Marhaba v Chen [2024] ACTSC 241

1. On 16 June 2016, Ms Rouba Marhaba (the plaintiff) was involved in a car accident involving three vehicles. She has brought a claim in negligence against the owner of the car causing the accident, Mr Zheng Chen, and his third-party insurer (the defendants). A breach of duty of care has been admitted, but liability for the injuries claimed is in issue, as well as any quantum if liability is determined in the plaintiff’s favour. They are the two matters for resolution in this proceeding, with the defendants strenuously contesting the plaintiff’s credit as to whether she suffered any injury at all from the accident, and if so, the extent of that injury and any consequent disabilities sounding in damages in this proceeding.

The accident giving rise to the claim

2. On the day in question, the plaintiff, aged 46, was the driver of a Volkswagen multi-van. She was stopped at traffic lights at the intersection of Kings Avenue and Macquarie Street in Barton, with three of her children in the vehicle. A second vehicle, a Holden Astra, was stopped behind her vehicle at the lights. A third vehicle, a Honda Civic owned by Mr Chen but not driven by him at the time, collided with the rear of the Holden Astra. The force of the impact pushed the Astra forward into the rear of the plaintiff’s van.

The claim

3. The plaintiff claimed that when her vehicle was struck from behind, she was flung forward and then immediately jolted backwards, due to the seat belt restraint. As a result of that motion, she claimed she sustained several injuries. She has sought compensation for injuries to her lower back with referred pain into the right lower limb, neck, head, and right arm.

4. The plaintiff had a pre-existing lower back injury from two motor vehicle accidents in 1991 and 2001. She claimed that it had been aggravated as a result of the accident in June 2016.

5. Neither the plaintiff nor her children, nor any other person involved in the accident, were taken to a hospital by ambulance, and the plaintiff continued driving the vehicle to take her children to school.

6. At the conclusion of the hearing, the disabilities claimed were as follows: (a) Nerve root irritation in the lower back with referred pain into the right leg; (b) Somatic Symptom Disorder; (c) Aggravation of severe depression; (d) Aggravation of poor cognitive functioning; (e) Possible concussion; (f) Headaches / vertigo; (g) Intermittent cervical spine issues.

7. At the time of the accident, the plaintiff had been receiving the single parent pension. A substantial claim for economic loss was ultimately not pressed. The plaintiff’s claim was thus limited to general damages plus interest, past out-of-pocket expenses and ongoing treatment, past domestic assistance plus interest, and future domestic assistance. The total claimed was just under $500,000.

The defendants’ position

8. The defendants denied that the accident caused any injury to the plaintiff, contending that the force of the secondary impact between the second vehicle (the Holden Astra) and plaintiff’s vehicle was minor. Relying on the opinion of Dr Thomas Gibson, a biomechanical engineer, the defendants contended that the force of the impact with the rear of the plaintiff’s van was insufficient to cause any of the injuries claimed.

9. The defendants further contested the extent of the loss claimed, and the need for any medical and domestic assistance attributable to any injury or disability found to have arisen from the accident.

Issue 1: Did the accident cause the plaintiff to suffer the injuries claimed?

10. An admission that there was a failure to exercise reasonable care and skill does not necessarily mean that the plaintiff is entitled to damages. The plaintiff must prove that the negligence caused the injuries, in that it was a “necessary condition of the happening of the harm”: s 45(1) of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). An additional element under that section, being the appropriateness of extending the scope of the person’s liability to the harm so caused, was not in contest here.

11. The court must therefore determine whether the car accident was a necessary condition of the plaintiff’s claimed injuries and disabilities, as set out above. As explained in the reasons that follow, the answer to that question is mixed. There is evidential uncertainty in this case, arising from the plaintiff’s significant pre-existing medical conditions, concerns about whether the plaintiff’s credit and reliability, and conflicting medical opinions.

12. The evidence relevant to assessing whether the accident was a necessary condition of the injuries and disabilities alleged broadly falls into the following three categories: (a) The circumstances of the collision itself, with evidence given by the plaintiff and expert evidence led by the defendant from a biomechanical engineer; (b) Evidence as to the plaintiff’s condition before and after the accident, given by the plaintiff, family members and as contained in medical notes and clinical records; and (c) Expert evidence as to what caused the plaintiff’s physical injuries and the subsequent psychological injury and disabilities alleged.

(a) The circumstances of the collision

13. The plaintiff’s evidence was that she left work to drive the children to school. She was stopped at a set of lights. There was a “huge bang”, and everything “just went forward and then backwards and there was coffee spilt everywhere.” Her son’s phone smashed, “everything was everywhere” and the plaintiff felt “a big jerk” of her body.

14. The plaintiff hit her head. She “felt a big bang” on her head from the impact. She did not know what she hit her head on, only that she felt pain in her back and head. The seatbelt scratched down her collarbone. She then said the pain in her neck “was like a shock up my neck”.

15. When asked to explain what she meant by that, the plaintiff said: …it was blurry and then my head just hurt. It was – I had a huge headache, to the point that I felt sick.

16. This was one early example of the plaintiff giving responses that did not quite match the question that was asked of her.

17. The plaintiff’s account of the force of being jolted by the second vehicle was that it was “very forceful”. It flung one child, who was sitting in the rear of the vehicle on the driver’s side, out of his chair and another child sitting in the front passenger seat felt an “extreme fling”. The plaintiff said she was turned and was facing her daughter in the front seat at the time.

18. Photographs of the plaintiff’s vehicle tendered into evidence show minor denting at the bottom of the back door. The plaintiff reported a number of other concerns to her car repairer. These included broken cupholders, faulty air-conditioning and a faulty radio. Subsequently (in an email dated 5 December 2016) the repairer confirmed that a number of the concerns were not caused by the accident. The air-conditioning issue was caused by an internal short of the blower. The radio was faulty because the fuse had been tampered with.

19. The plaintiff’s son (who was 13 at the time of the accident) also gave consistent evidence as to the circumstances of the collision. He remembered the coffee spilling. He remembered being shoved from behind with “a lot of force” and hurting his shoulder as a result. He remembered the contents in the car were “completely everywhere”. He remembered an ambulance, police and fire truck all attending.

20. The defendant’s evidence of the force of the collision was set out in an expert biomechanical engineering report dated 13 May 2022, prepared by Dr Thomas Gibson for the defendants. Dr Gibson reported on the physical mechanisms of the accident, from an examination of photographs of each of the vehicles involved in the collision post-accident.

21. A material feature of Dr Gibson’s report was the fact that the front two vehicles were stationary at the point they were hit from the rear, and that none of the frontal airbags fitted deployed in any of the vehicles. From that fact, Dr Gibson inferred the force of impact as follows: (a) For the Honda Civic, it underwent a Delta V or change in velocity in the collision of less than 20 km/h to 30 km/h; (b) For the stationary Holden Astra, a Delta V in the collision fell within a range of between 7.5 km/h and 12.4 km/h; and (c) For the stationary Volkswagen van, assuming an approximate mass of the vehicle plus the estimated weight of the 4 occupants = 2562kg, and the combined mass of the Holden Astra and Honda Civic of 2734kg, the Delta V was within a range of 3.75km/h and 6.2km/h.

22. Dr Gibson considered that at a higher impact speed than this, it was likely that the frontal airbags would have deployed in the Honda Civic (and they did not). Further, the estimates were consistent with the minor damage he observed to the plaintiff’s van from the photos, although he did acknowledge that the fitting of a towbar on the van – a strong structural element which projected “quite a long way from the back of the van” – may have reduced the damage to the body of the vehicle.

