Chronology of medical and allied assessments
123In the paragraphs that follow, after setting out a review of the initial x-rays, ultrasounds and CT scans taken in hospital, I have also set out a chronological account of the ensuing medical and allied assessments of the plaintiff that have been undertaken by the various treating doctors, medico-legal experts who were retained to examine and assess the plaintiff at the request of the various solicitors for the respective parties, including for the CTP insurer and the Motor Accidents Authority ["MAA"] in the form of the Medical Assessment Service ["MAS"] assessor's reports appointed by the MAA.
124The necessity for review of the historical detail involved in this approach arose from the nature of the defendant's credit attack upon the plaintiff's case. That attack was largely reliant upon summaries of the plaintiff's medical histories prepared by the various medico-legal examiners who had provided reports, concerning the plaintiff's case.
125This approach is also required as a convenient pre-cursor for resolving matters of conflicting medical opinions within the voluminous medical reports and evidence as to the nature and extent of the plaintiff's injuries and disabilities due to the accident.
Various radiological reports tendered by the plaintiff
126The 10 post-accident reports of radiological investigations undertaken of the plaintiff whilst she was at Liverpool Hospital were tendered as part of the plaintiff's evidence bundle: Exhibit "C", pages 144 - 154. These investigations variously comprised x-rays, CT scans, MRI scans and ultrasound scans taken of the plaintiff's cervical, thoracic and lumbar spines, her shoulders, her chest, abdomen and pelvis.
127A review of pages 152 -154 of Exhibit "C" show, that whilst the plaintiff was at Liverpool Hospital on 1 November 2006, various imaging studies were performed on the plaintiff as follows.
(a)At 20:17hrs on 1 November 2006, which was a little over an hour after the accident, a mobile x-ray machine was used in the hospital to take supine x-ray scans of the plaintiff's chest, pelvis and/or sacroiliac joints, perhaps whilst the plaintiff was in the casualty department: page 153 of Exhibit "C". The reporting radiologist, Dr Tew, advised "No focal bony abnormality seem".
(b)At 20:51hrs on 1 November 2006, x-rays were taken of the plaintiff's cervical, thoracic and lumbar spines: page 152 of Exhibit "C". This was ambiguously reported as "No definite acute fracture is identified". It was further observed that "Mild osteophytic lipping is noted in the mid and lower dorsal column". Dr Saks, the reporting radiologist advised "Correlation with the clinical site of concern must be made".
(c)At 21:50hrs on 1 November 2006, 3 different types of CT scans were taken of the plaintiff. These were first, non-contrast CT scans taken of the plaintiff's cervical spine, secondly, non-contrast CT scans taken of the plaintiff's abdomen and pelvis, and thirdly, CT scans taken of the plaintiff 's abdomen and pelvis with contrast.
128It is of some relevance, to the task of making findings as to the nature of the injuries the plaintiff received in the accident, to note that these investigations were carried out in light of the clinical history of the plaintiff having been involved in a motor vehicle accident, with associated upper midline tenderness, with tingling in both arms, as well as a generalised abdominal tenderness. The formal comment on these scans by the reporting radiologist, Dr Archer, was that there were: "No definite findings of acute cervical spine or intra-abdominal traumatic injury".
Dr Rahman - plaintiff's family doctor
129On 5 November 2006, some 4 days after the accident, the plaintiff consulted her general practitioner, Dr Bassel Abdul Rahman, who provided a short historical letter dated 6 December 2007 to the plaintiff's former solicitor.
130That letter, which was tendered by the defendant, referred to Dr Rahman's findings on examination as comprising tenderness over the plaintiff's cervical spine with mild restrictions in neck movements without neurological deficits. Dr Rahman also described tenderness over both humeral heads with restriction of shoulder movements. He described prescribing strong analgesic medications, and noted that the plaintiff had required a cortisone injection for the shoulder, which I infer from the context of the 5th paragraph of Dr Rahman's letter, was to her left shoulder. He also noted that the plaintiff also received some physiotherapy treatment. There was no report of the detail of that treatment.
131Dr Rahman diagnosed the plaintiff as having a whiplash injury and supraspinatus tendonitis of the left shoulder. He predicted a very good prognosis, with the need for further physiotherapy to the neck and shoulder.
132On 9 November 2006, Dr Rahman issued a medical certificate that followed his examination of the plaintiff on 5 November 2006. In that certificate, he stated that he had diagnosed the plaintiff to have sustained a whiplash injury and an injury comprising a muscular lower back strain and a right shoulder strain: Exhibit "1", page 17.
133There were no further letters tendered from Dr Rahman and it is not known whether the plaintiff's present solicitors had asked him to issue further updating letters or reports concerning the plaintiff. Neither party called Dr Rahman to give oral evidence on factual matters concerning history or treatment, however, his patient clinical records for the period up until 2 May 2010 were tendered: Exhibit "6", Tab 9, pages 47 - 75.
Bankstown Women's Health Centre
134On 9 November 2006, which was just 9 days following the accident, the plaintiff attended at the Bankstown Women's Health Centre. The referral of the plaintiff to that centre was made by an officer of the Department of Housing who was processing the plaintiff's application for housing relocation from Villawood to another suburb, which was considered to be possibly safer for her.
135At the time of the plaintiff's attendance at the centre, it was noted that she was "extremely distressed as she explained that her ex-husband had again been released from gaol and was now harassing her". At that time it was also noted that the plaintiff and her children were "extremely frightened and vulnerable as the ex-husband has a long history of extreme violence for which he has been gaoled several times". The report went on to record that the plaintiff had reported that her ex-husband had in the past tried to kill her, and that he had physically attacked the children. As a result, the officer of the Department of Housing recommended the plaintiff be moved from her current housing and to another area as soon as possible: Exhibit "6", Tab 8, pages 45 - 46.
Dr Maniam - treating orthopaedic surgeon
136On 1 December 2006, at the referral of Dr Rahman, the plaintiff was assessed by Dr Vijay Maniam, an orthopaedic surgeon. In his report dated 19 October 2007, Dr Maniam noted the x-rays and ultrasonography that accompanied the plaintiff had findings of significance in the form of osteophytes at the level L3/4, and supraspinatus tendonosis. He did not explain the significance of those findings in terms of aetiology.
137Dr Maniam diagnosed the plaintiff's problems to be a musculo-ligamentous strain of the cervical, thoracic and lumbar spines and traumatic bilateral impingement in the shoulders. At that time his focus for treatment of the plaintiff was her shoulders, and this included prescribing anti-inflammatory medication.
138Neither party called Dr Maniam to give oral evidence on factual matters concerning the history he had taken from the plaintiff or the treatment he had provided, if any.
139Dr Maniam's clinical records for the period December 2006 until 17 January 2011 were tendered: Exhibit "6", Tab 11, pages 76 - 93.
140Dr Maniam's handwritten clinical records are very neatly written but they are in places difficult to decipher. Nevertheless, it is apparent that on the first consultation with the plaintiff, in December 2006, he recorded her symptoms as relating to the neck, the lumbar spine and the left shoulder. Those were observations he made again in February and April 2007.
141On what appears to be 22 February 2007, significantly, Dr Maniam made the handwritten notation "knees ". This suggests at that time Dr Maniam examined both of the plaintiff's knees and found no abnormality or complaints of pain in either of her knees. This note was not the subject of cross-examination or submissions. It is unchallenged evidence which is available for consideration on the timing of onset and causation of the plaintiff's left knee complaints.
142Subsequently, in September 2007, Dr Maniam noted the plaintiff had "sore legs". The copy of his records in Exhibit "6" were incompletely copied in the left margin and suggested that the plaintiff had "married again". This was not a matter that was taken up with the plaintiff in cross-examination. A subsequent side note made by Dr Maniam in August 2010 referred to the fact that the plaintiff was on a single mother's pension. These matters were not reconciled or clarified in the oral evidence. Subsequently, on 15 March 2012, a better copy of that page of Mr Maniam's records was tendered: Exhibit "10". My interpretation of the diagrammatic content of that exhibit revealed the clarification that it was the plaintiff's husband who had remarried, not the plaintiff.
143In November 2007, Dr Maniam recorded that the plaintiff had "pain in both legs" in addition to the previously recorded complaints concerning her neck, shoulder and lumbar spine problems.
144In early 2008, on what appears to be an indecipherable date in January 2008, Dr Maniam recorded the plaintiff's complaints of pain in both knees. I interpret the juxtaposition of the symbols "++" with the reference to the left knee as being an indication that the left knee was worse than the right knee. Dr Maniam ordered an MRI scan of the plaintiff's left knee in March 2008. At that consultation, Dr Maniam prescribed Tramal, Voltaren cream and a left knee support. I interpret Dr Maniam's notes to contain reference to sprained anterior and medial cruciate or collateral ligaments of the plaintiff's left knee.
