors relevant information for the purposes of advantaging her case. The plaintiff's presentation in court showed a degree of lack of recollection of detail and difficulty in focusing which would explain a failure to mention information, particularly if she was not asked specifically in relation to it. Even after the second lot of cross-examination of the plaintiff, I remain firmly of the view that the plaintiff is essentially an honest witness who was doing her best to give accurate evidence but whose evidence, particularly as given in April 2018, must be viewed with some caution because of her psychiatric problems.
I am comfortably satisfied and I find that the plaintiff's psychiatric condition from which she currently suffers (major depressive disorder) arises from the accident, was contributed to by the plaintiff's pain condition and physical injuries and requires continued treatment with uncertain results. I also agree with the conclusion of Dr Blom, based on the plaintiff's evidence and her history, that the plaintiff's treatment for renal cancer does not appear to have impacted on her current symptomatology. Based on the medical evidence, I accept Dr Burke that it is likely Ms Jay will have future difficulty in coping with work because of her psychiatric condition. I accept the following conclusion of Dr Burke: "I consider her prognosis guarded in view of the seriousness of her combined psychiatric disorders, allied with the effects on them of the ongoing problems associated with her physical symptoms."
The plaintiff's presentation and illnesses are, in my view, inconsistent with the plaintiff likely being able to undertake future employment at all in the foreseeable future, particularly if extensive concentration is involved or the position is stressful or a position involves responsibility or working in a team. I find that it is highly unlikely for this reason that the plaintiff has any real current capacity for employment.

[6]

Evidence of the State of New South Wales

The evidence shows that the plaintiff Ms Jay was at all relevant times an employee of TAFE New South Wales previously known as the TAFE Commission. The State of New South Wales, as the appropriate plaintiff, has sued under s 151Z of the WCA for an indemnity from the defendants for payments of compensation and other expenses made to Ms Jay or on her behalf, as an employee of TAFE New South Wales: see s 151Z(1)(d) of the WCA.
In s 4 of the WCA, "injury" is defined in the Act as meaning inter alia "personal injury arising out of or in the course of employment". Sections 10 and 11 of the WCA relevantly provide as follows: "10 Journey claims (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. … (2) Subsection (1) does not apply if: (a) the injury was received during or after any interruption of, or deviation from, any such journey, and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. (3) The journeys to which this section applies are as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment, (b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend, (c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation, (d) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3), … (5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act. (6) In this section: educational institution means: (a) a trade, technical or other training school, or (b) a university or other college or school providing secondary or tertiary education. night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker's employment. place of abode includes: (a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and (b) the place to which the worker is journeying with the intention of there spending the night following a journey." "11 Recess claims If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or training contract: (a) is temporarily absent from that place on that day during any ordinary recess or authorised absence, (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly."

[7]

Evidence of the plaintiff Ms Jay

In the course of the plaintiff's oral evidence, counsel for the State of New South Wales asked questions of the plaintiff. The effect of Ms Jay's evidence relevant to the State of New South Wales' claim is as follows: 1. Ms Jay confirmed a document as representing the payments that she had received for workers compensation over the period 23 August 2013 (the day after the accident) to 24 March 2017; 2. Ms Jay confirmed a document setting out claims that the plaintiff had made for wages that had yet to be paid to her for the period 31 March 2017 to 9 June 2017; 3. The plaintiff stated that when she parked her car in Woodward Street in Orange shortly prior to the accident that she was going to see Ms Rebecca Anderson, psychologist. The plaintiff's evidence was that she was going to see Ms Anderson, who she had seen several times previously to assist her with her work and in particular in dealing with staff members in an area where she was Acting Director and who were in the area relating to the student who had died in a horse riding accident in 2009. I have rejected this evidence, as set out above. I have found that Ms Jay was seeing Ms Anderson in relation to Ms Jay's personal problems concerning her work. The notes of Ms Anderson disclosed that the plaintiff appeared to be there for personal reasons and not for reasons relating to assisting her distressed colleagues but her attendance did seem to relate to the plaintiff's stressors at work; 1. The plaintiff gave evidence that she could go to medical appointments without seeking the permission of anyone at the TAFE, her employer. She also said that she was entitled to a lunch break and could take this at any time. The plaintiff's evidence was that she had her lunch with her at the time but planned to eat it later, probably during her subsequent work meeting. 2. I accept the plaintiff's evidence on this issue. I find from all the evidence that the plaintiff was seeing Ms Anderson having left her place of employment for personal medical reasons concerning her work before intending to proceed to her second appointment which was immediately after with the Institute Director, Ms Baxter, and was clearly for work purposes.
The first document which recorded payments made by the TAFE in relation to workers compensation to Ms Jay became Exhibit 2D3 in the proceedings. This was updated later up to 23 April 2018 by Exhibit 2D5 to a total figure of $468,451.87.

[8]