23. Having set out the medical evidence and statistical studies on which he based his opinion, Dr Gibson’s conclusion was: For cases of persisting whiplash associated pain (longer than one month duration), it is generally agreed that the velocity change in the collision of at least 10 km/h, with peak accelerations of greater than 5 g is required. The vehicle damage and crash analysis indicates that these conditions are not met in this collision – the crash severity for the occupants of the Volkswagen van was insufficient to cause the claimed injury.

24. I have not found it necessary to make a finding as to the precise speed at which the first defendant’s car was travelling at the time of impact, nor the change in velocity or force of the impact. I accept that on any view, this was a low-speed collision with a low impact on the plaintiff’s vehicle.

25. I also accept that the low speed at which the crash occurred made it unlikely that any long-term injury may result. However, Dr Gibson accepted under cross-examination that, while it was unlikely that any long-term injury may result from a velocity change of under 10 km per hour, there were degrees of probability involved. Accordingly, although in the circumstances of the collision (low impact), any severe physical injury to the plaintiff’s head, neck or back was unlikely, it is not the case that no injury at all was possible, particularly if the plaintiff had residual symptoms from a previous initial trauma and a low-level chronic pain condition prior to the accident. That matter is addressed next.

(b) The plaintiff’s condition before and after the accident Before the accident

26. The plaintiff had suffered a prior back injury from a motor vehicle accident in 1991 and another motor vehicle accident in around 2001. Dr Gautam Khurana, a neurosurgeon, notes the plaintiff’s records from the Woden Valley Hospital Emergency Department in 1992 reported that the plaintiff was “pushed by a security guard, twisted her back” and “developed shooting pain radiating… back… numbness… tingling in R leg”. An examination by a medical officer found “tenderness over the lumbosacral spine” and “tenderness over the right sacroiliac joint” from that trauma. She reported to the hospital again in October 1992 complaining of pain in her back, right arm and shoulder and her neck. Copies of the plaintiff’s records from 1992 were not tendered in evidence.

27. She acknowledged that she had a little bit of back pain prior to the accident in 2016. However, she believed that she was “really good” and that there was nothing she could not do. She also considered her psychological health to be good.

28. The general practitioner (GP) clinic notes indicate that that plaintiff complained of constant pain in her neck and right hip in September 2002, and that she was unable to sleep due to the pain.

29. In October 2002, the GP notes record that the plaintiff experienced multiple episodes, over several weeks of tingling and numbness lasting for a few minutes in both legs, particularly her right leg, and in her fingertips in both hands. The plaintiff also reported pain in the right side of her neck, and that she was unable to squat and unable to get up from a kneeling position without assistance.

30. A letter dated 4 October 2002 from the plaintiff’s GP to Dr Colin Andrews, a neurologist, confirms that the plaintiff had at least a 12-month history of pain in her neck and right hip, and weaknesses in her lower limbs, with difficulty lifting her legs off her bed.

31. In a subsequent GP record dated 31 October 2002, the plaintiff reported that she had injured her neck, back and knees in the 2001 accident, and subsequently fell into depression and avoided getting her driver’s licence. The plaintiff initially attributed her symptoms to her pregnancy, but subsequently determined it was not the main cause and sought ongoing treatment for her symptoms.

32. In April 2003, again there is a record that the plaintiff was taking Valium to assist with sleep.

33. There is a detailed report written by Dr Brenda Masters (one of the plaintiff’s treating GPs) to an insurance claims officer dated 30 March 2004. It refers to the plaintiff having experienced back and neck pain following a motor vehicle accident 1.5 years prior. Mention was also made of an accident 10 years prior. The report includes the following (emphasis added): 4. Initial symptoms: Roubi stated that she had constant pain in her neck, low back and right hip which was interfering with sleep. There was a heavy sensation in her legs and occasional tingling in the legs. Roubi also described irritability, tiredness, muscle tension and flashbacks to the accident. She had been reluctant to resume driving a vehicle. Roubi related that this had been consequent to an MVA 18 months previously … Roubi had actually attributed her increasing back and neck symptoms to her last pregnancy, the pregnancy having taken up most of 2001, and had only presented for management when she realised that this was probably not the case some 8 months after the baby was born. Investigations conducted by us and the specialist include CT scan of lumbar and cervical spine (normal) and SPECT bone scan of cervical and lumbar spine (normal). Diagnosis was of probable facet joint inflammation in the cervical area, muscle spasm in cervical and lumbar region, and mood disturbance. This is consistent with having been sustained in the MVA. 5. I have no way of telling whether the injuries are an exacerbation or a new injury. Her history suggests that the symptoms were much more significant in the 18 months following the index MVA, and hence probably attributable to that.

34. I have set out that medical record in 2004 for three reasons. The first is to show the full variety of symptoms suffered by the plaintiff in relation to the first motor vehicle accident. It will be seen that there is a significant overlap with the symptoms claimed to have arisen as a result of the accident in 2016. The second aspect of significance is that after the motor vehicle accident in 2001, the plaintiff had a CT scan of her lumbar and cervical spine which was normal. The third point of relevance is that even in 2004 when the report was written, it was very difficult to say whether the injuries were an exacerbation or a new injury.

35. In March 2010, the plaintiff’s GP records indicate that she was prescribed Stemetil underneath which the following note appears “vertigo: benign positional vertigo”.

36. In April 2010, the plaintiff fell over a sign at a shopfront and injured her right foot and right knee.

37. In August 2012, the GP records indicate the plaintiff having an encounter with police which left the plaintiff “traumatised and upset”, with poor sleep and nausea. She was again prescribed with Valium in the short term as a sleep aid and Maxolon for her nausea.

38. A medical certificate around that time refers to the plaintiff having complained of a swollen painful right wrist and painful elbow. The certificate was dated 3 September 2013 but from the contents of the document, I infer that the correct date was in fact 3 September 2012.

39. In September and October 2012 there are records of the plaintiff being prescribed the antidepressant Efexor, and that after a month, such medication was “not doing anything”. The plaintiff was still feeling teary and irritable. A medical certificate dated 4 September 2012 confirmed that the plaintiff was suffering from a “reactive generalised anxiety/depressive disorder”.

40. In October 2012, the notes record an appointment with a psychologist and a referral for a “MHCP”, which I infer was a mental health care plan.

After the accident

41. After the accident, the plaintiff’s evidence was to the following effect: (a) Her neck, lower back, right leg and right elbow were injured in the motor vehicle accident; (b) She sustained scratches on her collarbone and bruises to her back, which subsided. However, her back pain got worse; (c) Her ability to walk properly deteriorated and occasionally she felt like she was “walking on a waterbed”. She would have to sit down and try and get her balance right, and this got worse; (d) Her legs would at times become numb and she would get a pins and needles sensation; (e) She suffered headaches. There were times when she could not get out of bed because of her headaches and neck pain, and the numbness in her leg; (f) Her ability to concentrate suffered; (g) Her vertigo did not get better, and she ended up being taken to hospital following symptoms of dizziness, vertigo, and nausea. Medical records disclose this occurred on three occasions between 2017 to 2019; (h) She had an issue with numbness in her elbow and her middle finger on her right hand and ended up seeing a neurologist, Dr Andrew Hughes, at Canberra Hospital. Ultimately, she saw a nerve specialist; (i) She attended Neurospace for specialised physiotherapy for patients who had suffered trauma to the head. She has had physiotherapy on a weekly basis, except for the occasional appointments she missed; (j) She has acupuncture on her lower back, legs and neck; (k) She saw a psychologist; (l) She takes Endone and Nurofen Plus (for pain) and Brufen (for anti-inflammatory purposes). She also takes Valium because she has severe insomnia and now gets quite panicky when she never used to before; (m) She uses Painaway and Voltaren cream to assist with the pain in her lower back and neck, as well as receiving in the past 4 or 5 cortisone injections in her back to help her through the pain. She described that as a “band-aid” solution;

42. Members of the plaintiff’s family also gave evidence, including the plaintiff’s mother and two of her children. The plaintiff’s son referred to the plaintiff suffering “a complete decline in her mental and physical health”. She had a loss of function in her ability to move and complained of lower back pain. He would see anti-inflammatory and pain relief medication around the house all the time. He felt like his mother tried to maintain a strong front and “be the mum that she once was”. He observed his mother limping consistently. Some days she would be bedridden, other days she could walk. There were situations where he would carry his mother. He observed his mother’s mental health deteriorate, although not immediately following the accident. He saw that the pain from his mother’s physical condition took its toll on her mentally.