145Subsequent entries in Dr Maniam's clinical notes make further references to the plaintiff having ongoing left knee problems.
Dr Pierides - occupational medicine consultant - first report
146On 20 June 2007, at the request of the CTP insurer, the plaintiff was examined by Dr Lew Pierides, a consultant in occupational medicine. In his report to the insurer dated 22 June 2007, Dr Pierides recounted a short summary of the events of the accident as the plaintiff having been in a vehicle that was hit as it went through a roundabout, resulting in the vehicle spinning into a power pole, and necessitating the plaintiff being cut out from that vehicle by fire brigade personnel.
147The most remarkable thing about the report of Dr Pierides is that nowhere in the historical section of his report did he record a history from the plaintiff as to the nature and extent of any specific injuries she had sustained at the time of the accident.
148Nevertheless, Dr Pierides went on to consider the plaintiff's complaints of neck pain, shoulder pain, and low back pain. In describing his findings on examination of the plaintiff, Dr Pierides referred to the plaintiff as exhibiting pain behaviours and grimacing when he examined her cervical spine. He also described the plaintiff's efforts at shoulder movements during his examination as being "feeble".
149When Dr Pierides came to address the specific question of "functional findings on examination" as had been asked of him by the CTP insurer, he referred to the absence of any evidence of "significant ongoing injury". He went on to comment: "There was apparent restriction of left shoulder movement but no evidence of ongoing injury. The examination was marred by pain behaviours".
150When Dr Pierides addressed the further question of "[whether] the patient's condition [is] consistent with the alleged injuries and disabilities", he responded by saying: "She no doubt had a significant jarring after the subject accident and would have been in some pain in various areas as a result of the impact and the spinning of the vehicle and the jolt when it hit the power pole. I do believe though that at 8 months post injury, her condition has resolved". That statement requires comparison with a statement made by Dr Pierides in a later report.
151It is not clear as to precisely what areas of the plaintiff's body Dr Pierides had in mind when he was referring to the pain in the above context, and therefore it is not clear as to precisely what the "condition" (which I interpolate to mean injury) was, which he thought had resolved.
152In this first report, Dr Pierides went on the express the view that: "There was a significant degree of embellishment in her presentation". It is not clear from his report as to what he was referring to in justification of this remark, and it therefore remains unexplained, although it is clear that in this context, Dr Pierides was expressing scepticism of the veracity or genuineness of the plaintiff's complaints.
153Although Dr Pierides' report contained an acknowledgement of the Expert Witness Code within Sch 1 of the District Court Rules, which had by then been superseded by the Uniform Civil Procedure Rules 2005, it is plain that his opinion was not compliant with that code because he had not stated the reasons for the opinions he had expressed: Sch 7, cl 5(c) of the Code.
154Furthermore, despite the fact that annexed to the report of Dr Pierides was a signed document entitled "Code of Conduct Annexure", he did not set out in his report a list of the documents which had been provided to him within the "correspondence" letter of instruction by which his report had been commissioned, as was required by cl 4 of that annexed Statement. The few words Dr Pierides had written by hand on that section of the form were almost illegible. I interpret them to read "As per letter" which is of no assistance in identifying exactly what materials Dr Pierides had been given for the purpose of assisting him with conducting his examination of the plaintiff, and for preparing his first report.
155In addition, although Dr Pierides had circled the portion of cl 7(a) of the form of the Code that stated "I have not made any assumptions to arrive at my opinions", that statement was plainly incorrect on reading his report. In contradiction of that statement, examples of some unexplained assumptions made by Dr Pierides included statements such as the plaintiff not having any "significant ongoing injury": (report page 5), as well as his unexplained belief that the plaintiff's condition had resolved 8 months post-injury, notwithstanding her continuing complaints of ongoing symptoms at least in the neck, lower back, left hand, and her shoulder movements: (report pages 2-3), and his stated assumptions that the plaintiff's efforts in compliance with his examination were "feeble", and his unexplained statement that her presentation included a "significant degree of embellishment" (report pages 3 and 5), in circumstances where, in fairness, the maker of such opinions is obliged to explain them, and provide supporting reasons.
156There were no reasons of that character within this first report of Dr Pierides.
157Notwithstanding the fact that the plaintiff's legal representatives did not seek to challenge these opinions expressed by Dr Pierides, including by seeking to cross-examine him, I consider that the content of this first report by Dr Pierides is nevertheless open to a critical analysis to assess what, if any, probative value should be given to this report.
158I will consider and take into account the above matters that I have identified when assessing the medical evidence overall for its reliability and probative value.
Dr Mahony - assessing orthopaedic consultant
159On 20 December 2007, at the request of her former solicitor, the plaintiff was examined by Dr Graeme Mahony, a consultant orthopaedic surgeon. In his report dated 2 January 2008, Dr Mahony summarised the history of the occurrence of the plaintiff's accident as involving a collision to the driver's side rear of the vehicle in which she was a passenger, causing that vehicle to spin and hit a power pole, resulting in the plaintiff feeling dazed.
160Dr Mahony described the plaintiff as having injuries comprising bruising to the frontal portion of her head and to her shoulders, an injury to her neck, radiating to the occipital area and to her shoulders, a numb feeling in her left ring and little fingers, an injury to the upper back and chest, an injury to the lower back radiating to her feet, and a feeling of pins and needles and numbness in her legs.
161At the time of Dr Mahony's examination, which was just over a year post-accident, he recorded the plaintiff's ongoing complaints as being in line with those reported injuries. He also noted that the plaintiff reported being stressed and avoided driving.
162On his examination of the plaintiff, Dr Mahony noted restrictions in the extremes of the plaintiff's neck movements due to guarding, restriction of movement in both shoulders, and guarding of the muscles of the back.
163Dr Mahony reviewed various imaging scans. He noted that an x-ray of the plaintiff's neck taken 5 days after the accident, showed slight narrowing of the intervertebral foramina between C2/3 and C4 on the right side, and between C4/5 and slightly between C5/6 on the left side. He also noted that a CT scan of the plaintiff's cervical spine appeared to show a slight disc bulge at the level C6/7.
164Dr Mahony was of the opinion that the plaintiff had developed symptoms referrable to strains and nerve root irritations of the cervical, thoracic and lumbar spines. He also considered the plaintiff had symptoms of a rotator cuff lesion of the left shoulder, with supraspinatus tendonitis with impingement, and capsulitis of the right shoulder. He also suspected the plaintiff had a right carpal tunnel syndrome.
165On 12 February 2008, Dr Mahony provided some comments on some further imaging scans which had been sent to him by the then solicitor for the plaintiff. He said of an ultrasound report of the plaintiff's left knee taken on 22 January 2008, that it suggested the plaintiff had an injury to the left medial collateral ligament of the left knee and that she had a semi-mebranosis bursitis of the (left) shoulder which he said would confirm the presence of a rotator cuff lesion.
166Dr Mahony could not be called to give evidence to clarify his opinions because he had died before the hearing.
Dr Davis - plaintiff's occupational medicine consultant
167On 3 March 2008, at the request of her former solicitor, the plaintiff was examined by Dr John Davis, a consultant in the field of occupational medicine. In his report dated 10 March 2008, Dr Davis summarised the history of the accident as involving a collision in a roundabout resulting in the plaintiff's vehicle spinning, and a subsequent front end collision with a power pole, followed by the plaintiff experiencing chest pain from the seatbelt, left knee pain from injury, a feeling of numbness in the whole body, and pain in the neck and the back.
168After describing the initial treatment received by the plaintiff, Dr Davis listed a comprehensive range of physical and psychological complaints that had been made to him by the plaintiff.
169Following his physical examination of the plaintiff, Dr Davis recorded his findings of guarding of the right paravertebral muscles of the plaintiff's cervical spine, and tenderness of the inter-spinous ligaments at the levels L4-S1. He also observed the plaintiff had a left-sided antalgic gait.
170Dr Davis diagnosed the plaintiff's injury to have involved the upper and lower facet joints in the cervical and lumbar spines, leading to the development of chronic soft tissue injury, as well as injury to the joint capsules of those areas of the spine. He also identified a tendon injury to the left shoulder and trauma to the left knee. He considered that the plaintiff's injuries were consistent with the history she had given to him. He also observed that the plaintiff had what he described to be an Adjustment to Injury Disorder.
171Dr Davis identified a significant number of work and domestic restrictions for physical activity that adversely affected the plaintiff.
172Dr Davis was not called or required to give oral evidence.