Section 151Z of the WCA

Section 151Z(1) of the WCA is as follows: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission."
A substantial issue in the proceedings is the liability of the defendants to the State of New South Wales under s 151Z(1)(d) of the WCA. Both the State of New South Wales and the defendants provided substantial written submissions in relation to the issue and also addressed orally.
The State of New South Wales submitted, in general summary, as follows on this issue: 1. The State seeks, pursuant to s 151Z of the WCA, the workers compensation payments made to, for and on behalf of Ms Jay for injuries she sustained in the motor vehicle accident which occurred on 22 August 2013; 2. It is submitted, as set out above, that liability should be found in the defendants and that there should be no finding or only a minimal finding of contributory negligence or only a minimal reduction for contributory negligence; 3. By its list of payments, which became Exhibit 2D5, the State has established the making of payments to, for, and on behalf of, Ms Jay under the WCA; 4. As a result of the accident, Ms Jay sustained personal injuries as set out in the submissions of counsel on behalf of Ms Jay dated 11 May 2018; 5. No case is established that the personal injuries sustained by Ms Jay in the accident did not arise out of or in the course of her employment. Ms Jay, in parking her car on 22 August 2013, was proceeding to an appointment with Ms Anderson, a psychologist, arising out of issues at work. On the whole of the evidence, particularly that the referral came under the EAP scheme and related to issues which Ms Jay had at work, the court would be satisfied that the personal injuries arose out of or in the course of Ms Jay's employment; 6. No question of the reasonableness of the workers compensation payments made to Ms Jay arises as a matter of fact or law. There is no evidence that the payments were not reasonable but in any case such an enquiry is not made if the payments are made in relation to a workers compensation claim; 7. All that is required is to determine the quantum of common law damages which are recoverable from the defendants and secondly to determine the amount of compensation which is to be paid. The amount of the indemnity provided for in s 151Z(1)(d) of the Act is limited by the determination of the quantum of common law damages; 8. The State submits that the plaintiff in a recovery action need not establish that the injuries suffered by the worker were injuries for which compensation is payable under the Act. The statutory right of indemnity under s 151Z(1)(d) of the Act operates in its own discrete context. There is no provision in s 151Z which requires an employer to prove, as a pre-condition to recovery, that the worker's "injury" is an "injury for which compensation is payable under this Act". This alleged requirement appears nowhere in the section (paragraphs 26-29); 9. In any case, the evidence clearly establishes that the injury that Ms Jay sustained in this accident was an injury for which compensation is payable under the Act under ss 9, 10 and 11 of the Act. The coverage for workers compensation is very broad as a remedial statute. The requirement of being in the course of employment must take account of the fluidity of employment circumstances; 10. All that is required to satisfy a causal relationship between employment and injury is that, but for the employment, the worker would not have been at the scene of the accident. The activities engaged in by Ms Jay were activities in the course of or arose from her employment. The evidence established that Ms Jay was able to attend to things like doctors' appointments during her working day without the need to obtain prior approval because of her position (paragraphs 34-36). After the appointment to which the plaintiff was proceeding, she was proposing to go immediately to another appointment with Ms Kate Baxter, the Institute director of TAFE; 11. The notes of Ms Anderson, psychologist, which are in evidence as part of Exhibit 1D6 show a consistent theme of work-related consultation. Even if the consultation with Ms Anderson was for a private purpose, s 11 of the Act applies as the worker was on an "authorised absence" in travelling to that appointment when the accident occurred. Ms Jay did not need to seek approval for absences from work and she was entitled to take absences for private purposes such as attending doctors. Ms Jay had an executive role at TAFE at the time; 12. In any case, the referral from EAP supports the attendance of the worker at the designated facility during Ms Jay's working day (paragraph 44). Further, the problems in issue had a link to Ms Jay's employment. The evidence was that Ms Jay was referred to Caro Consultancy under EAP and the consultation notes would support such a finding; 13. The payments made to Ms Jay were reasonable. Further, there is no requirement under s 151Z that the plaintiff must prove that each payment of workers compensation was reasonably paid. All that is required is to determine the amount of the compensation which has been made and nothing further. Even if reasonableness is required, it could not apply in respect of the payment of weekly benefits (paragraph 56); 14. The State is entitled to interest if it is successful in its claim under s 151Z of the Act. The plaintiff claims interest at the rates provided for in s 100 of the Civil Procedure Act 2005 (NSW) and will provide a schedule of the relevant calculations; 15. The State adopts the claim made by Ms Jay in her schedule of damages for the purposes of the proceedings (paragraph 76).
The defendants made the following submissions, in summary: 1. Section 151Z(1)(d) of the WCA is a distinct cause of action against a tortfeasor to recover compensation paid when each compensation payment is made by an employer to an employee; 2. The indemnity under the section only applies where the actual injury is created in circumstances which give rise to both an employer liability for compensation and a third party liability for damages; 3. In the event of a finding of liability, the plaintiff has not established that Ms Jay's injury on 22 August 2013 was one for which compensation is payable under the WCA or, in the alternative, the indemnity is confined to payments made for the period from the date of the motor vehicle accident to her return to full duties in February 2014 and not thereafter. In particular, the left hip abnormality was not causally related to the motor vehicle accident and there was no liability for payments made after March 2015 which were due to psychiatric injuries unconnected with the accident. Further, the indemnity is limited to the amount of damages awarded; 4. In the event that compensation was paid to Ms Jay when the employer had no liability under the WCA to do so, there can be no indemnity (paragraph 7); 5. It is wrong to suggest that the State is not required to establish why the payments were made to Ms Jay. The evidence does not establish an ordinary recess claim nor an authorised absence from work which has been permitted by the employer within s 11 of the WCA; 6. Ms Jay's assertion that the motor vehicle accident occurred when she was going to an appointment with a psychologist to address issues in relation to staff as a consequence of a student's death should be rejected in the light of all of the evidence. This is consistent with the court's finding above. The contemporaneous documents contain no reference to a consultation with Ms Anderson in the context of the management of colleagues' distress in relation to the student's death; 7. In the event payments were payable to Ms Jay under the WCA, the submission is made that the sacral injury healed by the time the plaintiff returned to work and commenced fitness activities; 8. In relation to the cessation of work from February 2015 to date, the chronic pain allegedly held by Ms Jay did not affect the trajectory of her pre-existing major depressive disorder. Even if there had been no accident, the plaintiff would have been unable to work because of her pre-existing condition; 9. Interest payable as a result of a recovery action brought pursuant to the statutory indemnity is ordered pursuant to the statutory power of the court and is not part of the indemnity.

[9]