43. The plaintiff’s eldest daughter confirmed that she was not involved in the accident, but she did live in the family home at the time and observed her mother’s health change following the accident in June 2016. She referred to her mother’s injuries as the result that the plaintiff’s physical health was constantly “up and down”. The daughter referred to her mother’s lower back pain, headaches, nausea and pins and needles in her legs. She was unsure what pain her mother suffered before the accident. Although the witness’ memory on the precise timing was challenged under cross-examination, she confirmed that anything noticeable and that actually affected the plaintiff’s life, particularly insofar as it impacted her children, was after the accident, and was close in timing to the accident. In terms of observations about her mother’s good and bad days, her evidence was broadly consistent with that of her brother. I accept the witness’ evidence.

44. In terms of the medical records for the dates following the accident, the summary below details the records that have some bearing on either the expert opinions given, or the factual findings to be made.

45. On 27 June 2016, the GP records contain a record relevant to the accident under the heading “History”: involved in car accident - 16/6/16 - driver - stationary at traffic - hit from behind -- high speed --- ongoing neck pain and headache -- seen at scene by ambulance --- seat belt -- also sore right knee and right elbow

46. In August 2016, the GP notes record a request for “another referral for radiology” as there were “ongoing symptoms since accident”.

47. CT scans of the plaintiff’s brain and cervical spine were carried out on 29 August 2016. The scan of the brain showed no abnormalities. The CT scan of the cervical spine showed some disc degenerative changes particularly at the C4/5 level, but no evidence of any disc protrusion.

48. In October 2016, the GP notes record “ongoing headache and neck pain and difficulty sleeping”, that the plaintiff was seeing a chiropractor and that she had been referred for physiotherapy. The plaintiff was prescribed Stilnox to assist with her insomnia.

49. The physiotherapist referral records that the plaintiff “has persistent headache and neck pain since an MVA on the 16/6/16”.

50. On 3 January 2017, the GP notes record the following: ongoing lower back [pain] and headaches - since MVA - tender lower lumbar spine pain on slr bilaterally to 50 for ct will include brain scan as well as [ongoing] headaches - for mobic and panadeine forte

51. This record is the first clinical note referring to any back pain after the accident. The plaintiff believed that there were records of her attending a physiotherapist in Kingston before that date which she thought would have noted the back pain, but those records (if they existed) were not in evidence. The plaintiff’s evidence about any lack of report of such symptoms to her GP was to the effect that she was experiencing low level pain, which she was hoping would settle. She was not so concerned about herself in the period following the accident as she was attending to her other children who were involved, and her son in particular, whose shoulder was hurt. However, when it did not improve, her condition reached a point where she decided to do something about it and see a doctor.

52. She underwent CT scans of her brain and lumbar spine the same day. Again, no abnormalities were recorded by the CT scan of the plaintiff’s brain. The CT scan of the plaintiff’s lumbar spine reported as follows: …At L3/4, there is a posterior osteophyte disc complex on the right side impinging exiting nerve root. At L4/5 and L5/S1, minor central posterior disc bulging not impinging exiting nerve root. Facet joints articulate normally. …

53. That CT scan of the lumbar spine on 3 January 2017 is significant for the consideration of the expert evidence. Dr Pillemer (whose evidence is discussed below) described the results of this CT scan as suggesting a “right sided disc osteophyte complex at the L3/4 level and minor bulging at the lower two lumbar levels.” The scan records nerve root impingement at the L3/4 level, but it also records degeneration at that level, in the form of an osteophyte disc complex. The scan did not indicate any nerve root impingement at the L4/5 and L5/S1 level.

54. On 25 July 2017, the plaintiff attended the Canberra Hospital emergency department with “intermittent episodes [of] dizziness & nausea” and “pain [in her] left side neck and shoulder” following an “MVA 1 year ago” where she “hit [her] head on front right pillar”.

55. This was the first time after the subject accident that the plaintiff had reported to any medical professional that she was suffering dizziness.

56. On 31 August 2017, the plaintiff had a CT scan of her cervical spine. The scan showed degeneration, particularly at the C4/5 and C5/6 level, more prominently on the right, with “bilateral exit foraminal stenosis”.

57. On 6 February 2018, she was hospitalised for three days, reporting intermittent dizziness, nausea and vomiting associated with vertigo the night before. The notes also report her vertigo as being “exacerbated by movement” and her gait as having “poor stability” and “unsteady”. An MRI scan of her brain on 8 February 2018 showed no unusual pathology.

58. On 2 March 2018, the plaintiff had an MRI of her cervical spine. The reason for the examination was “Recurrent neck pain since MVA 2016”. The report recorded: IMPRESSION: Loss of the cervical lordosis which may relate to muscle spasm. Multilevel degenerative changes from C3 to C6, with small disc osteophyte complexes. No impingement of the exiting nerve roots seen.

59. On 22 August 2018, Dr Michael Halmagyi of the Institute of Clinical Neurosciences and Royal Prince Alfred Hospital reported to Dr Hughes: …It is clear that she is having spontaneous vertigo attacks. Clinically there is no abnormality today, …The brain and spine are normal. Despite the negative findings, intermittent vertigo in a healthy young woman can only be due to BPV, migraine or Menieres. …

60. The reference to BPV appears to be shorthand for benign positional vertigo.

61. On 16 January 2019, the plaintiff attended the Canberra Hospital emergency department again after she collapsed from severe dizziness and vertigo.

62. On 31 January 2019, the plaintiff was referred to a psychologist for management of “PTSD related anxiety”. The GP referral states: …She was in an MVA in 2016 and suffered some trauma with [this]. She has had ongoing concerns from a physical perspective but she also has started with panic attacks and anxiety which she feels are related to the MVA. …

63. On 27 March 2020, the plaintiff had an MRI of her lumbar spine. In relation to the L3/4 level, the report recorded: Canal is patent. Mild bilateral facet joint arthropathy. Neuroforaminal exits are patent bilaterally.

64. I have interpreted that as meaning that there was mild arthritis in the joint but no nerve impingement at the L3/4 level. The exits were unobstructed. I have inferred that from the focus of the report’s conclusion being at the L5/S1 level. That conclusion recorded as follows: There is lumbar spondylosis with disc change as described above and possible abutment of the traversing bilateral S1 nerve roots at the lateral recesses. There is also mild bilateral L5/S1 neuroforaminal exit narrowing with possible abutment of the exiting right L5 nerve root.

65. Assisted by the expert evidence discussed below, I have taken from that conclusion that as at March 2020, there was degenerative change in the lumbar spine evident, as well as possible nerve root impingement at the L5/S1 level.

66. On 20 April 2020, the plaintiff saw Dr Romil Jain, a pain specialist, who referred to a recent MRI scan showing L5/S1 narrowing and L4/5 degenerative changes. The report refers to pain in the lower lumbar region which is a “constant stabbing type of pain…exacerbated with shooting pain.” The report also referred to radiation from the lower back to the right leg, with no reported weakness but some pins and needles on both feet. Heat packs and physiotherapy were reported to give the plaintiff some pain relief.

67. On 20 June 2022, the plaintiff underwent a bone and SPECT-CT scan in relation to her spine. The report indicated mild degeneration in the L5/S1 junction and mild osteoarthritis in the right sacroiliac joint.