Dr Clark - plaintiff's assessing consultant psychiatrist
173On or about 5 March 2008, at the request of her solicitor, the plaintiff was examined by Dr Thomas Clark, a consultant psychiatrist. In his report dated 5 March 2008, Dr Clark summarised the history of the accident as involving a collision between moving vehicles forcing the plaintiff's vehicle into collision with a power pole, unexpectedly flinging the plaintiff forward by which she banged her head on the windscreen.
174Dr Clark summarised the subsequent history as being that the plaintiff recalled she thought she was about to be killed, and of her being shocked, and had experienced an acute state of panic, following which she was aware of an initially bruised head, some head and neck pain, some left leg pain and swelling of a wrist.
175Dr Clark summarised the plaintiff's ongoing complaints as getting "stressed out", experiencing pain, panic symptoms, palpitations, nightmares, insomnia, nervousness, upset, prone to being startled, shaky, hypervigilance, intrusive recollections of the accident, disturbed sleep patterns with persistent insomnia, night terrors, mood fluctuations and avoidance of driving. He also elicited further complaints of flashbacks, tearfulness and varied concentration.
176Dr Clark's diagnosis was of PTSD and severe depression, leading to the development of what he described as a shock reaction or an Acute Stress Disorder, with a specific phobia for driving, and a Major Depression, according to the DSM-IV-TR formulation. He related these conditions as being directly caused by the accident.
177Dr Clark also gave oral evidence concurrently with other psychiatrists, and I shall also refer to that evidence in due course.
Dr Marsh - MAS Assessor appointed by MAA
178On 29 May 2008, at the request of the MAA, the plaintiff was assessed by Dr Nigel Marsh, a consultant occupational physician. In his report of the same date, Dr Marsh certified that the plaintiff had suffered injury to the neck, mid back, low back and left shoulder. He also found that the plaintiff's right shoulder problems were as a result of referred pain from the neck rather than from a specific injury to the right shoulder. Dr Marsh concluded that these injuries had become static and were unlikely to remit despite treatment.
179Dr Marsh also concluded that the plaintiff exhibited considerable exaggerated pain behaviour and he noted some inconsistencies between his findings and some previous assessments. He gave two examples of this, but obviously had in mind others, but which could not be identified because he only mentioned them in passing as coming from "Other reports on file" and which remained unidentified in his reasons.
180Dr Marsh's MAS certificate of determination did not include any reference to the plaintiff's left knee problems being caused by the motor accident in question. In that regard, at page 7 of his report, Dr Marsh stated that he had been able to persuade the plaintiff to flex her left knee beyond 80 degrees, and he said that he was unable to effectively test her left knee for stability because of the plaintiff's complaints of pain, on any attempted movement.
181As a MAS Assessor, Dr Marsh was not compellable as a witness, and he was not called to give evidence.
Dr Parmegiani - MAS Assessor appointed by MAA - first report
182On 29 May 2008, at the request of the MAA, the plaintiff was assessed by Dr Enrico Parmegiani, a consultant psychiatrist. In his report and certificate of determination dated 19 June 2008, Dr Parmegiani found that the plaintiff's conditions of chronic PTSD and Major Depressive Episode were caused by the motor accident in question. He also found that these conditions had not stabilised at the time of his assessment of the plaintiff.
183In his capacity as a MAS Assessor, Dr Parmegiani was not compellable as a witness, so he was not included in the concurrent psychiatric expert evidence session.
Dr Ishrat Ali - plaintiff's treating psychiatrist
184On 10 September 2008, some 22 months after the accident, at the request of her treating general practitioner Dr Rahman, the plaintiff consulted Dr Ishrat Ali, a consultant psychiatrist, for treatment of her psychological problems. In his 5 March 2009 report to the solicitor for the plaintiff, Dr Ali provided a summarised history as told to him by the plaintiff, in which she said she had been in "a bad accident and her car was written off".
185Dr Ali recorded the plaintiff's psychological symptoms at the time of his first examination of her and stated that these included anxiety, depressed moods, insomnia which at times required medication, episodic crying, irritability, poor concentration and some weight loss, frequent dreams about the accident which were frightening to her, flashbacks to the accident, and of having developed a fear of travelling. He described these symptoms as having their onset since the accident, and fluctuating in their intensity. He also noted the absence of any history of past family psychiatric problems.
186On the basis of his examinations of the plaintiff, which had taken place at frequent clinical intervals over time, Dr Ali's concluded diagnosis was that the plaintiff had a PTSD which was the direct result of the accident. He concluded that there were no other factors to account for her symptoms and he therefore concluded that the accident was directly responsible for the plaintiff's psychological symptoms, which he had recorded.
187Dr Ali was of the view that the plaintiff's ability to carry out her daily domestic activities had been affected by her depression. He also noted that her social life had been badly affected, as had her relationships with significant people in her life.
188Dr Ali was of the opinion that the plaintiff's concentration had also been badly affected, and that she would find it hard to cope with work. He was of the view that the plaintiff's depressive and post-traumatic symptoms had persisted, and would continue indefinitely, including to the point of not being able to handle full-time employment. He also expressed the view that the plaintiff's ability to lead a normal life was significantly impaired, and that she would need constant help. These are matters to which I shall return when making my assessment of the plaintiff's entitlement to damages.
Professor Harris - defendant's orthopaedic consultant - first report
189On 2 December 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Professor Ian Harris, a consultant orthopaedic surgeon. In his report dated 11 December 2008, Professor Harris accepted that it was likely the plaintiff had sustained multiple soft tissue injuries in the accident in question. He excluded the degenerative changes seen in the plaintiff's spine from being accident related. However, in expressing that view, he made no comment on whether those degenerative changes had in any way been affected or aggravated by the trauma of the accident.
190Professor Harris stated that the bursitis in the plaintiff's left shoulder may be accident related, but he excluded the ligamentous injuries to the left knee as being more recent, and not due to the accident of 1 November 2006.
191Professor Harris stated, and it was not challenged, that the plaintiff's current symptoms (which he stated at page 2 of his report to be central lumbar back pain, central posterior neck pain, generalised left shoulder pain, generalised left knee pain and decreased sensation in her left arm) cannot be explained by her injury on 1 November 2006. He did not explain in detail the reasoning that underpinned that statement, which is a matter that goes to the weight of his opinion generally.
192Professor Harris' reasoning for that view appeared to involve the assumption that any injuries sustained at that time would have healed within several weeks or months. That reasoning appears not to differentiate between the entities of frank injury and the quite separate question of whether there are any resultant disabilities that flowed from those injuries.
193Professor Harris was not called to give evidence to explain any aspect of this, or any of his subsequently expressed opinions.
Dr Pierides - defendant's occupational medicine consultant - second report
194On 11 December 2008, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Pierides, the consultant occupational physician. In his second report, which was dated 12 December 2008, Dr Pierides again did not record any history of specific injury suffered by the plaintiff. He referred to the plaintiff's current complaints of back pain, left knee pain and neck pain with radiation into the left hand with reported numbness of the ring and little finger. Later in his report, he also described the plaintiff's restricted left shoulder movements.
195Consistent with his earlier opinion expressed on 22 June 2007, Dr Pierides stated that he did not believe the plaintiff had any ongoing physical injury (which I take to also refer to disability in this context as that was the question that had been asked of him) related to the subject accident. The basis for that opinion was the assumption that it would be reasonable for the plaintiff to have some ongoing effects for some 8 - 12 weeks after the accident due to jarring.
Dr Haik - defendant's psychiatric consultant - first report
196On 3 February 2009, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Robert Haik, a consultant psychiatrist. In his report dated 9 February 2009, Dr Haik stated that the plaintiff's case was an exceptionally difficult one for him to determine from the psychiatric perspective.
197In his first report, Dr Haik adopted what I consider was a sceptical view of the plaintiff's presentation and history. He suspected Mrs Khalil maintained a role of abnormal illness behaviour for reasons unconnected with the litigation.
198There were aspects of Dr Haik's opinion critical of the plaintiff, which required analysis from the standpoint of procedural fairness. That analysis will be undertaken in connection with determining which of the psychiatric opinions should be accepted in this case, and for what reasons.
199Dr Haik drew upon the records of the plaintiff's general practitioner and the hospital records to suggest that the plaintiff was mendacious in her description of her circumstances. Dr Haik also drew upon other material that was the product of his own factual research or understanding in order to base some highly critical remarks concerning the plaintiff's history, without having first given the plaintiff the opportunity to comment on those matters. This raised a question of procedural fairness. The plaintiff's submissions criticised Dr Haik's opinions as being biased against the plaintiff.
200Dr Haik also gave oral evidence concurrently with other psychiatrists, and I shall also refer to and analyse that evidence in due course.