Consideration

The statutory indemnity set out in s 151Z(1)(d) of the WCA only arises upon the payment of compensation to the employee. Until a payment occurs, the employer does not have a cause of action against the tortfeasor. The cause of action of the employer first accrues when the first payment of compensation is made and each payment is a separate transaction which attracts the statutory right of indemnity under the section: South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161 at [41]-[48]. See also Ausgrid v Settree Pty Ltd [2015] NSWCA 407 at [29].
By the list of payments which is Exhibit 2D5 and the evidence of Ms Jay, the State has established the making of payments to, for, and on behalf of Ms Jay under the WCA. The evidence clearly established that the plaintiff Ms Jay had made a workers compensation claim to her employer in relation to the accident.
It appears that the State need only establish that compensation has been paid by it to an injured worker under the WCA. In a statutory indemnity recovery action, the State does not need to establish that the injury suffered by the worker was an injury "for which compensation is payable" under the WCA. There is nothing in s 151Z of the WCA which expressly requires an employer to prove, as a pre-condition to recovery against the tortfeasor, that the worker's "injury" is "an injury for which compensation is payable" under the WCA. In addition: 1. No such requirement has been stated during consideration by appellate authorities of the matters which must be determined to establish entitlement under the indemnity in s 151Z(1)(d): Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263; [1999] NSWCA 250 at [7]-[8]; Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 at [89]-[90]; OCS Australia Pty Ltd v Cho [2010] NSWCA 85 at [4]; 2. The State's construction of the section is supported by s 151Z(5) of the WCA, which allows the recovery of compensation whether or not the compensation was paid by the employer under an award or judgment or an agreement. This contemplates the payment of compensation where an entitlement under the WCA is not established.
In the event that I am wrong in this interpretation of s 151Z, I proceed to determine whether Ms Jay had a right to recover workers compensation under the WCA.
The WCA is a remedial statute designed to provide compensation to a worker for any personal injury arising out of or in the course of employment: s 4 of the WCA in the definition of "injury"; Bird v Commonwealth (1988) 165 CLR 1; [1988] HCA 23 at [7] per the majority and at [5] per Dean and Gaudron JJ. Employee's compensation legislation is remedial in character and should be construed beneficially; State of New South Wales v Chapman-Davis [2016] NSWCA 237 at [76].
Section 4 of the WCA, which sets out the definition of "injury" in the WCA which is "personal injury arising out of or in the course of employment", was considered in detail by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 at [72]-[79]. The majority (Allsop P, Beazley and McColl JJA) emphasised the use of the disjunctive in the definition and stated that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9 of the WCA. The majority held that the second limb of the definition "in the course of employment" involves a temporal element and does not of itself contain a causative element whereas the first part "personal injury arising out of" does contain a causative element. At [79] the majority emphasised that there was clear High Court authority that there was a necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury "arising out of" employment. All that must be shown is that but for the employment, the worker would not have been at the scene of the accident: at [78]. In The Star Pty Ltd v Mitchison [2017] NSWCA 149 at [87] the Court of Appeal clarified this and stated that the worker's work must have been the reason they were at the place where the injury occurred and the employment must have caused the injury suffered.
On any view of the evidence, Ms Jay was to see the psychologist Ms Anderson having left her place of employment and stopping for the consultation before proceeding to her next appointment with Ms Baxter. Whilst I have found that Ms Jay was not seeing the psychologist for issues concerning distress to other employees, it is clear that Ms Jay was seeing the psychologist for stresses relating to matters arising from her employment. Accordingly, the injury was caused, in my view, to Ms Jay arising out of the course of employment. But for her employment at the TAFE, Ms Jay would not have been seeing Ms Anderson on that day in relation to her problems. Those problems arose out of her work.
Further, I accept the evidence of Ms Jay that having regard to her executive status at the TAFE, it was not necessary for her to seek express approval for absences from work during the course of the working day.
In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21, the High Court noted at [12] that appellate courts have upheld many awards of compensation in favour of workers "in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment": see also The Star Pty Ltd v Mitchison [2017] NSWCA 149 at [63]-[88].
In the present case: 1. Ms Jay had initially been referred to the psychologist under the EAP scheme; 2. That clearly was a scheme connected to her employment; 3. The matters she was seeing the psychologist about related to her own difficulties in the course of her employment; 4. The appointment occurred between her attendance at work and on the way to an appointment with the Institute Director; 5. Having regard to her seniority, the plaintiff did not need to seek express approval to attend medical appointments during absences: T311; T351; 6. The notes of Ms Anderson of Caro Consultancy which are part of Exhibit 1D6 show a consistent theme of work-related consultations.
Accordingly, it would seem to me that Ms Jay was "temporarily absent from [her] place [of employment] … during any ordinary recess or authorised absence" on the day of the accident. Thus the injury fell within s 11 of the WCA. As a senior executive, Ms Jay apparently had a standing authority to take absences for private purposes such as attending doctors during the course of the working day: T311.8.
It would also appear that the claim of Ms Jay was a "journey" claim under s 10(3)(c) of the WCA as Ms Jay was making a journey for the purpose of obtaining medical advice, attention or treatment in connection with any injury for which she was entitled to receive compensation under the WCA. The evidence suggests that Ms Jay was referred to Ms Anderson through her work on the EAP scheme and the stresses involved clearly arose out of her employment: see Exhibit 1D6 pages 285 and 278.
For these reasons, in my view the injury which Ms Jay suffered on 22 August 2013 was an injury which: 1. Fell within the definition of "injury" in s 4 of the WCA; 2. In the alternative, was a valid authorised absence claim within s 11 of the WCA; 3. In the further alternative, was a valid journey claim under s 10(3)(c) of the WCA.
Therefore, the injury was an injury "for which compensation is payable" under the WCA: s 151Z(1) of the WCA. It follows that the workers compensation payments which have been made by the State in relation to Ms Jay, are recoverable by it under the statutory indemnity in s 151Z(1)(d) of the WCA.
There is no evidence that the payments made in relation to Ms Jay by the State are or have been unreasonable in any way. In noting that, I am not concluding that reasonableness of the payments must be established by the State. Such a requirement is not mentioned in s 151Z(1)(d) of the WCA. If it is a requirement, I accept the submissions made by counsel for the State that it could only apply to the workers compensation paid for medical treatment: paragraphs 55-59 and s 60(1) of the WCA. Reasonable necessity does not appear to be a requirement in respect of the payment of weekly benefits. Section 151Z(1)(d) only refers to the requirement that "the worker has recovered compensation under this Act". Otherwise, this could give rise to a further case within the case if the payment of compensation is pursuant to some sort of compromise or settlement of a matter between a worker and an employer. There is no evidence in the present case in my opinion that any payments made by the State to or in respect of Ms Jay (including in relation to medical payments) were unreasonable or reasonably not necessary (subject to some specific findings below).
The list of payments in Exhibit 2D5 shows the amount of the compensation which has been paid by the State in relation to Ms Jay at the date of the document.
In relation to the question of interest as claimed by the State on its workers compensation payments, the defendants accept that interest as a result of a recovery action brought pursuant to the statutory indemnity may be ordered pursuant to the power of the court and is not part of the indemnity: see Perrett v Sydney Harbour Foreshore Authority [2009] NSWSC 1026 at [110]-[112]. The appeal from the decision of McCallum J was dismissed: [2010] NSWCA 160.
I will leave it to the parties to calculate the relevant interest applicable.
The other matters said by the defendants in their written submissions to limit the amount of indemnity payable have been dealt with by me in relation to my factual and medical findings.

[10]