68. On 12 August 2022, a further MRI of the lumbar spine was conducted. At the L3/4 level, the report indicated that there were “fatty modic type 2 changes” unchanged from the previous study in 2020, and no nerve root impingement (which was a different result from the CT scan of 3 January 2017). At the L4/5 level, moderate facet hypertrophy was identified, unchanged from the previous scan. At the L5/S1 level, “no nerve root impingement was identified”, but mild facet hypertrophy was identified.

(c) Expert medical evidence

69. The plaintiff’s medical experts were: (a) Dr Roger Pillemer, orthopaedic surgeon; (b) Professor Bruce Stevens, clinical and forensic psychologist; and (c) Mr Thomas Sutton, neuropsychologist.

70. The defendants’ medical experts were: (a) Dr Kalesh Seevnarain, occupational physician; (b) Dr Gautam Khurana, neurosurgeon; and (c) Associate Professor Abdul Khalid, psychiatrist.

71. The medical evidence dealt with the plaintiff’s back and leg pain, the vertigo, dizziness and headaches, and the psychological disabilities. I will deal with them in that order.

Lower back pain radiating to right leg

72. Dr Pillemer prepared a report dated 6 July 2020. His view was that the accident had aggravated a pre-existing lower back condition. He based that view in part on the history of the plaintiff’s lower back symptoms following the 1991 and 2001 car accidents, and the understanding that the symptoms from those accidents had settled completely by the time the subject accident occurred.

73. However, Dr Pillemer did note in his report that there were no reports of lower back pain to the plaintiff’s GP on either 27 June 2016 or 7 October 2016, and he agreed in cross-examination that if there was in fact no lower back pain for a period of 6 and a half months following the 2016 accident (reflected in the lack of any report of such pain until January 2017), then that was not consistent with the 2016 accident aggravating the plaintiff’s pre-existing susceptibility or condition.

74. Further, Dr Pillemer noted that the CT scans carried out, on 3 January 2017 for the lumbar spine and on 31 August 2017 for the cervical spine, identified degenerative changes. Under cross-examination, Dr Pillemer accepted that the degeneration and the pre-existing history of 25 years of lower back symptoms would explain the emergence of back pain in 2017, subject to one qualification. Dr Pillemer considered that there was clinical evidence of nerve root involvement (irritation), that is radiculopathy, which would almost certainly be a change from the plaintiff’s condition prior to 2016. However, Dr Pillemer accepted, again, that if there were no symptoms post-June 2016 to January 2017, he would have considerable difficulty in relating that problem with her back to the motor vehicle accident in 2016.

75. Dr Pillemer further accepted that if the onset of lower back pain and radiculopathy was accident-related or trauma-related (as opposed to those symptoms being related to degeneration), he would have expected to see some significant exacerbation of lower back pain contemporaneous with the accident.

76. Dr Seevnarain prepared a report dated 13 May 2021 which similarly diagnosed “Chronic degenerative changes of the cervical and lumbar spine.” His view was that the plaintiff’s symptoms were inconsistent with any injury she would have sustained from the subject accident, as any such injuries would have been largely musculoskeletal in nature with her present symptoms being inconsistent with that type of injury. However, he accepted in cross-examination that a nerve root irritation would not necessarily show on a CT scan, and that an MRI scan was probably a better diagnostic tool. The significance of that evidence for me was that any nerve impingement in the lumbar spine may not have been visible on the CT scan of the lumbar spine that was taken in 2017.

77. Dr Khurana’s opinion was contained in a report dated 4 August 2021. He expressly confirmed that he was in overall independent agreement with Dr Seevnarain. His summary and assessment was as follows (emphasis in original): … [The plaintiff] identified her lower back as the main area of her symptomatology at this time. There were features of facetogenic lower back pain, and some right radicular features, and I have reviewed her imaging, that includes MRIs of the lumbar spine, CTs of the lumbar and cervical spine, and the recent whole-body bone scan. The imaging shows longstanding multilevel cervical, thoracic and lumbar spondylosis, lumbar scoliosis, right SIJ sacroiliitis, and a chronic (pre-existing) right L5/S1 lateral disc-osteophyte that is compressing the exiting right L5 nerve root. There is some remote past history, from the records, of an episode of benign positional vertigo (2010) and a few episodes (early 1990s) of low back and lower limb symptoms including right sciatica (falls/push-over incidents, MVA). Had the lumbar and right sciatic symptomatology been document at or close to the day of the subject MVA of 2016, I would have opined that the MVA probably aggravated the pre-existing pathology at right L5/S1. However, the first mention by the GP (of any documentation) of lower back pain appears to be around 5 months after the MVA. Further, the presence of inconsistent documented history, variable examination findings between specialists, and a plethora of symptoms that are difficult to explain following a rear-ending described as being associated with “minor damage” to the vehicles, makes it improbable that the subject MVA has caused any physical injury. I am therefore in independent agreement with the occupational physician [Dr Seevnarain] …

78. Dr Khurana diagnosed the plaintiff as having chronic pain syndrome.

79. He was clearly sceptical of the plaintiff’s presentation, noting that she appeared to have a normal gait and pace when she walked into the clinic, but then adopted a limping gait which was slow and hobbling when she was in the consulting room. Under cross-examination, Dr Khurana confirmed the importance of the temporal connection between the symptoms and the motor vehicle accident. He considered that, based on his 20 years’ experience in dealing with trauma from motor vehicle accidents, in a minor motor vehicle accident, he would have expected any symptoms the plaintiff had to have resolved within 6 weeks from the accident. If there was a complaint of significant back pain shortly after the accident, that may cause him to consider that there had been a reaggravation of the L5/S1 pathology, but he did not accept that to be the case on the sole basis of a self-report from the plaintiff (well after the accident had occurred).

Vertigo, dizziness, and headaches

80. The medical reports variously noted the plaintiff’s earlier episode of vertigo in 2010. Dr Seevnarain noted that her first complaint to her GP in relation to vertigo was around 18 months after the subject accident, leading him to conclude that there was no specific aetiology for the condition.

81. Dr Sutton considered it to be possible that the plaintiff suffered a mild concussion at the time of her accident, in striking her head against a door pillar and then feeling nauseous. However, he considered that any concussion of such a type would have resolved within 5 to 10 days. There was no objective evidence for a traumatic brain injury.

82. There was otherwise no medical evidence linking the plaintiff’s episodes of vertigo and dizziness to anything related to the accident in 2016.

Psychological conditions

83. The cognitive difficulties of the plaintiff were evident to a number of experts, but the issue is of most significance in relation to the plaintiff’s claimed psychological issues. Both psychologists for the plaintiff, Professor Stevens and Mr Sutton, recorded the difficulties in obtaining responses from the plaintiff, with Mr Sutton indicating that the plaintiff’s cognition in terms of “memory, concentration, thinking [and] processing speed” (her ability to formulate responses) was worse than 99 percent of the adult population. As discussed in cross-examination, that opinion and statistic included people with severe brain injury.

84. Mr Sutton’s report contained the following opinion: … [the plaintiff’s] current poor cognitive function will be most likely due to a combination of pre-existing lowered verbal capacities, emotional/psychiatric deterioration (especially depression), regression to a dependent state as a psychological defence, subjective (non-exaggerated) pain, sedating medications, poor sleep, and mild exaggeration. It is not due to a traumatic brain injury.

85. Mr Sutton was of the further view that the accident had aggravated her pre-existing depressive and anxious disorders, estimating that the accident contributed 30% to her current condition, and that whilst she did not suffer a brain injury, her psychological impairments did contribute to her lowered cognitive abilities. In relation to the impact of the accident on her cognitive dysfunctions, his estimate was of a 40% contribution.