Dr Matalani - plaintiff's assessing occupational medicine consultant
201On 12 March 2009, at the request of her solicitor, the plaintiff was examined by Dr Elias Matalani, a consultant occupational physician. In his report of the same date, Dr Matalani recorded the summarised history of the accident as involving the vehicle in which the plaintiff was travelling being struck on the right by another vehicle, resulting in her vehicle being spun around and then hitting a power pole. It was recorded that the plaintiff was thrown forward and then backwards, hitting her head and left knee in the process, on the dashboard, resulting in pain in the neck and the back, with her whole body aching, and feeling numb.
202In his report, Dr Matalani described the results of investigations as revealing a left supraspinatus tendonitis and impingement in the left shoulder, and minor posterior disc bulges at the levels T10/11 and T11/12, and low grade sprains of the anterior cruciate and medial cruciate ligaments of the left knee.
203Dr Matalani also summarised the plaintiff's ongoing problems relating to the neck, left shoulder and left upper limb, with stiffness in the shoulder and numbness in the left ring and little fingers. He also recorded the history of constant lower back pain with radiation, and pain in the left knee, precipitated by prolonged walking and standing, with symptoms being aggravated by cold weather. He also recorded complaints of disturbed sleep, and difficulty with household duties, and noted the plaintiff was affected by depression.
204Dr Matalani observed the plaintiff to have a slow antalgic gait, with limping favouring the left leg. He observed guarding of the paravertebral muscles and the left trapezius muscles around the region of the neck, and pain and tenderness in the lower spine, with restriction of movement. He noted an inability to squat on account of left knee pain, and left shoulder problems.
205Dr Matalani expressed the opinion that the plaintiff had suffered soft tissue injuries and musculo-ligamentous strains of the neck and back, and a contusion injury to the left knee, together with left shoulder tendonitis and bursitis, with impingement. He related the plaintiff's right shoulder problems to the neck injury. He thought the plaintiff had developed a chronic pain syndrome with a guarded long-term prognosis. He considered that the motor vehicle accident had been a substantial contributing factor to the development of her current disabilities.
206Dr Matalani considered the plaintiff's condition was unlikely to change, and he considered that she was unfit for a range of work and domestic activities.
207Dr Matalani was also called to give oral evidence on the 12th day of the trial as the defendant's representatives had required him for cross-examination on his reports.
208The discernable approach taken by the defendant to the testing of Dr Matalani's evidence appeared to me to raise 7 topics, ranked as to significance, as follows.
209First, the assumption-based nature of the opinions of Dr Matalani was confirmed; secondly, the cross-examiner sought to obtain from Dr Matalani some factual evidence aimed at trying to contradict the factual evidence as was related by the plaintiff; thirdly to seek to identify timing of complaints and what might have been expected to be raised by the plaintiff in connection with her complaints of head, left shoulder and left knee problems; fourthly, the cross-examiner sought concessions from Dr Matalani that the left knee problems were not related to the accident; fifthly, the defendant sought comments from Dr Matalani on some segments of DVD footage taken of the plaintiff's activities; sixthly, Dr Matalani was asked some questions about his views as to the timing of onset of the plaintiff's left shoulder problems, and lastly, confirming the manner in which he had constructed his report.
210On the first topic, in answers to questions put to him at the conclusion of the defendant's cross-examination of him, Dr Matalani confirmed that his opinion was in part dependant upon the matters reported to him by the plaintiff, but he also qualified this by stating that he did not just look at the reported symptoms, but also he looked at the whole picture, which included investigation results, an assessment of the presentation, and the information available to him: T515.25 - T526.30. These were not controversial propositions and hardly needed restatement or confirmation in the context of expert evidence.
211On the second topic, Dr Matalani confirmed the history given by the plaintiff that she had "essentially ... not driven since the accident" because "she was too scared to drive": T490.1 - T490.12. Dr Matalani was unable to indicate from either his report or from his recollection, whether, as a matter of fact, the plaintiff had actually been wearing a knee guard on the day he had examined her: T491.47. These are matters to which I shall return in connection with my credit findings.
212On the third topic, Dr Matalani made the proper concession that it would have been expected that the plaintiff would have reported to the hospital that she had struck her knee on the dashboard of the vehicle in the accident: T495.46. What was absent from the discussion on this point was the timing and dosages of the pain killing medication morphine, and the timing and likely painkilling duration or effect of such medication, considered in conjunction with the timing of the various medical surveys or physical assessments of the plaintiff's condition whilst she was in hospital. There was also an assumption implicit in the line of questioning that the plaintiff did not mention any such problems whilst in hospital.
213On the fourth topic, whilst Dr Matalani agreed that the first recorded report in January 2008 of left knee problems was suggestive of a more recent injury than November 2006, and he would have expected an earlier report of such problems by the plaintiff, significantly, he was not prepared to be dogmatic in expressing a view that there must have been another injury after the subject motor vehicle accident: T496.45 - T498.1.
214On the fifth topic, the defendant sought Dr Matalani's comments on the DVD footage of the plaintiff taken in September 2009 in circumstances where he had last seen her on 12 March 2009. There were obvious logical difficulties and issues of fairness associated with such an exercise. On his examination on 12 March 2009, Dr Matalani had observed the plaintiff to have had what he had described as an antalgic gait which favoured the left leg. He defined antalgic to mean abnormal: T500.2. When this was explored Dr Matalani did not know that the meaning of an antalgic gait included a pain-avoiding gait: Dorland's Illustrated Medical Dictionary, 28th Ed, WB Saunders, 1988, p 90.
215In any event, on 12 March 2009 he had observed the plaintiff walking at the time of his examination and recorded his observation as outlined above. In viewing the DVD taken on 21 August 2009 from 14:54hrs, he stated he had observed a subtle limp with some favouring of the left leg. He was unable to comment on whether the visual images he was shown were distorted by possible distance and lens magnification factors:T502.35 - T502.45.
216In respect of the second segment of DVD footage shown to him from 15:09hrs, Dr Matalani also confirmed the presence of a subtle limp. Dr Matalani agreed with the proposition that this segment, although showing a limp, was "very different" to the manner in which the plaintiff had presented to him on 12 March 2009: T504.12 - T504.40. The logical difficulty with this evidence was taken up with the cross-examiner at T504.49 - T505.10 as follows:
"HIS HONOUR: Mr Fitzsimmons, isn't there a problem with that question. Dr Matalani saw the plaintiff on 12 March 2009, and you're asking him to comment on a visual observation from September 2009 without the usual accompaniment that goes with a medical examination, namely a discussion between doctor and patient, and reactive questions.
FITZSIMMONS: I don't understand what your Honour is saying, I'm sorry.
HIS HONOUR: Very well. We'll leave it until submissions.
FITZSIMMONS: Thank you, your Honour, I will."
217The cross-examiner then sought to make analogies between what Dr Matalani had seen in his consultation with the plaintiff in March 2009 and what he expected in the way of "perhaps to be some deterioration". The evidence on this topic at T508.15 - T509.1 was as follows:
"Q. Doctor, what you were told was that the plaintiff had these particular problems, for example, with ambulating, correct?
A. Yes.
Q. And that after a period of walking, her symptoms were aggravated or made worse, correct?
A. That's correct.
Q. So the position was that you would expect, would you not, given that history as being told to you, that a period of walking of the timeframe that we've seen here, but given the history that she gave to you, you would expect there perhaps to be some deterioration in her ability to walk and ambulate, do you agree?
A. That's correct, yes.
Q. From what you can see from the start of that film to the end, there was no such deterioration, if there was any problem at all, do you agree?
A. There was no deterioration, that's correct.
HIS HONOUR
Q. In relation to that last answer, what questions would you expect you would've asked the plaintiff as to how she felt if you were comparing your observations on the film with your observations from your clinical examination? In other words, what questions would you be seeking to clarify for the purpose of adumbrating upon that opinion?
A. I would have asked her if she had any rest breaks, if she had the opportunity to stop and rest during that walk. Obviously she's been walking for about 25 - the period is 25 minutes, but we really don't know what happen for the whole of the 25 minutes, had - had she had the opportunity to stop, to walk, to sit down, was she in pain? I couldn't see her facial expression, whether she was in pain or not. But of course, yes, some people do walk in pain as well, that would - you'd expect them to limp. But there was no - there was not enough indication on the facial expressions, whether she was in pain or not. And whether she was taking any painkiller at the time, and whether she was wearing any knee support. So they're the number - sort of questions I would have asked."
218Dr Matalani indicated that at the time of his consultation with the plaintiff, he had not enquired of her as to when she had taken her last dose of pain killing medication: T510.15; T511.15.
219On the sixth topic, Dr Matalani stated that he had not obtained from the plaintiff a history of the mechanism by which she had injured her left shoulder but he said he had obtained a history of the car being spun around and of her experience of her pain being everywhere: T513.3. He did not agree with the proposition put by the cross-examiner that if the plaintiff's shoulder had been injured, this would have been likely to have been the subject of complaint because of associated problems of mobilisation. He explained his disagreement on the basis of the complicating factor of there having been an associated neck injury, and because in that context, restricted shoulder movements was a matter of degree: T513.5 - T513.