Duty of care and breach

In Hyjer v Lopes [2018] NSWDC 8 I stated the following general principles in relation to a duty of care in a motor accident case at paragraphs 162-167: "[162] Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 and Part 1A (Negligence) apply to "motor accidents". Accordingly, in determining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach was causative of any injury suffered by a plaintiff in any motor vehicle accident, the court must apply the sections in those divisions including ss 5B, 5C and 5D (relating to causation). [163] It is useful to set out some of the general principles accepted by appellate courts in relation to the obligations which a driver of a motor vehicle owes to others. [164] In Manley v Alexander [2005] HCA 79; 80 ALJR 413 the majority of the High Court stated as follows: "[11] No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. [12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." [165] This statement has been referred to with approval in Townsend v O'Donnell [2016] NSWCA 288 at [45]: "[45] First, the appellant did not submit that the primary Judge failed to apply the correct legal principles. Her Honour referred to ss 5B, 5R and 5S of the CL Act and clearly bore those provisions in mind. Her Honour also referred to the observations of the majority of the High Court in Manley v Alexander, where their Honours pointed out that: recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path." [166] A more expansive consideration of the duty owed by drivers was made by Meagher JA (with whom Macfarlan and Emmett JJA agreed) in Marien v Gardiner [2013] NSWCA 396 where his Honour stated as follows at [33]-[37]: "[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. [34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48 ; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision." [167] Marien has also been approved recently by the Court of Appeal: Logar v Ambulance Service of NSW Sydney Region [2017] NSWCA 274 at [142]."
In accordance with these principles, the defendant Mr Baker owed a duty of care to the plaintiff Ms Jay as a pedestrian and as a person being near the roadway to exercise reasonable care in the driving of his motor vehicle for the plaintiff's safety having regard to all the circumstances of the case. That exercise of reasonable care requires reasonable attention to all that is happening on or near the roadway: Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11].
The question then arises whether the defendant, Mr Baker, breached that duty of care which he owned.
Sections 5B and 5C of the Civil Liability Act 2002 (NSW) ("CLA") are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
I refer to my factual findings above. These include: 1. In the light of all of the evidence, the plaintiff Ms Jay had not taken two steps or even one step in crossing the road before she was struck by the defendant's vehicle; 2. The vehicle driven by the defendant was not in the centre of his lane as he asserts but was travelling far too close to the edge of the road immediately adjacent to or just on the fog line and was proceeding southwards in a dangerous location having regard to its proximity to the fog line; 3. Mr Baker had a clear view ahead for 100m and should have seen the plaintiff wearing her three-quarter length red coat by the side of the road well before he did and at 85-100 metres from her car; 4. If the defendant had travelled in the centre of the southbound lane, it was likely that the collision with the plaintiff would not have occurred; 5. If the defendant Mr Baker had been travelling at a safe separation from the plaintiff standing beside her vehicle, which should have been clear to him, it is likely the collision would not have occurred; 6. If the defendant had seen the plaintiff from a distance of 85m to 100m as he should have, the defendant should have slowed further down, moved his vehicle closer to the centreline of the road and would have clearly avoided a collision with the plaintiff; 7. The clear cause of the accident is the failure of Mr Baker to travel in his vehicle either in the centre of the lane, or, upon noticing the plaintiff as he should have much earlier than he did, travelling closer to the centre line thus allowing a clear space between the plaintiff turning on the side of the road and his vehicle; 8. The defendant was driving his vehicle too close to the plaintiff standing by her vehicle and in a manner which was dangerous and did not have proper regard to the plaintiff's vulnerable position in the circumstances.
The defendant was in my view clearly inattentive and careless in not seeing the plaintiff well before he did and slowing down and moving his vehicle more towards the centre of the road.
I then turn to apply s 5B of the CLA to the facts of this case: 1. The risk of the defendant's vehicle striking the plaintiff and causing injury if the defendant did not drive closer to the centre line or take evasive action was a clearly foreseeable risk, being a risk of which the defendant ought to have known; 2. The risk was clearly not insignificant. The plaintiff was immediately next to her vehicle and on or near the fog line and the circumstances therefore necessitated Mr Baker slowing down and moving more towards the centre of the lane; 3. In all the circumstances of the facts of this case, a reasonable person in Mr Baker's position would have taken the precautions of slowing down, moving more towards the centre of the lane and taking evasive action including possibly operating his horn; 4. There was a high probability that a collision with the plaintiff would occur if care was not taken by the defendant to move his vehicle more towards the centre of the road and take evasive action; 5. The harm which could have occurred in striking the plaintiff with his vehicle was very serious and included even death; 6. The burden of taking precautions on Mr Baker to avoid the risk of harm by slowing down and moving his vehicle more to the centre lane and/or taking evasive action was not significant; 7. The social utility of the defendant in driving his car as he did was not such that the risk of harm created in the manner he was driving his car should be excused.
I take into account the principles in s 5C of the CLA which in my view do not alter the analysis which I have undertaken.
Taking into account all of these matters, in my view the defendant failed to take reasonable care for the safety of the plaintiff as a pedestrian near her parked vehicle on the side of the road.
As stated by the High Court in numerous cases and by the Court of Appeal in Marien, the standard by which reasonable care is measured is an objective and impersonal one and is to be addressed prospectively by reference to what a reasonable driver in the defendant's circumstances would have done in response to any foreseeable risks of injury or "sources of danger" to road users: Marien at [34]. A reasonable driver in the circumstances of Mr Baker would clearly have taken steps to slow down, carefully observed the plaintiff and move his vehicle towards the centre of the road so as to avoid any contact with the plaintiff.
I therefore find that there was a breach of the duty of care owed by the defendant Mr Baker to the plaintiff Ms Jay for the reasons which I have given.

[11]

Causation

Sections 5D and 5E of the CLA provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. In relation to the relevant principles to be applied concerning s 5D of the CLA, I refer to Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ, at [189]-[198] per Beazley P and at [319]-[324] per Basten JA.
Under s 5D(1)(a) of the CLA, the determination of factual causation involves the application by the court of a "but for" test of causation. That is, a determination by the court that in accordance with s 5D that the negligence of the defendant was a necessary condition of the occurrence of the harm. That involves a determination on the balance of probabilities that the harm to the plaintiff in fact occurred and would not have occurred absent the negligence of the defendant: Strong v Woolworths Ltd, above, at [18].
In the present case, the issue is whether the breach of duty of care by the defendant Mr Baker, caused the collision with the plaintiff at the side of the road and caused the injuries of which the plaintiff complains. That issue involves the question whether but for the breach of duty of care by Mr Baker in the present case, the collision would have been avoided and the plaintiff would not have suffered the injuries of which she complains. Clearly but for the breach, the plaintiff would not have suffered the physical injuries of which she complains. In relation to the psychological injuries, I refer to my findings above.
Therefore, on this analysis, causation has been established in the present case. Having reviewed all the circumstances of the case, in my view there is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm caused: s 5D(1)(b) of the CLA. There is also in my view no apparent reason why responsibility for the harm should not be imposed on the defendant Mr Baker: s 5D(4) of the CLA.

[12]