86. Professor Stevens’ report was dated 12 March 2020, and he was also cross-examined. His opinion was that the plaintiff was exaggerating her pain, but he accepted the report of pain itself as genuine. Having performed validity testing, his view was that the plaintiff had a bias towards over-reporting, or over-focusing, on negative symptoms.

87. Professor Stevens initially diagnosed the plaintiff as having Post-Traumatic Stress Disorder (PTSD), moderate somatic symptom disorder with predominant pain and major depressive disorder recurrent with moderate symptoms. He confirmed that he did not have the independent history of the motor vehicle accident or of any psychological history for the plaintiff at the time he prepared his report, and further agreed that a minor car accident would not fit with a diagnosis of PTSD. That disability was not ultimately pressed.

88. In relation to somatic symptom disorder said to be referable to the accident, that diagnosis depended upon there being a physical change in the plaintiff’s symptoms, different from symptoms the plaintiff had suffered from the previous 25 years. Professor Stevens fairly accepted that the medical cause of the plaintiff’s pain was a matter for the orthopaedic surgeons.

89. In relation to the major depressive disorder, Professor Stevens recognised in his report that the plaintiff possibly had depression after the first accident, from which she improved but it took many years. His view was that the plaintiff was “highly vulnerable to reinjury in the second MVA”, going on to state: 8. There is no question that the second MVA caused a re-injury for [the plaintiff]. … It is clear that her present impairment is largely due to the second MVA. 9. … I think she still had residual symptoms from her initial trauma and certainly a low-level chronic pain condition. I think if the second had not occurred she may have continued to slowly improve, but unfortunately the second MVA aggravated her condition and seems to have resulted in even worse condition than that after the first MVA.

90. Again, Professor Stevens did not have any medical material as to the plaintiff’s psychological history pre-dating the accident in 2016. For example, he does not appear to have had the 2012 records where there was reference to the plaintiff having a reactive generalised anxiety/depressive disorder, for which the plaintiff was prescribed Efexor.

91. The defendant’s expert psychiatrist, Associate Professor Khalid, supported Dr Stevens’ diagnosis of a somatic symptom disorder with predominant pain in relation to the accident in his report dated 21 April 2022. However, he indicated that the plaintiff’s chronic adjustment disorder with mixed anxiety and depressed mood started at least in 2012, exacerbated after separation from her husband and perpetuated by her family and financial circumstances. He said in his report that “I do not consider that her chronic adjustment disorder is significantly related to the motor vehicle accident on 16 June 2016.”

Findings on causation

92. The above evidence has been set out in some detail with a view to explaining the uncertainty and complexity that arises in the plaintiff’s case. The injuries claimed have been dealt with in three groups.

Lower back / neck injuries

93. There is evidence of both a pre-existing lower back injury with symptoms of radiculopathy into the right leg, which various medical professionals say had not resolved as at the date of the accident.

94. There is also evidence of a degenerative condition in the plaintiff’s cervical spine and lower lumbar region. That was present in the CT scan of the cervical spine taken in August 2016, as well as the CT scan of the lumbar spine in January 2017.

95. The question is whether the accident or the degenerative condition caused (or exacerbated) the plaintiff’s injuries and disabilities. I find the following: (a) The accident was a necessary condition of the plaintiff’s initial neck pain, which has since been overlaid with degenerative pain. (b) There was a temporary nerve impingement in the plaintiff’s lumbar spine which increased the pain in the plaintiff’s lower back, but that too has resolved by early 2020, and the current pain and lack of mobility are a result of either degeneration or a separate unrelated trauma (such as the previous motor vehicle accidents) or a combination of both.

96. The reasons for those two findings are as follows. Dealing first with the position up to 2020, the evidence indicates that the plaintiff’s primary complaint following the accident was her neck. While she may have had pain in her lower back, it was clearly not at the same level as the pain in the plaintiff’s neck, which caused her to visit her doctor and have a CT scan of the cervical spine in August 2016.

97. That does not mean that the plaintiff had no pain at all in her lower back attributable to the accident. On the basis of the CT scan in January 2017, she did have nerve impingement in her lumbar spine, but the MRI scan in March 2020 indicated this had resolved. That suggests to me that Dr Pillemer is correct in his assessment that there was initial nerve root irritation attributable to the accident and not degeneration. It is also consistent with the family members’ evidence of their observations of their mother following the accident.

98. In the months following the accident, the most likely scenario is that as the neck pain lessened, the plaintiff was able to isolate her back as a separate source of pain. I have considered the proposition that if the lower back pain and radiculopathy was accident-related, there should have been some significant exacerbation of lower back pain contemporaneous with the accident and in the medical records there is a gap in time between the accident and the plaintiff reporting symptoms associated with back pain.

99. Any perceived gap in the medical records in that regard must be balanced or considered in light of the plaintiff’s evidence as to what her life looked like at that time. She had five school-aged children for whom she clearly remained the primary caregiver, two of whom were hurt in the accident.

100. She was in the process of separating from her husband, was living in between two households, with pain and headaches and her psychological state was poor (although it would subsequently deteriorate further).

101. I am prepared to accept that although the plaintiff did not immediately focus on the lumbar region of her spine during that period, reporting it at the same time as her neck pain or shortly thereafter, the back pain was nevertheless there, and at least partially attributable to the accident. It was just that initially, the pain was not so prominent as to be the thing she needed to address with her GP at that moment in her life. Bringing a modicum of life experience to the plaintiff’s evidence, the plaintiff’s delay in seeing a doctor about her lower back until the January following the accident is entirely plausible. It is entirely consistent with a plaintiff seeing a doctor only when the pain had not resolved through the passage of time, when she had got through a period of peak stress arising from separation, and no doubt when she was finally able to focus on herself after getting her children through the school year and the busyness of the Christmas period.

102. In accepting that the gap in reporting pain in her lower back to her GP does not mean that pain in that region attributable to the accident did not exist, I have taken into account the evidence giving rise to the defendants’ strong concerns about the plaintiff’s credit at a general level. That includes previous findings in a judgment in other proceedings about the plaintiff’s credit, the comments by several medicolegal experts as to exaggeration, the opinion as to the unlikelihood of any harm at all given by the biomechanical expert, and the surveillance footage that was in evidence. All of these give rise to a need for close scrutiny of the plaintiff’s evidence. I do not disregard those matters, but in my view, much of that material carries greater significance when dealing with the extent and duration of the harm suffered. The evidence as to the plaintiff’s initial state and injuries immediately following the accident includes not just the plaintiff’s evidence about her physical symptoms of pain and debilitation, but that of her family members. I do not accept that they were all mistaken, wrong or untruthful about there being at least some significant impact upon their mother’s physical condition following the accident in terms of her neck and back.

103. Due to the delay between hearing and judgment, it is also important to record that these findings are made having regard to the notes I made during the hearing, including my observations of the witness as she entered the witness box and her meanderings as she gave evidence, which both counsel discussed in closing submissions, as well as my observations of the family members who gave evidence. I made note of places where the plaintiff paused during the giving of an answer or was slow or non-responsive in giving her answer. I have considered whether that was cumulatively the behaviour of someone who was making things up, or merely the plaintiff’s usual erratic cognitive functioning on display. The transcript has also assisted to refresh my memory of what occurred at the time. It is a lamentable feature of the workload of the courts that judgments may at times be completed well after a hearing. However, it does not follow that such judgments are only started well after a hearing. Although other business of the Court has regrettably intervened, my findings on the plaintiff’s credit and that of other witnesses reflect my impressions following closing submissions immediately following the hearing.