220The last topic raised with Dr Matalani simply confirmed that when he had examined the plaintiff, he had dictated the notes of history taking and of his findings on examination in her presence, and then he had later dictated the summary of the results on investigations, and had then sat down to gather his thoughts for the dictation of his opinions. None of those events were either controversial or remarkable.
221In reviewing the answers given by Dr Matalani in answer to questions put to him in cross-examination, including the observations he had made of the 3 segments of DVD footage shown to him in court, I do not read his evidence as involving any material change in the opinions he expressed in his report, consistent with his statement to that effect at the commencement of his oral evidence: T489.22.
Dr Parmegiani - MAS Assessor appointed by MAA - second report
222On 7 August 2009, the plaintiff was re-assessed by Dr Parmegiani at the request of the MAA. Dr Parmegiani then issued a further MAS certificate on 20 August 2009, in which he confirmed his assessment that the accident caused the plaintiff to have a PTSD and Secondary Depression.
223Dr Parmegiani considered the plaintiff's description of her emergent "symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder is not inconsistent with the nature of the motor vehicle accident in which she was involved": Exhibit "3", page 249. Dr Parmegiani also found that the severity of the plaintiff's symptoms indicated the presence of a secondary depression in the plaintiff: Exhibit "3", page 249.
224However, Dr Parmegiani expressed some doubts about the genuineness of the plaintiff's presentation, based upon the following factors:
(a)His view that there was a lack of co-relation with the plaintiff's physical presentation at his assessment, with her claims of amotivation, anergy and social isolation. His apparent basis for that conclusion was the plaintiff's prompt responses to his questions without psychomotor retardation, irritability or cognitive dysfunction. How he came to that conclusion through interpreted language at that consultation is not explained in his report;
(b)He thought the plaintiff's reported weight loss of 2kgs per month (which at Exhibit "3", page 248, he deduced to be 100kgs over the 50 months since the accident) was unlikely, given her "current body shape". The metabolic or physical basis for that opinion was not fully explained. He appears to have taken the plaintiff literally, hence his mathematical conclusion;
(c)He doubted the plaintiff's history that she had attended his examination with another person because "this person was never sighted": Exhibit "3", page 249. The plaintiff's history as cited was not inconsistent with a companion being outside, waiting for Dr Parmegiani's consultation to conclude. Dr Parmegiani's comment does not of itself contradict the plaintiff's case that she needed to be accompanied when leaving her home;
(d)He thought the plaintiff's spontaneous smile was contradictory of her claim that she avoided contact with other people, and also contradictory of her reported constant feelings of anger and irritability;
(e)He thought the plaintiff's mobile telephone ring tone, which was that of a crowing rooster, required some complex programming skills unlikely to be found on the telephone of someone suffering from a profound depression: Exhibit "3", page 249. I cannot accept the logic of that statement as it was not established that the plaintiff programmed that ring tone herself.
225In conclusion, at Exhibit "3", pages 249 - 250, Dr Parmegiani stated:
"While I believe that when taken in isolation, each of these factors may not raise significant doubts about the genuineness of the presentation, when added together, they would justify serious questions about the veracity and severity of her symptoms."
226It is plain from page 9 of his report dated 20 August 2009, that Dr Parmegiani was influenced by Dr Haik's report of 9 February 2009, which was critical of the plaintiff and of the case that is sought to be made on her behalf: Exhibit "3", pages 250 - 251.
227Dr Parmegiani nevertheless concluded that the plaintiff should be seen as someone who was pre-disposed to developing a psychiatric illness following the trauma of the accident. In making that conclusion he then stated at pages 251 - 252 of Exhibit "3":
"It is my impression, however, that while those symptoms of psychiatric illness may be present and understandable, the severity of these symptoms and the degree to which they limit her daily function; are inconsistent with the clinical presentation displayed at assessment. Thus while I continue to favour the diagnosis of Post-Traumatic Stress Disorder with some secondary symptoms of Depression, I am much less convinced of the severity of her symptoms, and their impact on the calculation of her whole person psychiatric impairment.
She has been under the care of a psychiatrist for a number of months now, with what she reports as having no benefit whatsoever. In the present circumstances, I do not believe her condition is likely to improve significantly over the next 12 months, and I would therefore consider it stabilised. It is possible that Ms Khalil may benefit from further psychological intervention, and ongoing treatment with antidepressant medications, but given her response so far, her prognosis must be considered as at best, guarded."
228Those views of Dr Parmegiani stand to be evaluated with the other psychiatric and lay evidence. The plaintiff's submissions were critical of Dr Parmegiani's altered stance on the plaintiff's assessment, arguing that his opinion was tainted by Dr Haik's unsatisfactory opinions.
Dr Prior - plaintiff's consultant psychiatrist
229On 21 September 2009, at the request of her solicitor, the plaintiff was examined by Dr Michael Prior, a consultant psychiatrist. In his report, which was dated 23 September 2009, Dr Prior summarised in much greater detail than any other medical report, the history of the accident as provided to him by the plaintiff. He did so in quotation marks as follows:
"... another car hit us; the car spun; we went into a power pole; straight away I was very scared; my legs were numb; there was pain in my body; the kids screaming Mum Mum Mum!!; the ambulance, the police and the fire cut me out of my side; I was in too much pain and I felt I would die; I was a bit dizzy and shaky; my heart was racing; I got very scared; I thought I was dying and I worried about my kids too; the police and the fire brigade took my kids out; the kids were scared and sick".
230Dr Prior reviewed the multiple previous psychiatric diagnoses made before he made his own assessment, and he noted these to have been PTSD, depression and specific phobia for driving. He noted that the plaintiff had been receiving treatment from Dr Ali for about a year and-a-half, initially at fortnightly intervals, then monthly. He also reviewed her history of taking medication, and of having received treatment from a psychologist at Westmead, a Professor Lee, also in conjunction with the post-accident psychological needs of her children. Neither party tendered any reports from Dr Lee (spelt elsewhere as Le).
231Dr Prior recorded the plaintiff's underlying physical symptoms as comprising unremitting and plateaued chronic pain perception in her neck, her left shoulder, left knee and lower back, with temporary exacerbation occurring during cold weather conditions.
232Dr Prior recorded the plaintiff's psychological symptoms as including not being able to do anything, or enjoying her children, because of pain, unhappiness, a pervasively depressed mood, anhedonia, feeling worse at night, impaired concentration and memory, reduced sleep, self-confidence, self-esteem and appetite. He also recorded the plaintiff as having no energy, and always being stressed and nervous, and of having ongoing symptoms of anxiety, intrusive distressing recollections and nightmares on a daily basis, and reduced participation in her usual events. Dr Prior described the plaintiff as having a dysphoric affect.
233Dr Prior's diagnosis was of PTSD with a Co-morbid Major Depressive Disorder caused by the motor vehicle accident. He arrived at that diagnosis from the history, his mental state examination of the plaintiff, his consideration of the relevant diagnostic criteria for the conditions he had identified, and by eliminating the unfulfilled criteria for competing differential diagnoses. In the Whole Person Impairment section of his opinion, Dr Prior justified his conclusions with references to cited quotations from the history provided by the plaintiff, and which were co-related to the required assessment criteria.
234Dr Prior was of the view that the plaintiff was not fit for entry into the workforce for the foreseeable future, and that she would require support in the domestic setting. He thought that on the basis of his examination of her, she was consistent in her presentation, and was not exaggerating. He considered the plaintiff's prognosis to be guarded.
235Dr Prior also gave oral evidence concurrently with other psychiatrists, and I shall also refer to that evidence in due course.
Dr Akkerman - plaintiff's assessing psychiatric consultant - first of 2 reports
236On 29 September 2009, at the request of her solicitor, the plaintiff was examined by Dr Klaas Akkerman, a consultant psychiatrist. This was the first of 2 such consultations and reports by Dr Akkerman. In Dr Akkerman's report of the same date, he recorded a constellation of psychological symptoms recounted to him by the plaintiff. His mental state examination of her revealed she had deficient grooming, her concentration was down, as was her short-term memory, she was irritable, occasionally tearful when describing the accident, she used avoidance, she startled easily, and was hypervigilant. His diagnosis was of PTSD and Major Depression of a severe and continuing nature, impeding her ability to work. His view was that her (psychiatric) prognosis was guarded.
237Dr Akkerman prepared a further report to which I shall refer in its chronological context. Dr Akkerman also gave oral evidence concurrently with other psychiatrists, and I shall also refer to that evidence in due course.
Westmead Traumatic Stress Clinic
238On 23 October 2009, the plaintiff presented to the Traumatic Stress Clinic at what appears to be Westmead Hospital: Exhibit "E". The assessing psychologist noted that the consultation was for her post-trauma adjustment issues following the accident in question. The referral for this consultation was by the psychologist who had been treating the plaintiff's children.
239The assessment noted, amongst other things, that the plaintiff was restless, very anxious, very agitated, showing signs of being depressed, with poor insight and "extremely avoidant".
240The history provided by the plaintiff on this occasion included her experience of nightmares, intrusive memories, anger, frustration, poor sleep, very low mood, and having heard her children crying and screaming following the accident: Exhibit "E", page 1. Incidentally, in describing the events of the accident she had described hitting her head on the dash of the vehicle in which she had been travelling.
241These clinical notes showed that the plaintiff had attended the clinic for a number of visits between 23 October 2009 and 8 December 2009. The notes also recorded that the plaintiff had transportation difficulties, which were to a degree influential on her attendances at the clinic. Despite this, the attending psychologist noted the plaintiff was strongly motivated to pursue treatment. That psychologist noted the plaintiff was "extremely avoidant and currently cannot entertain [the] idea of doing activities currently avoided".
Further commentary in 2009 from Dr Ali at request of plaintiff's solicitor
242On 12 November 2009, Dr Ali prepared a further report in the form of a commentary at the request of the solicitor for the plaintiff. That report was not based upon a specific examination. This report was simply directed at commenting upon the MAS report of Dr Parmegiani. In that regard, Dr Ali noted that it was unclear to him as to how Dr Parmegiani had reached his conclusions to the effect that the plaintiff's presentation at examination was "inconsistent" where Dr Parmegiani's report did not refer to him having carried out any specific testing. Dr Ali's point of emphasis was that nevertheless, Dr Parmegiani had expressed the view that the plaintiff was suffering from PTSD, which was essentially similar to his own view.
243Dr Ali also gave oral evidence concurrently with other psychiatrists, and I shall also refer to that evidence in due course.
Dr Talley - plaintiff's assessing gastroenterology consultant
244On 23 February 2010, at the request of her solicitor, the plaintiff was examined by Dr Nicholas Talley, a consultant gastroenterologist and hepatologist. In his report dated 24 February 2010, Dr Talley confined his comments principally to his own area of specialty.
245Dr Talley summarised the plaintiff's account of the accident with the description that she had been squeezed severely in a car hit from the front, and had to be cut out from the wreckage, and that she had injured her neck, the left side of her body, and her left knee.
246Dr Talley took a history of gastroenterological symptoms of epigastric and retrosternal burning sensation unrelated to postural changes, and expressed the view that he presumed these symptoms, including abdominal cramps and pains, bloating and constipation, were due to the side effects of medications taken by the plaintiff for her reported musculo-skeletal problems, and for her psychological problems. Dr Talley noted the plaintiff looked to him to be a little depressed. From the viewpoint of his special interest in psychogenic pain syndromes, he thought the plaintiff's gastrointestinal problems may well be partly due to her psychiatric state. He considered that her gastrointestinal or other non-psychiatric disabilities would not prevent the plaintiff from working.
247Dr Talley was not called to give oral evidence.
Dr Haik - defendant's psychiatric consultant - second report
248On 1 March 2010, at the request of the solicitor for the defendant, the plaintiff was to be re-examined by Dr Haik, the consultant psychiatrist. The plaintiff had failed to attend that appointed examination.
249However, Dr Haik took the opportunity to provide a commentary report to the solicitor for the defendant regarding the reports of Dr Akkerman, Dr Prior, Dr Parmegiani and Ms MacMaster that had been provided to him for that purpose. In that commentary, without evidence, Dr Haik drew attention to some adversities that he had assumed the plaintiff had encountered in her life, and as a consequence he proposed the following generalised formulation:
"This unfavourable collection of life's obstacles would make almost all who suffer them despondent and glum. It is no wonder that she seeks recompense for the hand that she has been dealt as well as a determination to overwhelm all those who might oppose her goal".
250It must be observed that without having had the opportunity to fairly put that assertion to the plaintiff for her comment, the underlying assumptions for that assertion must remain speculative. Nevertheless, Dr Haik took the approach of using that comment as a basis upon which to maintain an analytical stance of scepticism towards the case the plaintiff sought to make.
Ms MacMaster - defendant's consultant occupational therapist - first report
251On 4 March 2009, at the request of the solicitor for the defendant, the plaintiff was assessed in her home by Ms Margie MacMaster, a consultant occupational therapist. In her report of 6 April 2009, as would be expected, Ms MacMaster directed her comments to recommendations for domestic care rather than medical diagnosis. I will therefore defer analysis of her opinions to the portion of my reasons dealing with the plaintiff's claim for domestic assistance.
252Ms MacMaster was not called to give oral evidence in the proceedings.
Professor Harris - defendant's orthopaedic consultant - second report
253On 23 March 2009, at the request of the solicitor for the defendant, the plaintiff was re-examined by Professor Harris, the consultant orthopaedic surgeon. In his report dated 25 March 2010, Professor Harris confirmed the findings on examination that he had made in his previous report. He also noted that the plaintiff was depressed and anxious. However, he opined that there was no temporal connection between the plaintiff's injury and her current symptoms and disabilities. That view stands to be analysed in conjunction with the other physical evidence.
Dr Pierides - defendant's occupational medicine consultant - third report
254On 25 March 2010, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Pierides, the consultant occupational physician. In his third report which was dated 26 March 2010, Dr Pierides described the plaintiff as having performed sub-optimal movements when she tried to move her shoulders, especially her left shoulder during the course of his examination of her.
255Dr Pierides went on to make further remarks that were critical of the plaintiff. These included statements to the effect that her gait appeared to him to be contrived; that she was a pain focussed woman who was self-limiting in her activities, and that she presented as significantly disabled in the absence of clinical evidence of any significant ongoing disability.
256Dr Pierides had assumed that the accident in question was "mild to moderate". It was not clear from his reports as to from where he had derived this assumption. However, having regard to the matters to which I have referred in my findings concerning the circumstances of the accident, the description "mild to moderate" is of no assistance to determining the nature of the plaintiff's injuries or the duration of her symptoms.
257Dr Pierides re-iterated his earlier expressed views that the plaintiff had recovered from any injuries in the accident (without defining what they were) and that such recovery would have occurred within about 12 weeks from the accident. He described the plaintiff's physical prognosis as excellent.
258It was apparent from the opinions expressed by Dr Pierides, that he had not given much, if any, consideration to any psychological factors that might have influenced the plaintiff's complaints or behaviours. In my view, his opinions have to be read in that light.
Ms MacMaster - defendant's consultant occupational therapist - second report
259On 15 April 2010, at the request of the solicitor for the defendant, the plaintiff was re-assessed in her home by Ms MacMaster, the consultant occupational therapist. As was the case with Ms MacMaster's report of 19 April 2010, Ms MacMaster restricted her comments to matters concerning the claim for domestic assistance and I shall refer to these recommendations in arriving at my damages findings.
Ms Cogger - plaintiff's consultant occupational therapist
260On 12 August 2010, at the request of her solicitor, the plaintiff was examined by Ms Natala Cogger, a consultant occupational therapist. In her report, which was dated 17 September 2010, Ms Cogger undertook assessments of the plaintiff's activities of daily living and provided recommendations for the provision of mechanical aids and for the provision of domestic assistance. She estimated the plaintiff's past and future needs in that regard. Those recommendations will be examined in detail in connection with my assessment of the plaintiff's entitlement to damages.
261In her assessment of the plaintiff, Ms Cogger observed the plaintiff to have demonstrated limitations with activities such as negotiating stairs, squatting, walking, reaching below knee level, repetitive movements of the right (sic) shoulder, left knee, lifting and carrying items, as well as managing repetitive domestic tasks such as vacuuming and mopping. Ms Cogger also recorded the plaintiff's report of continuous chronic pain, and loss of lifestyle, leading to depression. The areas of reported pain as recorded by Ms Cogger were in the plaintiff's neck, left shoulder, low back and left knee.
262Ms Cogger was not called to give oral evidence or to be cross-examined on her recommendations.
Dr McClure - MAS Assessor appointed by MAA
263On 27 July 2010, at the request of the MAA, the plaintiff was assessed by Dr Andrew McClure, a consultant psychiatrist. In his report of the same date, Dr McClure issued his determination that the plaintiff suffered from chronic PTSD in partial remission, with an associated chronic Major Depressive episode, and Pain Disorder, with both psychological factors and a general medical condition. Dr McClure certified and determined that these conditions were caused by the motor vehicle accident in question.
264Dr McClure considered that there was exaggeration and possible malingering in the plaintiff's presentation. He also considered that the plaintiff's level of symptoms and level of impairment to be "reportedly static or minimally fluctuant". Nevertheless he considered that there was little likelihood of remission of the conditions he identified.
265In his capacity as a MAS Assessor, Dr McClure was not compellable as a witness, so he was not included in the concurrent psychiatric expert evidence session.
Dr Pierides - defendant's occupational medicine consultant - fourth report
266On 3 February 2011, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Pierides, the consultant occupational physician. In his fourth report dated 4 February 2011 Dr Pierides stated that the "history of her injury has been noted in [the] 3 previous reports". In fact, contrary to that statement, in those reports, there was no notation made by Dr Pierides of a history of the specific injuries suffered by the plaintiff in the accident.
267In this fourth report, Dr Pierides again referred to his examination of the plaintiff as being "marred" by pain behaviours, and by self-limitation. He referred to the opinion of Dr Haik, which suggested it was understandable (in a non-accident related way) as to why the plaintiff was depressed. He also focussed upon some inconsistencies identified by Ms MacMaster.
268In this report, Dr Pierides expressed the diagnosis that the plaintiff had soft tissue injuries to her cervical spine, some radiation to the left trapezius area and left shoulder, and a low back strain. He reiterated his earlier opinions that all of the plaintiff's injuries had resolved, but had possibly left her with some symptoms after 12 weeks post-accident.
269The consistency of those views, and whether those views as expressed by Dr Pierides correctly reflect the plaintiff's situation, stand to be evaluated in light of the other medical evidence.
Dr Haik - defendant's psychiatric consultant - third report
270On 15 February 2011, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Robert Haik, the consultant psychiatrist. In his report of the same date, Dr Haik reviewed some further medical reports which had been sent to him for comment. He also reiterated his earlier speculative formulation dated 1 March 2010, in which he referred to the plaintiff's despondency and glumness, and he again referred to what he considered to be her quest for recompense.
271In his third report, Dr Haik had identified the plaintiff's situation in life as being sufficient to engender a reactive depression, but he also linked that view to a speculative consideration which he described as the plaintiff's capacity for mendacity. On that basis he concluded that it was implausible that the plaintiff's alleged pain would have caused her depression. He did not explain the basis for that view.
272In expressing that view, Dr Haik had accepted that the plaintiff in fact suffers from a non-biological, that is, a reactive depression, which fits the DSM-IV criteria of Adjustment Disorder with depressed mood.
273However, Dr Haik has suggested that the plaintiff is in effect, pursuing this litigation for secondary gain. That view stands to be evaluated.
Dr Klaas Akkerman - plaintiff's assessing psychiatric consultant - second report
274On 8 February 2011, at the request of her solicitor, the plaintiff was examined by Dr Klaas Akkerman, the psychiatrist. In his report dated 24 February 2011, Dr Akkerman's second assessment of the plaintiff resulted in him confirming his earlier expressed view that the plaintiff was suffering from PTSD and Major Depression. He again expressed the view that it was possible that the plaintiff would never work again. He reiterated his view that her (psychiatric) prognosis was guarded.
275I shall return to an evaluation of the evidence of Dr Akkerman in the context of my findings concerning the plaintiff's ongoing disabilities in the context of comparing the various evidence given concurrently by the other psychiatrists.
Dr Faithfull - plaintiff's assessing orthopaedic consultant
276On 15 February 2011, at the request of her solicitor, the plaintiff was examined by Dr Donald Faithfull, a consultant orthopaedic surgeon. In his report dated 24 February 2011, Dr Faithfull recorded a detailed history of the events of the accident, which included an account of the plaintiff's head and left knee hitting the dashboard of the vehicle. He thought it was more likely that the plaintiff's head had hit the door of the vehicle in the accident.
277Dr Faithfull assessed the plaintiff as having suffered a whiplash injury to the soft tissues of the cervical spine, a seatbelt injury to the left shoulder, probably as a result of the left shoulder hitting the door, and some damage to the articular surface of the left knee comprising the patellar cartilage. On his examination of the plaintiff he noted her ongoing complaints of left knee, left shoulder, cervical and lumbar spine symptoms. Dr Faithfull noted that the plaintiff's current complaints affected her activities such as walking, sitting for prolonged periods, walking up and down steps, and crouching.
278Dr Faithfull expressed the opinion that the plaintiff would have difficulty in working as a florist because that work would require her to be on her feet in a shop, and he said she would have difficulty with this because of her problems in the left knee, and in the lumbar spine.
279Significantly, in his report, Dr Faithfull associated all of the plaintiff's current physical complaints, except the lumbar spine complaints, to the accident of 1 November 2006. His report implied that the lumbar problems may not have been due to the accident in question. That view has to be assessed in light of the evidence as a whole.
280Dr Faithfull gave oral evidence on the 12th day of the trial. The defendant had required his attendance for cross-examination.
281Dr Faithfull confirmed that the history he had obtained was summarised from a conglomeration of what the plaintiff had told him directly, and from what had from time to time been translated by the interpreter.
282Dr Faithfull also confirmed that for the purpose of formulating his opinions he had not been provided with the ambulance report, the hospital notes or the records of the general practitioner. He also confirmed that his opinions were based upon the history that had been provided to him by the plaintiff.
283So far as I could tell, the cross-examination of Dr Faithfull seemed to proceed along what I shall describe, for convenience, as comprising four pathways.
284The first explored the likelihood of the plaintiff having hit her head on the dashboard in the accident, the second explored the likelihood of the plaintiff having injured her left knee in the accident, the third involved a theoretical discussion on the mechanics of the operation of seatbelts and associated injury mechanisms with reference to the complaint of an injury to the plaintiff's lumbar spine, the fourth involved an evaluation of the question of whether the plaintiff had injured her left shoulder in the accident.
285Dr Faithfull stated that he found no inconsistency between the plaintiff's complaints of pain and his findings on his clinical examination of the plaintiff: T485.15.
286On considering the matters raised and discussed in the cross-examination of Dr Faithfull, I do not consider that the opinions expressed in his report were to any material degree traduced, or shown to have been faultily reasoned.
287As will appear from the reasons for my findings on the accident related injuries and disabilities, I found the evidence of Dr Faithfull both helpful and compellingly persuasive, except on the issue of the nature of the plaintiff's complaint of injury to her lumbar spine, a matter to which I shall return in my evaluation of the evidence leading to my findings on the nature and extent of the injuries sustained by the plaintiff in the accident.
288It transpired that Dr Faithfull was unaware that there had been a history of two relevant collisions, a rear-side impact between vehicles and a front impact with a telegraph pole.
289As to the first and second pathways, Dr Faithfull explained that the phenomenon of a dazed and confused state from a head injury may not necessarily be documented in an ambulance report in the absence of unconsciousness: T462.40. Similarly, he explained that if there were no apparent signs of a knee injury, a complaint of a knee pain or injury might in the context, "might come fairly well down in the list and might actually be lost": T463.30.
290Dr Faithfull also explained that the detection of a knee injury in hospital may remain undetected if the patient was laying down and was not up and about in hospital: T463.45. He explained that the subsequent detection of a knee injury by a general practitioner in the ensuing days was in part dependent upon the development of outward signs of injury, such as bruising, and the reporting of such signs, but with the caveat that such matters are not always brought to light in a time-limited consultation available to a general practitioner: T464.5 - T464.30.
291These matters were not taken up with any further evidence from the plaintiff.
292On the question of whether the plaintiff might have had an injury to her head, and whether this had been detected by observable signs, Dr Faithfull explained that sometimes such matters go undetected in a side-on collision involving the temple area, and in the case of females, it may be hidden by long hair: T476.2. Dr Faithfull was not asked questions on the diagnosis and notes comprising the Liverpool Hospital clinical records on this issue.
293Dr Faithfull was not asked to consider the possible effects, if any, or the duration of such effects, of the administration of morphine and other medications by ambulance and hospital staff on the process of seeking to obtain a full or complete pain or injury history from the plaintiff.
294Also on the second pathway, Dr Faithfull was asked to consider the imaging evidence in association with the likely timing of onset of the plaintiff's left knee complaints: T467 - T470. Dr Faithfull was taken to 2 ultrasound reports, the first in time dated 22 January 2008 ordered by Dr Rahman, being Exhibit "4", and the second in time dated 7 February 2008 ordered by Dr Maniam, being Exhibit "8". Dr Faithfull stated that the 7 February 2008 ultrasound findings were consistent with the report of the injury at the time of the accident: T468.35.
295When Dr Faithfull was shown the 22 January 2008 ultrasound report, he agreed that report "is more consistent with it being a more recent injury than an older injury". He later agreed the mention of inflammation on that ultrasound report necessarily defined the injury to the left knee as being suggestive of a more recent in origin than of longstanding origin, particularly as there was a partial tear of the medial collateral ligament: T470.5 - T470.37. Neither the cross-examiner nor the re-examiner ventured any questions seeking clarification of what Dr Faithfull understood by the cross-examiner's expression "more recent than longstanding origin", or whether his expression "more suggestive" meant definitively diagnostic. Dr Faithfull explained that "old" in this context meant more than several months, whereas "recent" meant new or acute. There were no further time frames or estimations suggested, explored or attached to that discussion.
296Dr Faithfull indicated that the MRI taken in March 2008 showed signs suggestive of an old rather than a new or acute injury. He explained that a new injury would be accompanied by oedema and inflammation around the knee, whereas the description of a sprain just meant that there has been some tearing of some ligaments more than several months beforehand, and that tearing had not healed: T468.20 - T468.30.
297As to the third pathway, Dr Faithfull explained that the operation of a seatbelt in motor vehicle accidents involving "whiplash" type injuries means that persons injured in such accidents "rarely, if ever, complain about their lumbar spine" because the seatbelt keeps the trunk straight: T472.40 - T473.2.
298In this context, the following clarification evidence was given at T473.5 - T475.9, and which I set out in full, in view of its significance:
"HIS HONOUR
Q. Just so I understand that passage of your report that you've just been taken to.
A. Yes.
Q. Doctor, at page 2 of your report under the heading of "History", you obtained the history which is summarised, that is, "The plaintiff was a front seat passenger of a sedan which was hit on the right side. She was wearing a seatbelt."
A. Correct.
Q. If one assumes that there are two collisions, one being the one you described and another one being a collision between the vehicle and the pole which followed the first collision, would that have any material bearing on your comment as to the injury to the lumbar spine and the seat belt retention issue?
A. If the seat belt survived the first collision, then one wouldn't expect a lumbar injury.
Q. Doesn't it depend upon the dynamics of forces that are resolved in the first collision and then the second?
A. That's true enough. The car was struck on the right side as I understand it, so she would have been thrown to the left and that's where I thought she - why she had hit her head on the side, rather than on the dash board. The air bags did not deploy which gave me the impression that the accident was not a significant - you know, if it had hit the pole, it does tend, the air bags, if they're just front air bags, tend to deploy if the car hits either a head-on injury or runs into a tree. So that's why I thought the major - I'm just making this up now from what you've said because I didn't realise that it had hit anything else. If the major impact would be the car A hitting car B, and the more minor impact would be car B then hitting a pole, did you say?
Q. Yes.
A. Hitting the pole. So that's why the air bags didn't deploy. Am I explaining myself--
Q. Yes.
FITZSIMMONS
Q. Do I understand your evidence to be that still essentially with either, the trunk should be restrained through the use of a lap-sash seat belt?
A. Yes.
Q. And therefore irrespective of that, you would not expect to see any major lumbar injury?
A. Yes.
Q. Because I think in fact what you say at paragraph 6 of your report, is that you make mention of the fact that the plaintiff claimed that her head hit the dash board and you make a comment that "I think it is likely that her head hit the car door"?
A. Correct.
Q. And you make that comment, not because, given the proper restraint with the lap-sash seat belt that you would not expect, would you, for her head to hit the dash board. Correct?
A. Correct.
HIS HONOUR
Q. The mention of major injury begs the question - does a musculoligamentous injury which I assume is what a whiplash injury to the spine means, classify itself as a major injury or not?
A. It can be or it can be a minor injury. It depends on the extent of the soft tissue injury, and it depends also on the age of the patient. The more rigid the spine is when it jogs backwards and forwards, the more likely you are to get a tear of the ligaments that stabilise the cervical spine. So that's why it's important that, when you look at the X-rays, that you're looking at actually the soft tissues as well as the bone, which sometimes isn't observed.
FITZSIMMONS
Q. But the position is, is it not, that certainly given the restraint by the use of the lap-sash seat belt which you would not expect a head impact with the dash board?
A. Not with the dash board, I wouldn't have thought. Unless, I mean, I don't know about the techniques of how well the sash - lap-sash or the safety belt holds.
Q. But ordinarily, it's for that reason that in your report you are of the view that if there was any--
A. It held.
Q. -- it was likely to be more a side head injury, side door rather, than with the dash board?
A. Correct.
HIS HONOUR
Q. I suppose if the patient was dazed, they wouldn't know what hit them, would they?
A. Well, I don't know whether you have been in a motor vehicle accident, I have actually, it was not my fault of course, but when you think about it afterwards and when particularly the policeman is talking to you, it does take you a little while just to go through exactly what did happen and you're trying to be as accurate as you possibly can, and you are surprised what you think you saw and, in fact, what happened.
Q. Sometimes it's a matter of perception?
A. Yes, yes. Well, I think you probably try to figure out, was it my fault or not. I think that's the first - well, that's the first thing I thought of anyway, even though I was, I must admit, I was actually thrown sideways. The car came at me and I was thrown sideways."
299There were two noteworthy areas within the opinions of Dr Faithfull concerning the question of the extent to which the plaintiff suffered an injury to her spine.
300The first area concerned the plaintiff's cervical injury. Dr Faithfull was of the opinion that the plaintiff had been inadequately investigated regarding her complaint of altered sensation she experienced in her little and ring fingers. Dr Faithfull felt this complaint was possibly derived from the cervical spine: T484.39.
301The second area concerned the basis of Dr Faithfull's belief that the plaintiff had not suffered an injury to her lumbar spine: T484.10. This is a matter to which I shall return in my evaluation of the nature and extent of the plaintiff's injuries on a consideration of the entire range of evidence on this point.
302In the meantime, I record my view that I do not read Dr Faithfull's general discussion on the operation of seatbelts and his evidence at T472.40 - T475.9 to say that it was not possible for the plaintiff to have sustained a soft tissue injury to her lumbar spine in the accident in question.
303As to the fourth pathway, Dr Faithfull agreed in general terms that if someone had pain and difficulty using their shoulder and arm, it would be expected that such problems would be reported in the period immediately after the accident; T477.5 - T477.15. Dr Faithfull went on to explain that this would ordinarily be expected even if the patient was sitting in bed: T477.34. I did not read that general discussion to be particularly definitive to the plaintiff's case concerning her claim of having sustained a shoulder injury.
304It was unfortunate that in the context of the ensuing discussion within the cross-examination, or for that matter re-examination, on the subject of the origins of the plaintiff's shoulder problems, the attention of Dr Faithfull had not been taken to Exhibit "6", Tab 6, page 19. That document reveals that at the accident scene, an ambulance officer had elicited a complaint from the plaintiff of pain in the region of both shoulders, as was recorded in diagrammatic form. In my view this small factual detail is a matter of some importance to determining the origin of the plaintiff's shoulder complaints.
305I have already remarked upon the fact that Dr Faithfull was not asked to consider the timing, dosages and likely duration of the therapeutic effect of those dosages of the pain killing drug morphine on the plaintiff's experience of pain, and the related issue of whether, in the light of those matters, there is a reasonable explanation for the lack of notation of shoulder problems in the hospital clinical notes before the plaintiff discharged herself from hospital the following day.
306Dr Faithfull was asked whether it would surprise him that the plaintiff's right shoulder was mistakenly investigated by MRI scanning, and he said it did not surprise him: T478.31. The plaintiff believed it was a mistake: T88.24. However, the diagram within the ambulance report indicates the right shoulder was also painful. The investigation of the right shoulder either may or may not have been a mistake, as was suggested by the defendant, although the plaintiff believed it to have been a mistake: T88.37.
Professor Harris - defendant's orthopaedic consultant - third report
307On 22 February 2011, at the request of the solicitor for the defendant, the plaintiff was re-examined by Professor Harris, the consultant orthopaedic surgeon. In his report dated 24 February 2011, Professor Harris reiterated his view that there were no underlying physical diagnoses to link the plaintiff's current symptoms, which had not changed, to the injury of 2006.
308Professor Harris expressed the diagnostic comment that the plaintiff's multiple areas of pain were without an attributable underlying pathological diagnosis. In that regard, he stated that as the plaintiff's symptoms had not significantly changed over the last few years, it was unlikely that her symptoms would significantly change in the future.
Ms MacMaster - defendant's consultant occupational therapist - third report
309On 23 February 2011, at the request of the solicitor for the defendant, the plaintiff was re-assessed in her home by Ms MacMaster, the consultant occupational therapist. Again, in her report of 28 February 2011, Ms MacMaster concentrated on the questions associated with the plaintiff's need for domestic assistance. I shall consider her report in the context of an evaluation of the claim for damages for domestic assistance.