Contributory negligence

In relation to the issue of contributory negligence, I refer to the analysis by Mahony DCJ in Calcagno v Dent [2015] NSWDC 308 at [87]-[92]. Although the decision of Mahony DCJ was overturned by the Court of Appeal (Dent v Calcagno [2016] NSWCA 289) his Honour's consideration of the principles of contributory negligence in motor vehicle accidents was not questioned: see at [58] and [91].
In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley P (with whom Barrett and Gleeson JJA agreed) stated as follows at [161]-[162]. [161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case".
The decision of the Court of Appeal in Grills was quoted with approval by Gleeson JA (with whom Leeming JA and Davies J agreed) in Boateng v Dharamdas [2016] NSWCA 183 at [129]. See also the analysis of Meagher JA in the Court of Appeal in Davis v Swift [2014] NSWCA 458 at [23]-[29].
Following these principles, in applying s 5R of the CLA, a court considering contributory negligence is required in determining whether a person has been contributorily negligent to apply the provisions of ss 5B and 5C of the CLA which I have set out above.
In my factual findings above, I found: 1. After looking in her mirror and exiting the vehicle, the plaintiff did not again look at traffic travelling in the direction where her vehicle was facing; 2. The total duration of the plaintiff's actions from opening her door on her car to finishing manually locking the door and putting the keys into her handbag was found by the experts to be likely in excess of nine seconds and probably around 12 seconds. I accept that evidence; 3. The plaintiff failed to look for traffic after exiting her vehicle and should have looked for cars travelling in a southerly direction like the defendant's car which would have assisted her in taking evasive action if she had been cognisant of the traffic travelling south. In my view this was careless and inattentive of the plaintiff. The plaintiff should, in my view, have exercised care to check the approaching traffic and not to have undertaken the turning motion which she did without seeing that it was safe in all the circumstances. In my view, it is likely that if the plaintiff had checked on occasion after exiting the vehicle she would have seen the defendant's vehicle approaching close to or on the fog line and would have taken action either to walk around the front or the back of her car or place herself flat against her vehicle. In my view such acts would have likely avoided the collision.
I now turn to apply the principles in ss 5B and 5C of the CLA to determine whether the plaintiff is contributorily negligent: 1. The risk is foreseeable of the defendant potentially not seeing the plaintiff or only seeing her at a time when he did not have time to take evasive action. This was a risk which in my view the plaintiff ought to have known; 2. The risk in my view was not an insignificant one in all the circumstances; 3. In my view, a reasonable person in the position of the plaintiff would have taken the precaution of looking every few seconds at the approaching vehicles and placing herself flat against the car or walking around the front or back of her vehicle until the defendant's vehicle passed; 4. Having regard to the likelihood of the defendant's vehicle being close to the fog line, the probability that a collision with her may have occurred was more than insignificant; 5. A collision with the plaintiff was potentially very serious to her as she was a pedestrian even though the defendant's vehicle was not travelling at an excessive speed; 6. The burden of taking precautions to avoid the risk of harm was insignificant to the plaintiff; 7. The social utility of Ms Jay locking her vehicle and turning around to cross the road was not of a nature to mean that she should not have taken the steps which I have indicated.
As I have found that evasive steps would have avoided the collision and in light of my application of the principles in ss 5B and 5C of the CLA, I find that the plaintiff did not take reasonable steps for her own safety and was thus contributorily negligent.
Section 138 of the Motor Accidents Compensation Act 1999 (NSW) provides as follows: "138 Contributory negligence - generally (cf s 74 MAA) (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. … (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage."
I therefore have to determine the percentage which I think is just and equitable in the circumstances of the case by which the damages to be recovered by the plaintiff, Ms Jay, should be reduced in the light of the finding of contributory negligence. I take into account the principles stated by the High Court in Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529 at [8]-[10] in relation to the issues of relative culpability and causal potency. The defendant submits that the reduction should be 65%: see revised submissions dated 15 August 2018. Ms Jay submits any reduction should no higher than 10%.
I take into account the background facts set out above. In determining what is just and equitable in the circumstances of the case, I make as part of the assessment process, a comparison of each party's conduct.
Taking into account all the circumstances of the case, in my view the acts and omissions of the defendant, Mr Baker, were far more significant than the omissions of the plaintiff. He was driving ahead in the middle of the day on a straight road in circumstances where the plaintiff was at the side of the road locking her vehicle and wearing a red coat. Although he was driving at a relatively slow speed, he should have seen the plaintiff well before he did and taken action to slow down further and move to the centre of the road or take other evasive action. In relation to the plaintiff Ms Jay, I have rejected the assertion that she had taken any step or steps to cross the road.
Taking into account all the circumstances of the case and the relevant acts and omissions of each of the parties, in my view the plaintiff's damages should be reduced by 15% on account of her contributory negligence.

[13]

The blameless accident provisions

In my view, the blameless accident provisions of MACA are not relevant in the present case as I have found the defendant to be liable to the plaintiff for breach of a duty of care owed by him to her. I accept the plaintiff Ms Jay's reply submissions on this issue: submissions dated 22 June 2018 paragraph 12.
If I am wrong in relation to that conclusion, then it would appear to me that the blameless accident provisions of MACA apply to a pedestrian like Ms Jay: see Part 1.2 Division 1 of MACA and Davis v Swift [2014] NSWCA 458 at [33]-[36]. The accident in the present case would fall within the definition in s 7A of MACA. The damages under the blameless accident provisions may be reduced by reason of the contributory negligence of the injured person: s 7F of MACA. Accordingly, the plaintiff's damages should be reduced under the blameless accident provisions in the event that I am found to be wrong in relation to my findings concerning the defendant on account of the plaintiff's contributory negligence.
A question arises as to the proper percentage of the reduction. This will depend on any determination made on appeal which is contrary to the factual findings I have made. If the plaintiff Ms Jay was struck on or within one step of the fog line this is significant. The plaintiffs submitted that there should be no greater reduction under the blameless accident provisions. The defendants seek a reduction of 80%: revised written submission dated 15 August 2018. It is submitted by the defendants that the blameless accident provisions require a higher reduction than where liability has been found, relying on the analysis of the Court of Appeal in Axiak v Ingram [2012] NSWCA 311 at [83]-[90] and Davis v Swift [2014] NSWCA 458 at [44]-[52]. It is submitted that Ms Jay's conduct amounted to a serious and significant departure from the behaviour expected from a reasonable person. The plaintiffs submit that the conduct of the plaintiff Ms Jay in the present case involved common conduct where a person gets out of their car having parked it. It is submitted that the facts of this case are completely different from cases such as where there was a clear and dangerous failure by the plaintiff to take reasonable steps for their own safety.
The analysis requires an assessment of "how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety": Axiak at [85].
The accident was the result of both the defendant's conduct in driving his car along the road close to the plaintiff's parked vehicle and the plaintiff's conduct in being at or near her parked vehicle near the fog line. The plaintiff's conduct in remaining facing her vehicle and then turning around towards her right without checking oncoming traffic needs to be considered: Davis v Swift, above at [49]. A reasonable person would have regularly checked oncoming traffic. However, the plaintiff's conduct is not as serious a departure as the plaintiff in Axiak (running across the road without looking) or, in my view, the plaintiff in Davis (walking towards the middle of the road and then "suddenly and quickly stepp[ing] or [running] backwards without looking or turning": at [47] in Davis). There is no evidence the plaintiff was affected by drugs or alcohol. A different defendant may have avoided the collision. The accident was not inevitable. Taking these matters into account, if the blameless accident provisions apply the plaintiff Ms Jay's damages should be reduced by 25%.