104. Turning to deal with the plaintiff’s condition from 2020, the position is different. Taking into account the medical records and the expert evidence detailed above, I find that any pain attributable to the accident in either the plaintiff’s neck or back was a product of either her pre-existing condition from previous motor vehicle accidents or subsequent degeneration or a combination of both. The low impact of the accident points to injuries being only of a temporary nature, and that is consistent with the medical evidence confirming that any nerve impingement was temporary. I have arrived at the commencement of 2020 as an approximation because by March 2020, the medical scans (the MRIs in particular) showed no nerve root impingement at the L3/4 or L5/S1 levels and clear degeneration at the L5/S1 level.

105. The consequence of such a finding is that it becomes unnecessary to consider further whether the plaintiff was physically injured or not after 2020. Even if she remained physically injured and in pain, the accident was not the cause.

Headaches, dizziness and vertigo

106. In relation to the plaintiff’s headaches, dizziness and vertigo, I accept the plaintiff may have hit her head on the back of the head rest or a pillar (the door frame) when her body moved forward and back and she suffered headaches associated with the neck pain from the soft tissue injury. This might be described as a whiplash type injury.

107. However, I do not accept that the bang to the plaintiff’s head, however it occurred, resulted in the dizziness that later manifested in her vertigo symptoms and hospital attendances. Again, the force or impact of the accident was low. The medical evidence was that any mild concussion (assuming, in the plaintiff’s favour, that to be the case at its highest) was temporary.

108. The only medical professional to provide an opinion about the possible causes of intermittent vertigo (BPV, migraine or Menieres) was Dr Halmagyi, reporting to Dr Hughes, the neurologist at the Canberra Hospital, in August 2018. He did not link the illness to head trauma in the accident. The evidence indicates that there was at least one episode of benign positional vertigo prior to the accident, and the onset of the vertigo symptoms in addition to headaches only occurred in February 2018, more than a year and a half after the accident.

109. Drawing this all together, the combined position is as follows: (a) The low impact of the accident makes it unlikely that the plaintiff hit her head with force sufficient to cause trauma to the head of such a severity as to cause concussion; (b) Assuming that the plaintiff did suffer a mild concussion or even a severe knock to her head, there is a lack of any reported dizziness symptoms until well after the accident; (c) There is no medical opinion supporting a causal connection between vertigo and the accident; (d) To the extent that the plaintiff’s symptoms of vertigo may be related to head trauma, those symptoms were present in 2010, well prior to the accident.

110. Accordingly, I am not persuaded that the plaintiff has established on the balance of probabilities that the accident was a necessary condition of the happening of the harm in respect of the plaintiff’s vertigo and dizziness.

Psychological conditions – Somatic Symptom Disorder / Major Depression

111. In relation to the plaintiff’s psychological illnesses, the evidence demonstrates that the plaintiff was prone to situational depression and had sleep issues for years. She did not have somatic symptom disorder or severe ongoing depression before the accident. However, she did have a chronic adjustment disorder and reactive generalised anxiety/depressive disorder from 2012.

112. Drawing together the evidence of Dr Khalid, Dr Khurana (the neurosurgeon), and Professor Stevens, the ultimate consensus among the psychological experts was that the plaintiff was suffering from somatic symptom disorder with predominant pain (chronic pain disorder). The plaintiff’s experts were of the view that this was attributable to the motor vehicle accident, but relied substantially on the Court accepting that the plaintiff’s physical condition was itself attributable to the 2016 accident.

113. I consider that the plaintiff’s son was perceptive in his observation that he thought much of his mother’s mental state developed because of the fact that she was in ongoing physical pain over a number of years. There may have been other underlying or pre-existing factors, but the plaintiff here need only establish that the 2016 accident was “a necessary condition”, of the somatic symptom disorder, mirroring the application of the “but for” test: Blundell v Leighton [2013] ACTCA 1 at [56]; see also Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104 at [2].

114. I accept that the development of the somatic symptom disorder is initially attributable to the fact that the plaintiff suffered residual pain at a significant level for years, and that from June 2016, a necessary contributing factor was the 2016 accident. Professor Stevens’ report diagnosing such a disorder (among other things) was prepared in March 2020, and I accept that the plaintiff had developed the psychological condition before 2020.

115. Having found that the plaintiff’s degenerative spinal condition was the cause of the plaintiff’s pain by 2020 and that the plaintiff’s symptoms of vertigo and dizziness were unrelated to the accident, there is a significant possibility that the plaintiff’s present psychological condition, which is ongoing, would have developed in any event. I accept it was likely to have been brought forward by up to 4 years and will therefore allow damages for psychological injury attributable to the accident up to 2020.

116. From 2020, damages are still payable but in a reduced amount. Once the condition developed, the nature of the disability from which the plaintiff suffers is such that it continues notwithstanding that the physical source of the pain may have resolved. However, it is appropriate to heavily discount the damages awarded in respect of the psychological component for somatic symptom disorder, to account for what I consider to be a high likelihood that the plaintiff’s psychological condition arising from ongoing pain unrelated to the accident would have resulted in any event.

117. To the extent that there is an additional claim of severe or major depression, or any lesser form of depression, attributable to the motor vehicle accident, I find that the plaintiff has not established that she has major depression. To the extent that any separate anxiety or depressive mood is ongoing, I find that it was pre-existing.

118. The reason for those findings is that there is a lengthy history of anxiety related symptoms and reports of poor mental health prior to the accident. Further, I accept the defendants’ expert evidence that the plaintiff exaggerated the poor state of her mental health when assessed.

119. Added to this, as the defendant submitted, even if I were to accept that the plaintiff’s anxiety and depression had been exacerbated from 2017 onwards, the evidence revealed that there were multiple other factors that together explained that emotional state, such that the plaintiff has not discharged the onus to prove a causal link between the exacerbation and the accident in 2016. In short, I am just not persuaded that the 2016 accident or any pain arising from it was a necessary condition of any exacerbated anxiety or symptoms of depression separate from the somatic symptom disorder.

120. As to what the multiple other factors were, the plaintiff accepted that she had suffered from chronic low back pain for 25 years up to the accident. The plaintiff’s marriage had been tumultuous for some years prior to the accident, and she separated from her husband one month after the accident. The consequent separation from the plaintiff’s children would surely have been traumatic for her, notwithstanding that she was regularly at the children’s home. Further, at the time of the accident the plaintiff had been locked in a building dispute in respect of what was to be the family home in Griffith. The dispute was litigated in the Magistrates Court. That dispute was followed by bankruptcy proceedings in the Federal Circuit Court of Australia, resulting in the plaintiff being declared bankrupt in April 2019.

121. Those proceedings were followed by a dispute with the trustee in bankruptcy about whether the home in Griffith could be sold (with the prospect of her children being evicted from that residence), which was again litigated, this time in the Supreme Court. One of the plaintiff’s affidavits in previous litigation formed part of the evidence in the present proceeding. In it she deposed to the building dispute causing her “no end of legal, personal and relationship problems”, later stating, “I have had to attend court many times and pay a lot of legal fees. I have now been made bankrupt. All of these actions and events have created enormous anger, stress, misunderstanding and mistrust in my marriage”.

122. Even though I have accepted that there was a period when the plaintiff suffered physical pain relating to the accident, and even accepting that a degree of depression may go hand in hand with somatic symptom disorder, I am not persuaded that any depression separate from the somatic symptom disorder was related to the motor vehicle accident, as opposed to the cause of the plaintiff’s depressed mood being attributable to the plaintiff’s pre-existing psychological state and the multifarious stressors of high magnitude in the plaintiff’s life at the time of the accident and in the years following. In making that finding, I have considered Mr Sutton’s “guesstimate” (his word) that the 2016 accident contributed 30% to the plaintiff’s depression, including “other unknown factors”. It is clear, however, that such an opinion was not based on an understanding of the complete set of tumultuous circumstances in which the plaintiff found herself from the time of the accident to 2022, which were unrelated to the accident.

123. Accordingly, the plaintiff is entitled to succeed in the claim for damages for psychological injury and disability in the form of somatic symptom disorder, but not for any other psychological injury.