[15]

Each party's submissions Head of damage Ms Jay's submission The State's submission - adopts Ms Jay's submissions The defendants' submission - 2 alternatives depending on whether the plaintiff's psychiatric conditions are held to be caused by the accident Non-economic loss $300,000 $150,000/$200,000 Past out-of-pocket expenses Final figure to be advised at the time of judgment $56,511/$132,021 Future out-of-pocket expenses $64,150/$94,150 (i) radiology $18,953.65 (ii) blood tests $2,400.68 (iii) medication $43,632.01 (iv) surgery $20,000.00 (v) pain management specialist subsequent consultations $3,928.39 (vi) general practitioner - 3-4 times per annum to age 80 $16,587.60 (vii) physiotherapy every three-six months to age 80 $2,077.05 (viii) occupational therapy every two years to age 80 $829.26 (ix) podiatry every six weeks to age 80 $4,802.52 (x) psychiatric consultations for five years $2,937.73 (xi) psychological consultations for 5 years $3,222.48 Future equipment $2,825.00 $5,000/$5,000 Past domestic assistance $13,050/$13,050 - 6 hours per week for 26 weeks from the date of the accident at $29 per hour (i) 23 August 2013 - 1 December 2013 = 15 weeks at $27.82 per hour at 10 hours $4,173.00 (ii) 2 December 2013 - 2 October 2014 equals 43 weeks at $27.96 per hour for seven hours $8,415.96 (iii) 3 October 2014 - 9 November 2014 = 5 weeks at $28 .87 per hour for 11 hours $1,587.85 (iv) 10 November 2014 - 15 September 2016 = 97 weeks at $28.87 per hour for seven hours $19,602.73 (v) 17 September 2016 to date 86 weeks at $30 per hour for 7 hours $18,060.00 Future domestic care - 7 hours per week at $30.15 per hour for 23 years to age 80 $152,209.26 $21,950/$21,949.20 Past economic loss $40,100/$158,529 at $1,822 per week (i) 28 August 2013 - 4 November 2013 at $1,822 per week = 10.57 weeks $19,259.00 8 weeks following accident - $13,510 8.10.13 -30.1.14: $7,314 (ii) 5 November 2013 - 15 September 2016 at $1,822 per week = 150 weeks $273,300.00 1.12.13 - 30.1.14: $6,905 17.10.14 - 7.12.14: $5,466 8.12.14-31.1.15: $6,905 (iii) 16 September 2016 to date at $1,822 per week = 87 weeks $154,870.00 1.4.15 to date (165 weeks) - only if psychiatric condition caused by the accident: $118,430 Sub-total $447,429.00 Minus earnings during the relevant period $146,801.14 Total $300,627.86 Superannuation on past economic loss at 11% $33,069.06 $4,411/$17,439 Future economic loss$1,200 net per week for 13 years minus 25% for vicissitudes $452,070.00 $75,000 (buffer)/$174,720 Superannuation at 12% of the net value $54,248.40 Within buffer/$20,967 Fox v Wood $36,363.00 $15,000 (to be updated)

[16]

Non-economic loss

It is not in issue that the plaintiff Ms Jay has a greater than 10% whole of person impairment as a result of the accident. Accordingly, she is entitled to be awarded an amount for non-economic loss to be assessed by the court. From 1 October 2017 the maximum amount of damages for non-economic loss which may be awarded under MACA is $527,000: Motor Accidents Compensation (Determination of Loss) Order 2009. See also s 131 of MACA.
In determining the appropriate amount I take into account: 1. My medical findings which are set out above; 2. The plaintiff's past pain and the plaintiff's continuing pain, although this appears to have lessened considerably in constancy and severity in recent times, resulting in her not taking any prescribed pain relief medication since 2017; 3. Her continuing chronic pain problem referred to in various medical reports (qualified by my comments in the previous sub-paragraph); 4. Her serious psychiatric condition in accordance with my medical findings; 5. The effect of her injuries on her life, noting that in 2017 her condition appears to have improved at times allowing her to undertake various activities including the commencement of one unit in a Bachelor of Arts in Social Work and other social and connected activities.
However, the plaintiff's conditions are reasonably serious. Her prognosis is not certain and it is clear from her presentation and the medical evidence that she has ongoing significant psychiatric problems. I also find that currently there is no realistic prospect of her returning to work.
Taking into account all of these factors and the submissions made, in my view I should allow $225,000 for non-economic loss. In my view the plaintiff's submission of $300,000 does not take into account that the plaintiff's pain condition varies, that she has not been taking prescribed pain medication recently and that there have been occasional signs of improvement in her psychiatric condition allowing her to undertake some limited learning and social activities. Nevertheless, the plaintiff's current conditions, particularly the psychiatric ones, are in my view constant and debilitating. The defendants' submissions somewhat understate in my view the appropriate allowance for this head.

[18]

Future out-of-pocket expenses

The plaintiff seeks an allowance for various likely future out-of-pocket expenses which, it is submitted, the evidence establishes. The evidence relied upon is the analysis and appendix to the report of Dr Monica Ling dated 8 February 2016: Exhibit D pages 33-50. The defendants allow a much lower figure. The defendants have referred in their submissions to a figure which allows $5,000 for equipment and various allowances depending on the link between the accident and the psychiatric conditions.
The amounts sought have to be assessed in the light of the whole of the evidence including: 1. The improvements in some aspects of the plaintiff's condition in 2017 which have allowed her to engage in some social activities such as commencing a unit in the Bachelor of Arts in Social Work and engaging in charitable/spinning activities; 2. Her psychiatric deterioration in December 2017; 3. Her presentation whilst giving evidence in April 2018 in the light of the most recent reports of Dr Roberts and Dr Burke and Dr Duncan; 4. My medical findings which I have set out above; 5. The plaintiff's evidence, confirming what she told Ms Toner on 27 July 2017 that most days she has her pain under control and can do whatever she needs to be comfortable: T363.12-.18; 6. The fact that the plaintiff does not appear to have obtained scripts for pain relieving medicine prescribed by Dr Thong since February 2017: Exhibit 1D6 behind Tab 9, being the PBS patient summary for Ms Jay; 7. The medical evidence which suggests that whilst the plaintiff has a continuation of chronic pain that her physical injuries have substantially settled although some variable pain continues.
Taking into account all of these matters, I consider the claims by the plaintiff for future out of pocket expenses to be in some cases excessive. Most need to be reviewed because of my findings. The quantification of the damages in relation to the various claims presents difficulties in the light of my findings in relation to the improvement in the plaintiff's physical complaints and pain in more recent times. This leads me to the opinion that lump sum awards are the best way to deal with the various claims. In making such lump sum awards, I take into account the need to approach this head of damages on a Malec v JC Hutton basis: Avopiling at [165]-[166]. As stated by Payne JA at [166], some future medical expenses are "subject to fewer contingencies than other categories of future economic loss". Doing the best I can on the limited evidence, I allow the following amounts: 1. Radiology - Dr Ling expresses the opinion that as the plaintiff is likely to have lifelong ongoing symptomatic degenerative joint disease at her lower back and left hip, it is likely that she will require x-rays and possible MRI or CT scans of these joints up to every 3 to 5 years to monitor her progress and to determine if any surgical intervention would be of benefit. Currently there is no suggestion in the medical evidence that surgery is advisable or likely in relation to these areas. I accept that some allowance should be made for the possibility of the need for future radiology of the plaintiff's condition. In my view the amount of $6,000 adequately allows for this possible expense; 2. Blood tests - Dr Ling states in her report that regular blood tests of Ms Jay's haematology, renal and hepatic function should be performed twice yearly to monitor the side-effects of her analgesic medications. The evidence establishes that in recent times the plaintiff has not been filling prescriptions for pain medication, at least from her pain specialist Dr Thong. It is possible that the plaintiff will need to take further pain medication in the future. Having regard to these matters I would only allow $700 for future out-of-pocket expenses under this head; 3. Medication at $51.98 per week - The plaintiff will clearly require psychiatric medication and possible pain medication if and when it is required. However, the evidence suggests that the plaintiff is not currently taking prescribed pain relief medication. The prognosis for the plaintiff's psychiatric condition is uncertain. Assessing all the evidence and the submissions made I would allow $15,000 under this head; 4. Surgery - Dr Ling states that if Ms Jay develops deterioration of her left hip symptoms, a hip arthroscopy and possible future total hip replacement may be required. Spinal surgery may also be indicated in certain circumstances. There is no current evidence this is required or is even likely in the future. Taking into account all the evidence I would allow only $8,000 for the possibility under this head; 5. Pain management specialist, subsequent consultations - The evidence shows that the plaintiff continues to consult Dr Thong. However, she appears to be more comfortable in managing her pain and there is a real prospect that pain management specialist consultations will become less frequent and possibly cease. Taking into account all the evidence and the plaintiff's apparent cessation of pain relief medication, as prescribed, since 2017, I would allow $2,500 under this head; 6. General practitioner - The plaintiff Ms Jay claims attending her general practitioner three to four times per annum to age 80. Some allowance for attending the general practitioner should clearly be required. However, the evidence establishes that psychiatric and psychological consultations should only be allowed for five years. In my view, more limited general practitioner consultations would be appropriate. I allow $5,000 as a lump sum under this head; 7. Physiotherapy - The plaintiff Ms Jay claims an allowance for physiotherapy every three to six months to age 80 at $75 per attendance. In my view an allowance for physiotherapy would be appropriate to assist the plaintiff in maintaining her core body strength and her general flexibility. I allow $2,000 under this head. 8. Occupational therapy every two years to age 80 at $120 - In my view this is an excessive amount to allow every two years but some allowance should be made for four sessions. I would allow a figure of $450 under this head; 9. Podiatry every six weeks to age 80 at $60 per session - The evidence shows that the plaintiff has difficulty with cutting her toenails. I would allow $4,500 under this head. 10. Psychiatric consultations at $330 with additional consultations twice per annum at $330 for five years - This appears to be justified on the medical evidence and I would allow the amount claimed by the plaintiff of $2,937.73 under this head without a discount; 11. Psychological consultations - In my view the medical evidence clearly establishes the need for the plaintiff to maintain contact with her psychologist as part of her mental recovery and mental health. I would allow the amount claimed by the plaintiff of $3,222.48 without a discount.
The total for future out-of-pocket expenses allowed is therefore $50,310.21.

[20]

Past domestic assistance

I have set out above the amount sought by the plaintiff in relation to past domestic assistance. The amounts claimed by the plaintiff per hour appear reasonable having regard to s 141B of MACA. Further, in my view, the periods and hours claimed by Ms Jay for past domestic assistance are established by the evidence. I find that these amounts are properly claimed. The defendants' amounts are not consistent with my findings.
The initial period from 23 August 2013 to 1 December 2013 of 15 weeks is established by the evidence of Ms Jay: T33.9. The amount of $4,173 is therefore allowed. The plaintiff claims $1,202.28 for the period of 43 weeks between 2 December 2013 and 2 October 2014 at $27.96 per hour for seven hours. This appears to be an error in calculation and the amount allowed should be $8,415.96 as the plaintiff's figure has not been multiplied by seven hours. In relation to the period from 3 October 2014 to 9 November 2014 being five weeks at $28.87 per hour for 11 hours the plaintiff claims $144.35. Again, this seems to have been calculated wrongly and the correct figure should be $1,587.85. As there is some doubt in the plaintiff's evidence at T33.35 as to the period, I would only allow $1,300 for that period. In relation to the period 10 November 2014 to 15 September 2016 being a period of 97 weeks at $28.87 per hour for seven hours the amount of $19,602.73 appears to be established by the evidence: see T34.1-.8. In relation to the period from 17 September 2016 to date, the plaintiff claims 86 weeks at $30 per hour for seven hours amounting to $18,060. This again would appear to be justified on the evidence: see T34-T35. This figure will have to be updated to the date of these reasons. Mr Jay generally gave supportive evidence in relation to the plaintiff's duties before and after the accident: T208-209. I accept his evidence. I found him to be an impressive witness.
Ms Natasha Taylor-Fick in her report and oral evidence lowered the number of hours per week which the plaintiff claimed for work done in the garden. The basis for this was that she did not believe that the plaintiff spent the time she claimed in the garden per weekend. In my view the evidence of Mr Jay is a more accurate and reliable guide to what the plaintiff did prior to the accident and I accept his evidence: see T208-210.

[22]

Past economic loss

The findings which I have made in relation to the medical evidence lead me to the conclusion that I prefer the medical evidence of the plaintiff that all periods during which the plaintiff has not worked since the motor accident have been due to physical and/or psychiatric injuries arising from the accident. In this regard I prefer the evidence of Dr Bodel (Exhibit D page 7), Dr Ling (Exhibit D pages 44 and 54) and Dr Burke (Exhibit E page 24) to that of Dr Sekel. I also note that Dr Roberts appears to indicate that Ms Jay does not have any capacity to pursue employment in a sustained manner (Exhibit 1D6 Volume 1 page 21) although he puts that down to a pre-existing depressive illness. Dr Shatwell expresses the opinion that Ms Jay has been fully fit for her preinjury duties from February 2014 (Exhibit 1D6 page 34) although he notes that her prognosis for return to work is poor due to her psychological problems (Exhibit 1D6 page 35). Overall, I prefer the evidence of the plaintiff's witnesses which is, in my view, far more consistent with the plaintiff's clear limitations. I also note the defendants' expert, Dr Harvey-Sutton, states that the plaintiff would be unfit to work for some two to three years from the date of her 18 April 2017 report (Exhibit 1D4 pages 317 and 320).
For these reasons I allow the plaintiff's past economic loss for the periods claimed by counsel for the plaintiff in his written submissions. The plaintiff claimed $1,930 per week net for part of the first period and $1,822 thereafter. The higher figure for the initial period was not pressed in final oral submissions. The defendants allow $1,822 for net weekly earnings. In my view the figure of $1,822 should be allowed for the entire period referred to in the plaintiff's schedule: see Exhibit A page 28 being the plaintiff's tax return for the year ending 30 June 2013. The parties should consult to determine an agreed figure for past economic loss having regard to my findings.

[24]

Future economic loss

The plaintiff claims a loss of future earning capacity assessed at $1,200 net per week for 13 years minus 25% for vicissitudes being $452,070.00.
The award of damages for future loss of earning capacity is governed by s 126 of MACA. Section 126 of MACA provides as follows: "126 Future economic loss - claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71] and [84]: "[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said: "Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly." The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ. [71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act". In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570: "when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.""
In assessing the appropriate figure for loss of future earning capacity, I must assess Ms Jay's most likely future circumstances but for the injury.
In my opinion, the following matters are relevant: 1. Ms Jay was at the senior executive level. She was continuing in her job. Her four adult sons had left the family home for some time at the time of the accident; 2. Ms Jay was clearly a career focused person who indicated that she "loved" her job and apparently assessed part of her self-esteem on her success and capacity to undertake her work. Money does not appear to have been her sole motivating factor; 3. However, her work was stressful and required extensive vehicle travel throughout New South Wales; 4. Her husband also was in employment with a high paying job: Exhibit F page 70; 5. The plaintiff had clearly had problems coping with work prior to the accident and found her work to be stressful. As stated above, she had taken some time off work, was on Pristiq, and was consulting a psychologist. She had shown on and off some anxiety and depressive symptoms. Her work required extensive travel in country New South Wales.
Counsel for the plaintiff submits that even with these factors the plaintiff Ms Jay would have remained working until she reached 67 years of age. The defendant submits that if the court considers a closed period of loss of future earning capacity is appropriate, then it should find that Ms Jay would have left her work no later than mid 2017 because of her prior serious health conditions and the matters set out in the previous paragraph.
Taking into account all of these matters, whilst I think it more likely that but for the accident the plaintiff would have remained in her job for at least several years, I think it likely that she would have retired at about 60 years of age. This would have allowed her to continue to develop the garden on her property which she clearly liked doing. It would also have allowed her to focus on her fitness, social and spinning activities. It would have avoided the ongoing travel requirements in country New South Wales and allowed her to spend more time at home. This conclusion takes into account her prior health history, the fact that the job the plaintiff had was demanding, required extensive travel and she found it at times highly stressful: see also Mason v Demasi [2009] NSWCA 227 at [5]. It takes into account the plaintiff's husband's highly paid job which allowed ongoing income into the family. It also takes into account that the plaintiff liked her job despite its drawbacks. Accordingly, I find that the most likely scenario but for the accident is that Ms Jay would have continued working, taking some time off on paid leave when required, until she turned about 60. I allow $1,200 net per week for three years (multiplier 145.6 x $1,200) which equals $174,270. The issue arises whether I should take off the usual 15% for vicissitudes or some lesser or greater figure in the light of her pre-accident health issues. This is a "broad evaluative decision": at [101] in Avopiling, above per Payne JA. In my view I should not take off the usual 15% for vicissitudes (or some greater or lesser figure) as the usual risks of a different working future history are built into my finding. I note the defendant does not reduce the amount for vicissitudes for this head of damages in his schedule.
If I am wrong in this conclusion and it is held that it is not available, I consider that it is highly unlikely that the plaintiff would have worked past 65. In that scenario the amount allowed is as follows: multiplier 345.6 equals $414,720. Having regard to the matters which I have outlined above, in that scenario I think that a discount for 25% for vicissitudes as the plaintiff allows on her schedule of damages is appropriate. This would in my view be consistent with general principle and the analysis in [101] in Avopiling. The amount in the alternative scenario, if I am wrong in my primary analysis, is $311,040.

Parties

Applicant/Plaintiff:

Jay

Respondent/Defendant:

Baker; State of NSW

Legislation Cited (4)

Civil Liability Act 2002(NSW)

Civil Procedure Act 2005(NSW)

Motor Accidents Compensation Act 1999(NSW)

Workers Compensation Act 1987(NSW)

Cases Cited (54)

OCS Australia Pty Ltd v Cho [2010] NSWCA 85 Perrett v Sydney Harbour Foreshore Authority [2009] NSWSC 1026 Pham v Shui [2006] NSWCA 373 Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALR 529 South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161 Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 State of New South Wales v Chapman-Davis [2016] NSWCA 237 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Sydney Harbour Foreshore Authority v Perrett [2010] NSWCA 160 The Star Pty Ltd v Mitchison [2017] NSWCA 149 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Category: Principal judgment Parties: Katrina Marie Jay (Plaintiff 2015/193834) State of NSW (TAFE NSW Previously TAFE Commission) (Plaintiff 2016/26942) Edward Baker (Defendant 2015/193834; First Defendant 2016/26942) Wendy Elizabeth Baker (Second Defendant 2016/26942) Representation: Counsel: K Andrews (Plaintiff 2015/193834) P Tierney (Plaintiff 2016/26942) J Gracie (Defendants) (13-15 June 2007); L McFee (4-5 December 2017 onwards)

Pre-accident medical notes

The defendants relied on pre-accident medical notes prepared by the plaintiff's general practitioners at Anson Orange General Practice and notes of Ms Rebecca Anderson, psychologist, of Caro Consulting. Dr Roberts regarded these notes as being very important to his opinions. They were also reviewed by Dr Burke prior to or during his evidence.
Some caution should be exercised by the court before relying too heavily on these notes.
In Mason v Demasi [2009] NSWCA 227 Basten JA stated at [2] as follows: "[2] First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history."
This analysis has been followed in numerous later cases. See Afoa v McBride [2017] NSWCA 323 at [70].
Neither Ms Anderson nor the general practitioners from Anson Orange Medical Practice were cross-examined in the proceedings. It seems clear from the notes of those practitioners which are relevant, and which are very brief, that the record is likely to be the summary prepared by the health professional. On the one hand, the plaintiff had English as a first language and also had a high standard of literacy which would assist her in conveying her problems. On the other hand, the matters relied upon by the defendants related to psychological issues where the plaintiff appeared to be upset and anxious which may have affected her accurate conveyance of her issues.

[1992] HCA 21

[1986] HCA 73

(1988) 165 CLR 1

(1999) 47 NSWLR 263

(1992) 173 CLR 473

(1990) 169 CLR 638

(2005) 80 ALJR 413

(2000) 54 NSWLR 536

(1985) 59 ALR 529

(2012) 246 CLR 182

(2013) 250 CLR 375

(1985) 2 MVR 74