Issue 2: Damages – what is the extent of loss consequential upon the injury?

124. In light of the findings above, in assessing quantum below, the Court must take into account: (a) The plaintiff’s pre-existing back injury; (b) A degenerative spinal condition which was increasingly a contributing factor to the plaintiff’s physical pain before 2020; (c) The lack of any causal connection with the plaintiff’s physical condition from 2020; and (d) The possibility that the plaintiff may have developed somatic symptom disorder from chronic pain associated with the spinal degeneration, such that she would be in the same position as she is now regardless of whether the accident had occurred.

125. The plaintiff is entitled to compensation for the soft tissue neck injury which has since resolved, and for the headaches associated with that injury. That warrants a modest amount of compensation for a temporary injury entirely in the past.

126. She is further entitled to be compensated for the exacerbation of her back injury, taking into account the pre-existing back injury (by way of a discount) in respect of past general damages. However, I do not accept that the plaintiff’s condition up to 2020 was as debilitating as she claimed. Further, on the causation findings above, the plaintiff is not entitled to general damages from 2020 in respect of pain and suffering related to her current back injuries.

127. The plaintiff is entitled to compensation for the development of somatic symptom disorder. Again, and because I have a degree of certainty about the degeneration from the medical evidence, a significant discount is applicable to take account of the strong possibility that from 2020, the plaintiff may likely have developed the condition independently of the accident.

128. In respect of accommodating a degenerative condition, or the possibility that the plaintiff would have been in the same position regardless of the accident, I have applied the principles set out in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643. In Lumley v Sainsbury [2017] ACTSC 40 (Lumley), Murrell CJ discussed the applicable principles at [54]: A defendant bears the evidential onus of showing that a plaintiff suffered from a pre-existing condition: Purkess v Crittenden (1965) 114 CLR 164 at 168. Where it is shown that the plaintiff did suffer from a pre-existing condition, the court is required to evaluate possibilities in order to estimate the likelihood that alleged hypothetical past events and possible future events would have occurred: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (‘Malec’), discussed by Ipp JA (with whom Mason P agreed) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [102]–[109] (‘Seltsam’). A proper assessment of damages requires judgement as to the consequences that may have flowed from the worsening of a pre-existing condition if the accident had not occurred: Seltsam per Ipp JA at [107].

129. In respect of a pre-existing back injury which has been exacerbated, or where the likelihood of a degenerative condition becoming symptomatic has not been readily assessable (as is the case here), discounts of up to 25% have been considered appropriate: see cases such as Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [23] and [25], and Robinson v Ng [2014] ACTSC 227 at [209]. In each of those cases, the discount was applied in the context of future economic loss. There is no economic loss claim here, but the contingency will be taken into account in aspects where future damages have been claimed.

General Damages

130. The compensation payable by way of general damages in the present case is for pain and suffering and loss of enjoyment of life, as to which see Young v Rothin [2009] ACTSC 71 at [200] and the cases there-cited. The assessment of general damages relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30].

131. The assessment is general damages neither scientific nor normative: see Franklins Ltd v Burns; Burns v Franklins Ltd [2005] NSWCA 54 at [52], cited in Scuderi v Raskurasingham [2017] ACTSC 41 at [44] per Mossop J.

132. The plaintiff here claimed $120,000 in non-economic loss or general damages. She claimed that she is not able to move about for “any reasonable period of time” without feeling pain, discomfort and reduced strength in her lower back, legs and feet, and is restricted in her ability to perform activities of daily living, household and gardening chores, and interacting with her friends and children as she would otherwise have done.

133. I accept that there may have been a period of time when that loss of amenity was partially attributable to the 2016 accident, consistent with the findings already set out above.

134. The Court may take into account earlier decisions of courts in assessing damages for non-economic loss: s 99 of the Wrongs Act. The purpose of s 99 was discussed by Mossop AsJ (as his Honour then was) in Baxter v Insurance Australia Limited [2015] ACTSC 273 (Baxter) at [26], relevantly as follows: … The purpose of s 99 was to give effect to recommendation 46 of the Ipp Report: Explanatory Statement, Civil Law (Wrongs) Amendment Bill 2003 at p 5. Recommendation 46 of the Ipp Report included recommendations that in assessing general damages a court may refer to decisions in earlier cases and counsel may bring to the court’s attention such awards of general damages (see Ipp Report at p 188). The intention of this was to reverse the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 (‘Planet Fisheries’) which precluded reliance upon all reference to previous decisions in order to establish the appropriate award for general damages. (The same result appears to have been reached without reference to s 99 by the Court of Appeal in Vulin v Cox [2005] ACTCA 22). The intention of the Ipp Report was to promote, over time, consistency of awards for non-economic loss. ... Section 99 is a facultative provision designed to assist the Court and promote uniformity of awards rather than one which permits counsel to inflict a further burden upon trial judges in relation to the provision of reasons. A trial judge may find it appropriate to discuss comparable awards: see for example Davies v Grgic [2006] ACTSC 14, but is not obliged to do so. …

135. There are numerous cases in this jurisdiction dealing with personal injury claims arising out of motor vehicle accidents which resulted in neck and back injuries, with and without psychological consequences, where there are either pre-existing injuries or degenerative conditions or both.

136. For transparency, some of those that have been considered for purposes of ensuring consistency in application of principle include Leighton v Blundell [2011] ACTSC 136, a case where a motor vehicle accident caused ongoing neck, back pain and headaches, with musculoligamentous injury in both the cervical and lumbar spine and there was a chronic pain disorder referenced in the expert evidence. The Court took into account the contingency that the plaintiff’s pain will significantly reduce in the future. An award of $100,000 was made for general damages.

137. I have also considered Lumley, which dealt with a motor vehicle accident involving spinal injuries and a pre-existing symptomatic degenerative condition in the spine. The Court proceeded on the basis that the underlying condition had overtaken the accident-related symptoms or would do so in the near future (see [55]). The Court in Lumley awarded general damages of $65,000. In doing so, Murrell CJ referred to two cases, Rendell v Todd [2012] ACTSC 68 and Wainwright v Lee [2013] ACTSC 191, each of which dealt with pre-existing spinal symptoms for plaintiffs who had been in motor vehicle accidents, the former at age 35 (assessed at age 42), and the latter at age 49 (assessed at age 55). I have also had regard to those cases, being mindful that they are now somewhat dated.

138. In Dow v Elbarbary [2017] ACTSC 418, Murrell CJ dealt with a plaintiff who was a “psychologically fragile individual”, who had a pre-existing chronic but intermittent lumbar condition from previous motor vehicle accidents. She had sustained neck and back injuries in the motor vehicle accident that was the subject of the claim, had developed a pain condition and had anxiety that was associated with the motor vehicle accident. An award of $70,000 in general damages was made.

139. Here, I am proceeding on the basis that the injuries sustained in the accident substantially aggravated the pain that the plaintiff was experiencing due to her previous motor vehicle accidents. Further, because of those accidents and her underlying degenerative condition, that aggravation has now been overtaken, and is now subsumed in the trajectory of the plaintiff’s spinal degeneration.

140. The psychological injuries established largely follow the same pattern, in that the somatic symptom disorder which developed in the years following the 2016 accident is overlaid on the plaintiff’s pre-existing physical pain, anxiety and depression, and a significant discount is appropriate for the possibility that the somatic symptom disorder would by now have developed regardless of the accident.

141. Taking those matters into account, I assess general damages at $75,000. To reflect the fact that much of the pain and suffering attributable to the accident is in the past, and to account for the plaintiff’s degenerative condition overtaking the aggravation caused by the accident, 70% of that amount ($52,500) should be allocated to the past and 30% ($22,500) to the future.

142. Interest has been claimed. The purpose of the interest component is to compensate the plaintiff for losses suffered from not having that money during the relevant period, with the rate of interest allowed being lower than the commercial rate: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663. Calculating interest at the conventional rate of 2% on the past component, for the period from 16 June 2016 to 26 July 2024, and rounding to the nearest dollar, an amount of $8,524 will be awarded for interest.

Past Out-of-pocket Expenses

143. The plaintiff claimed the sum of $35,602.57 in past out-of-pocket expenses in respect of various medical and rehabilitation services, from which a sum of $1,356.50 was to be deducted for sums already paid by the defendants on the claim.

144. Damages for expenses of this kind are payable for treatment that is rendered reasonably necessary by the injury: State Rail Authority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540 at [84]. The claim was supported by receipts and a schedule. The amount claimed included over $14,000 in cryosauna treatments over the period from February 2017 to August 2018, which the plaintiff said temporarily relieved her back pain. There was no evidence in the medical records to indicate that any doctor had recommended the treatment, notwithstanding that the plaintiff had a belief she discussed the treatment with a medical professional. The plaintiff said she became aware of the type of treatment from her physiotherapist.

145. In Lumley, Murrell CJ dealt with a motor vehicle accident where the accident aggravated the plaintiff’s pre-existing back condition. One of the issues under consideration was the utility of chiropractic treatment. Her Honour stated the following principles at [69]: In deciding whether any out-of-pocket expense is reasonable, it is necessary to consider the cost against the health benefits. If the cost is great and the benefit to health is slight or speculative, then the cost of treatment will clearly be unreasonable: Sharman v Evans (1977) 138 CLR 563 at 573. Usually, a plaintiff will not undergo treatment unless, subjectively, she considers it to be reasonably required. However, it is also necessary to consider whether a reasonable plaintiff would have considered it to be reasonably required, having regard to the health benefits: Mohammed v Onsite Formwork Pty Ltd [2015] ACTSC 416 at [44].

146. Applying those principles, and with emphasis on the objective element of the consideration, given the transient benefit to the plaintiff and the lack of any medical justification by a qualified medical practitioner, I am not persuaded that the claim for cryosauna treatments is properly considered as treatment that was “reasonably necessary”.

147. There were also expenses (such as physiotherapy, acupuncture and massage treatments) that occurred in late 2021, which is a period of physical injury or disability that I have found not to be attributable to the accident.

148. That brings the total amount allowable, expressed as a buffer due to the uncertainty, to $20,000 for past out-of-pocket expenses, including interest.

Future Out-of-pocket Expenses

149. On the causation findings above, there are no claimable future out-of-pocket expenses for any ongoing physical condition attributable to the accident.

150. For future psychological treatment, the plaintiff claimed the sum of $8,010.00 for a total of 30 future psychological counselling sessions she will need to undergo, at a rate of $267.00 per session. To take into account the discount for the contingent possibility that the plaintiff would have developed a somatic symptom disorder independently of the accident, I consider a buffer amount of $7,000 to be appropriate.

Past Domestic Assistance

151. The plaintiff claimed past domestic assistance (both paid and unpaid) of $146,300 plus interest on the past paid component at $8,400. This was calculated on the following basis: (a) $100 per week for a housekeeper that was paid to assist the plaintiff’s household at the family home in Griffith, (b) $20 per week for other cleaners and gardeners that were paid, and (c) $40 per hour, one hour a day for 7 years, for unpaid work carried out by the plaintiff’s mother and sister.

152. The housekeeper, plaintiff’s mother and plaintiff’s sister gave evidence and I generally accept their evidence as to what they saw and what they did. However, the evidence is affected by my factual findings on causation above.

153. There was detailed cross-examination about the true reason for hiring the housekeeper/cleaner, given that the plaintiff also separated from her husband a month after the accident and went to live with her mother. The plaintiff’s son said that he arranged that because his mother could not do the household chores that she had previously been doing, and I accept that the plaintiff would have continued to assist in the household where her children were living substantially, notwithstanding that she slept somewhere else.

154. In respect of the extent of domestic assistance required, there was expert evidence before the Court in the form of a report dated 31 January 2022 by Katrina Prior, an occupational therapist engaged by the defendants. Ms Prior’s view was that it would have been reasonable for the plaintiff to have received assistance with heavy domestic tasks in the first six weeks following the accident, when she was recovering from a minor soft tissue injury, but not for any period thereafter.

155. Ms Prior’s report went into some detail in explaining the unsatisfactory nature of the plaintiff’s presentation and self-reporting on the day of the assessment. It is unnecessary to repeat those matters here because of the findings above, in that none of the physical symptoms of which the plaintiff was complaining at the time of the assessment were causally connected to the accident. For example, some of the plaintiff’s claim for assistance related to the plaintiff’s dizziness or vertigo symptoms, her ability to walk or need to sit frequently. As I have not found any causal link between those symptoms and the 2016 accident, I do not need to assess the veracity or the extent of the plaintiff’s claim for assistance arising out of those injuries.

156. I have found that the accident aggravated the plaintiff’s physical condition, and I accept that this caused a degree of restriction, with the result that an amount for domestic assistance is properly claimable, subject to a limit on the period for which her condition was properly attributable to the motor vehicle accident, being mid-2016 to around December 2019, for the reasons explained above.

157. Again, due to the uncertainty, I have assessed domestic assistance on the basis of a buffer, allowing $35,000. The buffer is broadly based on allowing for $150 per week for both paid and unpaid assistance as being a portion that I have accepted as attributable to injuries exacerbated by the accident, for an approximate period of 3 and a half years, plus interest, which has then been discounted to take account of the plaintiff’s pre-existing injuries. Future Domestic Assistance

158. Future domestic assistance was claimed in the sum of $73,080 on an average basis of one hour a day, for five years. Again, that amount was on the basis that the Court accepted the physical disabilities as being attributable to the accident in the future.

159. Consistently with the approach taken in respect of past domestic assistance, a buffer will be awarded, because precision is not possible in the circumstances of this case.

160. The buffer takes into account the following: (a) The earlier findings that the physical disabilities, including the plaintiff’s vertigo symptoms, are now unrelated to the motor vehicle accident, which reduces the amount to be awarded for future domestic assistance. (b) The ongoing nature of the plaintiff’s psychological condition means that she may at times be prevented from undertaking chores because of her condition, but the possibility that such a condition may have developed independently of the 2016 accident must be taken into account. (c) The plaintiff’s claim following the conclusion of the evidence for future domestic assistance for a period of the next five years is accepted, although not to the level claimed for reasons already explained.

161. I will allow a modest buffer amount of $2,000 per year as an appropriate contribution to what may be a greater level of domestic assistance the plaintiff receives in the future. Accordingly, an amount of $10,000 will be awarded.

Summary of Damages

162. Drawing together the above findings, the award of damages may be summarised as follows: General Damages $75,000 Interest on past component of $8,524 general damages Past Out-of-Pocket expenses $20,000 Future Out-of-Pocket expenses $7,000 Past Domestic Assistance $35,000

Future Domestic Assistance $10,000

Total $155,524 Costs

163. Costs are in the discretion of the Court, although ordinarily they will follow the event, being the outcome of the proceeding. The plaintiff has been successful in recovering damages, although in a lesser sum than that sought. Accordingly, the defendants should pay the plaintiff’s costs, subject to being given an opportunity to seek a variation in relation to matters that might presently be outside the awareness of the Court. Conclusion

164. For the above reasons, the Court makes the following orders: (1) Judgment is entered for the plaintiff in the sum of $155,524. (2) The defendants are to pay the plaintiff’s costs. (3) If any party seeks a variation to order 2 by notification to chambers within 7 days, order 2 is stayed until further order.

I certify that the preceding one hundred and sixty-four [164] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: