Matthews v Dent & Anor

District Court of NSW|2009-09-21|Before: Mr P

CITATION: Matthews v Dent & Anor [2010] NSWDC 68

Verdict and judgment for the plaintiff in the sum of $715,687; DECISION: 2. The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: TORT - motor vehicle collision - DAMAGES - assessment of damages for personal injury under Motor Accidents Compensation Act 1999 - physical and psychological injuries - conflicting medical evidence - medical witnesses not called to explain opinions - loss of earning capacity - domestic assistance - future treatment - assessments required despite absence of definitive evidence as to costing

LEGISLATION CITED: Evidence Act 1995 Motor Accidents Compensation Act 1999

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 53 Angel v Hawkesbury Council [2008] NSWCA 130 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Larson v Commissioner of Police [2004] NSWCA 126 CASES CITED: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Majkic v Bonnano [2008] NSWCA 253 Mason v Demasi [2009] NSWCA 227 Morgan v Gibson [1997] NSWCA 212 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Strinic v Singh [2009] NSWCA 15 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Helen Rose Matthews (Plaintiff) PARTIES: Linda Dent (First defendant) Edward Thomas Rodham (Second defendant)

COUNSEL: Mr A Lidden SC with Mr P Khandar (Plaintiff) Mr A Bowen (Defendants)

SOLICITORS: LJ Sharpe & Co (Plaintiff) Lee & Lyons (Defendants)

A. INTRODUCTION [1] - [14] Nature of the case [1] - [2] Issues [3] - [8] Credibility of testimony [9] - [12] Summary of findings [13] Assessed heads of damage [14] B. EVIDENCE REVIEW [15] - [158] Overview of evidence [16] Review of oral evidence [17] - [73] The plaintiff, Mrs Helen Matthews [18] - [58] Personal history [18] Work history [19] - [22] Health, social, family circumstances, and earning capacity [23] - [29] Pre-injury work duties [30] - [36] Motor vehicle collision in question [37] - [38] Plaintiff's awareness of the events [39] Injuries and immediate after effects [40] Treatment and rehabilitation [41] - [44] Disabilities [45] - [52] Post-injury attempts at carrying out work [53] - [54] Post-injury activities [55] DVD showing selected activities - comments by plaintiff [56] - [58] Mrs Melissa Jones [59] - [68] Mrs Lorraine Holloway [69] - [73] Medical evidence - reports and materials [74] - [158] Treatment reports [75] - [101] Dr Yap [76] Dr Mudbidri [77] Dr Zaka [78] Dr Cotterell [79] - [84] Dr McCombe [85] - [90] Mr Hewitt [91] - [94] Medical investigations [95] - [101] Commonwealth Rehabilitation Service reports [102] - [106] Reports obtained by plaintiff's solicitor [107] - [112] Dr Conrad [108] - [109] Dr Clark [110] - [112] Reports and materials obtained by solicitor for defendant [113] - [158] Records of Dr Zaka [114] Records of Dr Cotterell [115] - [116] Records of Dr Gunasena [117] Dr Jackson - MAS Assessment [118] - [125] Associate Professor McPhee [126] - [140] Dr Virgona [141] - [151] Ms O'Dwyer [152] - [158] C. FINDINGS ON CONFLICTING EVIDENCE [159] - [213] Resolution of medical issues arising from reports [160] Resolution of conflicting physical medical opinion [160] - [170] Resolution of conflicting psychiatric opinions [171] - [202] DVD evidence [203] - [211] Life span of plaintiff [212] D. DAMAGES ASSESSMENT [213] - [313] Damages assessment [213] Non-economic loss [214] - [222] Past loss of earning capacity [223] - [241] Future loss of earning capacity [242] - [257] Past superannuation losses [258] Future superannuation losses [259] Past domestic assistance [260] - [295] Future domestic assistance [296] - [300] Future treatment [301] - [311] Past out-of-pocket expenses [312] Summary of damages assessment [313] E. DISPOSITION & ORDERS [314] - [315] Disposition [314] Orders [315]

The plaintiff, Mrs Helen Matthews, claims damages for physical and psychological injuries she sustained in a highway collision that occurred at about 4.00am on Wednesday 29 June 2005. At that time, the plaintiff was a front seat passenger in a motor vehicle being driven by her daughter, the first defendant, who was driving the second defendant's motor vehicle south on the Pacific Highway near Ballina, NSW.

The plaintiff's daughter lost control of the vehicle as she drove on a muddy road surface and in doing so, the vehicle slewed and then slid into collision with the trailer portion of a passing northbound semi-trailer vehicle. As a consequence, the plaintiff claims to have suffered physical and psychological injuries, for which she claims damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"].

The defendants have admitted liability for the plaintiff's injuries. The principal issues for determination concern the nature and extent of the plaintiff's injuries, the extent to which she has suffered past and future loss of earning capacity, and the extent of her need for past and future domestic assistance and future treatment.

The parties elected not to call oral evidence from the medical experts whom they had respectively retained to examine the plaintiff. This was in the context where there was conflict of opinion between the respective reports of those experts. That conflict was most pronounced in the case of the psychiatric opinions. The failure of the parties to call these experts to clarify the basis of their differing opinions has added to the analytical burden in this case : Majkic v Bonnano [2008] NSWCA 253 per Bell JA at [26]. This has necessitated a detailed review of the body of the evidence as a whole.

The defendants claimed that the plaintiff had recovered from any psychiatric disorder she may have had as a consequence of the collision. The defendants based that submission on the report of the psychiatrist whom they had qualified to examine the plaintiff, yet the defendants declined to call that psychiatrist or to seek the opportunity to cross-examine or traduce the contrary psychiatric opinion to the effect that the plaintiff continued to suffer from post-traumatic stress disorder, a dysthymic disorder and chronic depression.

To a lesser extent, a similar problem emerged regarding conflicting expert opinion concerning the plaintiff's ongoing neck, left shoulder and back problems, particularly as these problems impacted upon the plaintiff's earning capacity and her need for domestic assistance.

In the state in which the parties left the evidence, these issues had to be resolved by determining which of the expert opinions were the most persuasive: Larson v Commissioner of Police [2004] NSWCA 126 per Tobias JA at [48].

In similar cases of this kind but where the damages claimed are relatively modest, an expedient and pragmatic approach, as was adopted by the parties in this case, may be understandable. However, in this case, where the damages claimed were substantial, different considerations arise.

The credibility of the testimony of the plaintiff was an issue in this case. The challenge to the credibility of her testimony was in part based on a series of DVD images showing activity on her part. The challenge to the plaintiff's credit was also in part based upon the content of histories recorded by medical examiners. Where those examiners were not called to clarify the matters in contention, credit challenges of that nature are necessarily rendered problematic : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.

In the circumstances of this case, where it became necessary to undertake a detailed evidence review, I have found the plaintiff to be a credible witness and I have accepted her evidence as being truthful. I consider that the DVD evidence shown by the defendants, and which provided an insight into some of the plaintiff's activities, did not materially contradict her evidence, nor did it demonstrate that the plaintiff had exaggerated her evidence as was claimed on behalf of the defendants.

In these circumstances, having undertaken a detailed review of the evidence of the plaintiff, her daughter, her sister and having compared this evidence with matters of history recorded in the various expert reports tendered, I have found a general consistency in the description of the plaintiff's complaints, both in her evidence and as summarised in the reports. In these circumstances I consider that I am able to confidently rely upon the plaintiff's evidence and those summaries, except where I have found a report to be deficient for reasons stated.

Having accepted the plaintiff to be a credible witness, with the preceding qualification identified, I felt I could confidently rely upon the representations recorded in the histories of the plaintiff's complaints as recorded by the assessing doctors when they surveyed the range and detail of her disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; s 60 of the Evidence Act 1995. In my view, the plaintiff gave her evidence reasonably and with a tone of restraint and understatement when she related her problems.

I have found that the collision in question has caused the plaintiff to suffer significant soft tissue neck and back injuries which have aggravated underlying degenerative changes in the plaintiff's spine and which continue to have an ongoing adverse impact upon the plaintiff's day to day activities and well-being. These injuries involved disc bulges and protrusions to various levels in the plaintiff's neck and back. I have also found the plaintiff has suffered a significant psychological injury as a consequence of the collision on seeing her family members injured and put in peril. The result for the plaintiff has been post-traumatic stress disorder, dysthymic disorder, anxiety and depression, which are recognised psychiatric conditions. I have found the physical effects of her injuries have had a significant past and continuing adverse impact upon the plaintiff's earning capacity and have resulted in the need for past and future domestic assistance and future treatment. I have assessed the plaintiff's entitlement to damages in the amount of $715,687.

A total of 9 claimed heads of damage required assessment. The parties made disparate submissions on quantum. The heads of damage claimed by the plaintiff and the submissions of the parties, are listed below together with paragraph references to my assessment of the various heads of damage claimed:

Head of Damage Claimed by Plaintiff Plaintiff's Submissions Defendants' Submissions Assessed Amount Paragraphs (a) Non-economic loss $200,000 $85,000 $140,000 [214] - [222] (b) Past loss of earning capacity $129,000 $62,400 $98,500 [223] - [241] (c) Future loss of earning capacity $228,130 $58,752 $213,792 [242] - [257] (d) Past loss of superannuation $14,190 $5,616 $10,835 [258] (e) Future loss of superannuation $25,100 $5,287 $23,517 [259] (f) Past domestic assistance $38,720 $19,620 $31,320 [260] - [295] (g) Future domestic assistance $233,465 $76,605 $175,098 [296] - [300] (h) Future treatment $20,000 $3,000 $15,000 [301] - [311] (i) Past out-of-pocket expenses $7,265 $7,265 $7,625 [312] Totals $895,870 $323,545 $715,687

Before arriving at my findings on the issues for determination I consider it necessary to set out a summary of my review of the evidence.

The plaintiff gave evidence and was cross-examined. Her daughter Melissa Jones also gave evidence, as did the plaintiff's sister, Lorraine Holloway. The parties each tendered voluminous bundles of medical reports, which raised conflicting opinions on medical issues concerning the diagnosis of ongoing disabilities. No medical witnesses were called to give oral evidence to assist in the task of reconciling conflicting medical opinions. The defendants tendered the plaintiff's income-tax returns as a bundle, without analysis. I have set out my summary of the medical and allied evidence and my conclusions drawn from that evidence, between paragraphs [74] and [202] of my reasons.

In the paragraphs that follow between [18] and [73] I set out a summary of the oral evidence.

The plaintiff was born in 1952. At the time of the injury she was aged 53 years. At the time of the trial she was aged 57 years. She had left school at the age of 16 years. She first married in 1971. The children of the first marriage were born in 1971, 1973 and 1974. She remarried in 1985 and she had her fourth child in that year. She has since separated from her second husband.

The plaintiff's work history commenced when she was aged 16 years. She had a history of steady employment in a variety of occupations. She has held positions as a shop assistant for a major chain store, she worked variously in a clerical position for a printing company, as a waitress, farm work collecting eggs, as a packer in a cheese factory, as a cashier for a department store and she has worked at a mail centre in Canberra. She has also worked as a shoe fitter for a department store, she has worked in a plant nursery serving customers, she has worked as a cashier/console operator at a petrol station, she has worked on the production line of a clothing factory and packaging goods in a pharmaceutical factory.

Before her injury, the plaintiff was motivated to continue to work in the employment capacities I have outlined because, for many years, she had to support herself and her children.

In the late 1990's, the plaintiff had enrolled at the University of Western Sydney to study a course, which would have led to the degree of Bachelor of Applied Science in the field of diversional therapy. She enrolled in that course in the hope of gaining work in a field that was mentally stimulating for her. She stated that she discontinued the course in 1997 because she needed to return to work to earn wages in order to support herself financially.

Before her injury the plaintiff had been working for a pharmaceutical factory, packing shampoos and similar goods on a production line. That was full time night work, Monday to Friday. She ceased that work just before Christmas of 2004 in order to travel to Queensland to assist one of her daughters with childcare as her daughter was at that time having family difficulties. Although the plaintiff was not working at the time of her injury, it was clear from her work history that she had an earning capacity that she could have exercised when she became free to do so.

Health, social and family circumstances impacting on earning capacity

In October 1994 the plaintiff suffered a slip and fall injury when she tripped whilst walking on a footpath at night. In that incident, she injured her neck and her back. As a result, she had some time away from her work in a department store. At around this time she was having some emotional difficulties due to marriage problems. Her marriage had broken down and she also had a nervous breakdown. It appears that she had glandular fever at this time as well. The circumstances resulted in the need for the plaintiff to receive psychiatric treatment. These events kept her out of the workforce for a few years. As a consequence of the slip and fall injury, for a time, the plaintiff had some ongoing symptoms concerning her neck and her back.

Towards the end of 1997, the plaintiff re-entered the workforce and obtained work at a plant nursery, in a full-time casual position serving customers. She said that by this stage, she had ceased experiencing problems with her neck and with her back. She had also ceased receiving psychiatric treatment at around that time, but was still taking antidepressant medication, which she took for a further one and a half years, before ceasing to take it.

After working in the plant nursery for about 2 years, in order to try something new, the plaintiff took up employment with a major supermarket chain as a console operator at a petrol station working approximately 20-25 hours per week. She held that position for approximately 4 years. In 2003 she switched employment to work as a night packer of a production line for a clothing manufacturer. She worked on night shifts so she could look after her family during the day. She then switched this employment to work night shifts for the pharmaceutical company for which she was carrying out packing work. She ceased this work at Christmas 2004 when she travelled to Queensland to live with one of her daughters at a time of crisis in that daughter's family.

In March 2005, each of the plaintiff's two daughters, who then lived and who are still living in Queensland, had suffered a foot injury. On consecutive days each of them had suffered a foot fracture. As a consequence of these circumstances, the plaintiff took up the responsibility of assisting each of her daughters to run their households and to care for their children.

Between March 2005 and June 2005, the plaintiff was kept fairly busy looking after her two daughters and her five grandchildren, four of whom were at school.

Although this remained the position up until the time of the collision, which is the subject of these proceedings, as her daughters were recovering from their injuries, the plaintiff had commenced looking to obtain work just before the motor vehicle collision. She was hoping to be in the workforce within a couple of weeks at around the time the collision occurred, because her daughters were starting to recover from their injuries.

At the time of the subject collision, the plaintiff was on her way to Sydney to visit her own mother. The plaintiff also stated that it was her intention two live in Queensland to be near her sisters and their children. She stated that she believed that she would have found nightshift employment for 40 hours per week were it not for the collision. At the time of the trial she stated that as a result of the injuries she has received in the collision, she believed she would not be able to go back to her pre-injury employment.

It is relevant to the claim for loss of earning capacity to review the range of physical activities the plaintiff was accustomed to performing before she was injured.

When the plaintiff was employed by the printing company, she carried out debt recovery work involving a range of clerical activities. When she worked at the plant nursery she was involved in lifting bags of potting mix, soil, woodchips, fertiliser and the like. When the plaintiff worked at the mail centre she was mainly involved in desk duties and filing in pigeon-holes.

In her employment for the clothing manufacturer and the pharmaceutical company, where she was performing night packing work, the plaintiff worked full time over the course of five nights a week. In the service station job, she used to operate the dip stick to measure the quantity of petrol in the underground tanks, she did all the daily weekly and monthly paperwork, including running the shop, stock taking, keeping the shelves stocked and the accounting associated with that business.

The service station job also required her to manipulate a large trolley that had to be pulled out and stacked up with large bottles of oil on a daily basis. This trolley would have to be pulled into the front of the forecourt of the service station. I infer from the description that this was a heavy work task. She also had to take delivery of stock and to bring stock into the shop of the service station and to stock the shelves and refrigerator. This work also involved lifting boxes, placing them in her car, unloading them, including heavy crates of milk.

When the plaintiff worked as a shoe fitter for the department store, she was required to climb up and down ladders and put away boxes of shoes as well as bringing down boxes of shoes for customers to try. She had hoped to continue with this employment until she retired. She stated that she had planned continuing to work in order to save some money to avoid being dependent on the aged pension.

It is clear that in the years before her injury in the subject collision, despite her earlier injuries, the plaintiff had a capacity to carry out a relatively unrestricted range of work in a wide range of occupations.

Since the injury, she has been dependent upon a government disability support pension which she stated was not to her liking.

In the early hours of 29 June 2005, the plaintiff was a passenger in a motor vehicle being driven by her daughter Linda. The vehicle was travelling south along the Pacific Highway near Ballina on the way to Sydney, where the plaintiff was intending to visit her mother. Whilst driving on a muddy section of the roadway, due to sliding the vehicle collided with the trailer portion of a semi-trailer truck travelling in the opposite direction. As a result of the collision the vehicle in which the plaintiff was travelling was crushed to a degree. The defendants have conceded negligence and there is no need to further describe the circumstances of the collision other than to record that the events were extremely shocking to the plaintiff.

In cross-examination, the plaintiff disagreed with the proposition that the collision simply involved the front of her daughter's vehicle clipping the side of the semitrailer thus causing her daughter's vehicle to start to spin. She agreed that at the scene she declined the suggestion that an ambulance be called. She also agreed that she left Ballina without receiving medical treatment before getting on a plane to travel to Sydney.

Plaintiff's awareness of the events of the collision

The plaintiff stated that in the events of the collision, she was aware of the approach of the trailer at an angle. She said she was aware of the impact. She stated: "I thought we were dead. I'd could (see) my daughter going to be decapitated." She closed her eyes whilst the car spun around. She stated that she could hear metal crunching very loudly. She was aware of an airbag having gone off at the driver's wheel. When she opened her eyes she could see that the vehicle was on the other side of the road, in a ditch and facing north. She said she could not move. For a few minutes she was dizzy from the spinouts of the vehicle and from shock. She said she felt numb and couldn't speak. She said she was aware of her baby granddaughter being taken out from the back of the vehicle.

The plaintiff said that following the collision, she was aware of soreness from her head all the way down her body. She said she felt very unwell, was in a lot of pain and felt very sore all over. She described her emotional state as being "terrible". Her predominant physical problems concerned her neck, head and back. She said she experienced problems with lifting her left arm, difficulty standing up or sitting down and had pain down the back of the leg. She said she had great difficulty showering, dressing and looking after herself. She remained in Sydney for a month, during which time her mother and her mother's carer looked after her. She described her emotional state as being "Not really well."

Whilst in Sydney, on the day following her injury, the plaintiff consulted a general practitioner, Dr Yap. She stated that he had told her that she "had a whole spinal whiplash". She stated that whilst she was in Sydney she suffered from bronchitis and was very sick. This apparently impeded her from seeking out medical treatment for her injuries. On her return to Brisbane she saw Dr Zaka, and later, after changing general practitioners, she saw Dr Cotterell. On medical advice she underwent physiotherapy but this was not of much assistance. She said she was also advised to obtain a neck collar and she did this. She subsequently saw another general practitioner, Dr Gunasena.

The plaintiff's general practitioner referred her to an orthopaedic surgeon, Dr McCombem, but no active treatment was recommended. She said she has also tried antidepressant medication but has found this does not help. The drug in question, Endep, had caused her to experience side effects, including a feeling of grogginess and an inability to function or think clearly.

Throughout the remainder of 2005 the plaintiff said she had experienced ongoing problems as described and which were not improving but were worsening.

The plaintiff stated that shortly before the trial, she saw a Dr Saunders, who had recommended that she take antidepressant medication. She stated that it was her intention to pursue antidepressant treatment.

The plaintiff stated that she currently experiences a lot of pain in her neck. She stated that she cannot completely turn her neck to the left without experiencing pain going down into her shoulder. She also described that pain as radiating down to the left shoulder blade and lower back. She stated that her neck does not feel normal. She stated that the pain never leaves her, even on a good or moderate day, and it gets worse by the evening or earlier in the afternoon depending upon her level of activity. She stated that at its worst, the pain gives her migraines around the vicinity of her ear.

The plaintiff said that this state had been static for about six months before the trial. She said that she still has pain radiating down her left arm and her neck pain has been constant over the preceding six months. She stated that she still cannot stand for long periods without having to sit down, and this situation is becoming chronic for her. She also stated that she is never free of back pain and it gets worse depending upon the activity in which she is involved. The back pain was described as being in the mid thoracic region and down to the lumbar region. She describes this pain as being intermittent.

The plaintiff also described experiencing bad nightmares in which she is aware of crashes, voices, metal and involving her daughter. These nightmares commenced straight after the accident and initially occurred every night but now she stated that she experiences these every few weeks, depending upon whether she has been driving or whether she has seen a truck. She has become depressed and suffers from anxiety. Her nightmares affect her sleeping patterns.

The plaintiff described how her leisure activities have been affected by her injuries. She stated that she can no longer do what she wanted to do. Going to the beach was not the same for her. She was unable to run around on the beach and swim with her grandchildren. She ceased providing assistance to her daughters and her grandchildren. She stated she was unable to resume housework assistance for her daughter. However, she still minds her 9 and 10 year old grandchildren after school whilst her daughter is at work.

She stated that her ability to do housework, including vacuum cleaning, sweeping and walking is affected by her experience of chronic pain which causes her to become laid up afterward for days or weeks. She stated that she does simple tasks like cleaning her bath, wiping the basin and toilet but finds it difficult to clean the shower. She stated that she is unable to carry out normal shopping tasks and these days only gets "Little bits and pieces".

She stated that she experiences some difficulty cooking meals and has to sit down and have breaks when carrying out these tasks.

In cross-examination, the plaintiff disagreed with the proposition that after the October 1994 injury her neck and back had never returned to the pre-injury state. She denied the defendants' suggestion that she had a diagnosis of conversion disorder with depressive features after the October 1994 fall. That evidence was not contradicted.

The plaintiff agreed that in February 2007, when she saw Dr McPhee at the request of the defendants, she had truthfully told him that her symptoms had improved "50 to 60 per cent". She added that it was difficult to place a range on her condition because it was intermittent and was never the same every day, some days it was worse than others and it was very hard for her to gauge the degree of disability.

The plaintiff agreed that in May 2006 her general practitioner Dr Cotterell suggested she should seek suitable part-time work for up to 8 or 10 hours per week. In compliance with that suggestion, the plaintiff stated that she attempted to do voluntary work for the Red Cross but found she was unable to do this because she could not stand up in order to carry out the task of stapling tags on clothes.

In cross-examination the plaintiff disagreed with the proposition that as at February 2006, she was able to carry out light work for 12 to 15 hours per week. She agreed that in January 2007 she had participated in a Commonwealth Rehabilitation Service [CRS] functional capacity evaluation with a view to obtaining work. It was through CRS that she obtained a training "lollypop" position directing traffic at pedestrian crossings outside schools but found that she could not pursue that activity.

The plaintiff was cross-examined concerning a number of her post-injury activities. She agreed that she could undertake mopping activity in small areas. She stated that if she carried out sweeping she would have to endure after effects. She stated that her ability to carry out vacuuming was dependent upon how her back was at the time, as such activity had after effects for her back. She agreed that she could carry out cooking activities but qualified this by saying that she had to sit down and have rests. She agreed that she had tried to carry out a larger shopping. She stated that she could sometimes prepare family meals. She stated that when she did the laundry she experienced pain. She carried out washing for her grandchildren every day.

The plaintiff was shown some DVD sequences taken on 23 January 2007 at the request of the defendants : Exhibit "3". She agreed that those sequences showed she was driving. She denied that she had no difficulty driving. These sequences also showed her carrying some shopping parcels. She stated that she experienced great difficulty in reaching into a supermarket freezer bin to select items as was shown on the DVD. She agreed that she could push a shopping trolley but did not agree that this was something she could do without difficulty.

The plaintiff agreed that the DVD showed she was able to drive to the shops from her daughter's home. This involves a journey of some 25 minutes in the car. She disagreed with the suggestion that this was something she could do without difficulty. She stated that at the time when the DVD sequences were filmed, she was taking medicine every day in order to assist her to cope.

When specifically questioned on her ability two manipulate a full laden shopping trolley, she pointed out that her daughter usually pulled this as well. She also stated that such activity caused her to suffer pain. She described her pain as occurring every day to different degrees, escalating with activity. She was shown some DVD film of collecting some shopping out of the back of a hatchback vehicle. When cross-examined about her ability to drive for 25 minutes to the shopping centre, she stated that she could do so because she took frequent sit and rest breaks, and usually took more medication.

Mrs Melissa Jones, a daughter of the plaintiff, gave evidence of the plaintiff's pre-injury and post-injury status.

Mrs Jones was taken to the events of the 1990's when her mother had fallen on a footpath and had injured herself. At that time Mrs Jones was aged about 25 or 26 years and was living in Queensland but said she used to visit her mother a lot in Sydney.

It was against that background that she described her mother as having had some physical and emotional problems before the motor vehicle collision but she encapsulated this by stating that when the plaintiff moved to Queensland she moved by herself and without assistance.

Mrs Jones confirmed the effect of the evidence given by the plaintiff that in March 2005, both she and her sister had suffered foot injuries. Before those foot injuries she described the plaintiff as having looked after her and her two children by taking full responsibility for the running of the home, in addition to helping her other sister and children, who lived some five minutes drive by car from her home.

Mrs Jones described her knowledge of the plaintiff's pre-injury activities. She stated that before her injuries in 2005, the plaintiff did a lot of housework for her, including a lot of heavy lifting around the house, cooking, vacuuming, washing and "everything". She described her mother as being a very able person, capable of doing many things before the injury. She described her mother as being very well and very stable before the injuries in question.

Mrs Jones learned about the injury to her mother at about 4.00am on the morning in question but did not see her mother until about six weeks afterwards, by which time she had returned to Queensland in what she described as a very debilitated state. Mrs Jones had the perception of the plaintiff at that time as being in a lot of pain, crying a lot and complaining of pain and discomfort. She described the plaintiff as having been very depressed on her return to Queensland. She observed the plaintiff to have been consumed with pain and restricted in her activities.

Mrs Jones described the plaintiff as doing very little around the house in the early period after her injury, and still having restrictions at the present time even though from time to time she attempts to undertake aspects of housework until it appears to cause her pain.

Mrs Jones described how, since the injury in question, after her own recuperation following her foot injury, that is by about October 2005, she was providing her mother with domestic assistance comprising cleaning and cooking, clearing up, food preparation, washing, hanging washing, sorting the dried washing, folding and ironing, and shopping, for about 15 or 16 hours per week after the injury. Mrs Jones stated that she carried out quite a number of household tasks for the plaintiff of this nature for about 18 months. The evidence as to the nature, extent and time involved concerning these domestic activities was difficult to clearly interpret. Mrs Jones conceded that some of the work that involved domestic activity to assist the plaintiff was also provided for the benefit of other household members.

Significantly, Mrs Jones was able to describe the detail of the activities that were shown on the DVD that was taken by investigators acting on behalf of the defendants. She confirmed that the cereal boxes which the plaintiff was shown to have carried under her left arm whilst walking up the access way to the house were not heavy at all. She also confirmed that she had herself carried the groceries from the car up the driveway into the house because her mother couldn't carry awkward things up the steep access. Mrs Jones stated that whilst she and her mother lived together for the present time, her plans were to move away from Queensland and to live with her boyfriend in South Australia where he had obtained work.

Significantly, Mrs Jones denied the suggestion that her mother had not ever really recovered from the stressful emotional condition she suffered after being injured in 1994. She also denied that the plaintiff's emotional problems that had arisen after the 2005 motor vehicle collision had improved.

Mrs Lorraine Holloway, the plaintiff's sister, gave evidence concerning the plaintiff's pre-injury status, which included her work history as well as her physical and psychological health. The perspective from which she gave this evidence was her familiarity with the plaintiff before her injuries and her contact with the plaintiff every six months since the injury, and regular telephone contact, at least monthly.

Mrs Holloway described how, when the plaintiff was in Sydney, she took her to a chiropractor for back massage and for x-rays. She conceded that she did not have a day-to-day relationship with the plaintiff because of the geographical separation between them, the plaintiff residing in Queensland.

Mrs Holloway described the plaintiff as being a very active, energetic and happy person, a good homemaker who also gardened and entertained, who had a lot of friends, who worked hard, including in physical occupations. She described the plaintiff as having had "her life back together" after the 1994 fall and before the 2005 injury.

Mrs Holloway described the plaintiff's physical state as having deteriorated between 2005 and the present time. She stated that she had observed the plaintiff had become very rigid in her movements, did not go out very often and took painkilling medication. She described a change in the plaintiff's personality, accompanied by depression, chronic pain, unhappiness and loss of interest. She conveyed the impression that the plaintiff had appeared to have aged somewhat since being injured in the collision. Mrs Holloway had not noticed a lot of improvement in the plaintiff's physical and emotional state in the year or so before the trial.

Mrs Holloway denied she was tailoring her evidence to assist the plaintiff's case.

In the paragraphs that follow I set out my review of the medical evidence. That review involves the treatment reports, medical investigation reports, CRS reports, and reports and records obtained by the respective solicitors for the parties.

The plaintiff has been assessed and treated by general practitioners, a chiropractor, a physiotherapist and an orthopaedic surgeon.

Dr Yap - first treating general practitioner in Sydney

On 30 June 2005, after her arrival in Sydney on the day following the collision the plaintiff consulted Dr Robert Yap, a general practitioner. Dr Yap provided a report dated 30 May 2007 in which he outlined his clinical contact with the plaintiff. He took a history of the plaintiff complaining of neck, shoulder and lower back pain. He diagnosed her as suffering from a whiplash type injury to the neck and lower back. He prescribed Naprosyn for pain and recommended physiotherapy. Following the plaintiff's return to Queensland at the end of July 2005, she again returned to see Dr Yap on a couple of occasions when she was in Sydney in February and October of 2006, at which time he provided her with prescriptions.

Dr Mudbidri - medical practitioner and chiropractor

On 7 July 2005 the plaintiff saw Dr Samantha Mudbidri, a medical practitioner who was also a chiropractor. She carried out a three level examination of her spine on that occasion. Dr Mudbidri noted abnormalities of spinal tilting and curvature at various levels. The report does not offer any opinion on whether or not these observations were due to muscle spasm. It appears this referral was at the request of Mr Jamal Sabsabi, a chiropractor. Mr Sabsabi's notes reveal a record of the plaintiff having complained of moderate pain and restriction of movement in the cervical spine and severe pain and restriction of movement in the lumbar spine. A diagrammatic representation of the plaintiff's complaints show the affected areas to have been the right side of the face, the left clavicular and scapular regions and the thoraco-lumbar spines. It is not possible to interpret the symbol notations that were employed by Mr Sabsabi to record the findings on examination.

On 1 and 2 August 2005, following her return to Queensland at the end of July 2005, the plaintiff attended the Beenleigh After Hours Medical Centre where she was seen by Dr Tabinda Zaka who took a history that included intermittent complaints of low back pain and improved neck pain. A diagnosis of whiplash injury was made. Heat packs and analgesia were recommended as treatment. The plaintiff was advised not to undertake any heavy lifting, pulling or pushing activities.

On 11 August 2005, the plaintiff saw Dr Sue Cotterell, a general practitioner. Dr Cotterell referred the plaintiff to Mr Hewitt for physiotherapy treatment. Dr Cotterell arranged for a CT scan to be obtained of the plaintiff's lumbo-sacral spine. I will refer to the findings of those scans in my summary of the medical investigations that were undertaken on the plaintiff.

Dr Cotterell prepared a report dated 31 May 2006 in which she summarised the history and her clinical contact with the plaintiff. She stated that when she first saw the plaintiff on 11 August 2005 she was complaining of nightmares related to be collision and was having difficulty sitting or standing for any length of time and had pain down her legs, mainly on the right side. Dr Cotterell noted her findings on examination, which included restricted movements of the neck and back with tenderness across the shoulders and spine. She diagnosed a musculo-ligamentous soft tissue injury to the neck, upper shoulders, thoracic and lumbar spines.

Dr Cotterell also noted the plaintiff needed analgesia for muscle spasm and pain. In November 2005 she noted that the plaintiff was limping when walking and was experiencing a number of symptoms which included left facial and left arm numbness, left-sided neck pain, limitation of back movements and decreased sensation in the left leg. She also reported that the plaintiff was continuing to suffer from back pain and was stooped over after 10 minutes of walking. After arranging for investigations and trials of various medications, Dr Cotterell referred the plaintiff to Dr McCombe, an orthopaedic surgeon. She also prescribed exercise and hydrotherapy.

Dr Cotterell stated that she suspected the plaintiff would have ongoing back and neck pain and sciatica of an intermittent nature. In May 2006 she felt it was too early to give a definitive opinion as treatment may have helped and, by inference, may possibly continue to be of help in alleviating the plaintiff's symptoms.

Dr Cotterell's report stated that the plaintiff would be able to start part-time work providing suitable employment could be got for 8 to 10 hours per week, not involving sitting or standing for any length of time, no lifting of weights heavier than 5 kgs, or lifting anything above the shoulders, perhaps doing office work, provided it was not of a repetitive nature.

Dr Cotterell stated that she did not feel there was any overlying functional or psychosomatic component to the plaintiff's presentation. She noted that the plaintiff was assiduously attending physiotherapy and doing the prescribed exercises. She noted the plaintiff reported experiencing anger and nightmares. She noted that the plaintiff had "up" days and "down" days. She stated that she considered the plaintiff's presentation to be a normal reaction of a person who had been fit and well and who was having ongoing back pain resulting from injuries sustained in the collision.

On 7 November 2005 the plaintiff was seen for assessment and treatment by Dr McCombe, an orthopaedic surgeon. Dr McCombe saw the plaintiff again on 28 August 2006 for the purpose of preparing a report for the plaintiff's solicitor. That report was dated 24 August 2006.

At the first consultation in 2005, Dr McCombe took a history of post-injury neck and low back problems and pain radiating into the left shoulder and left leg, these symptoms having begun about 2 days after the injury. He also recorded a history of left-sided headaches and worsening of the low back pain with lifting activities. He noted the plaintiff was taking Digesic and diazepam. There is no dispute that these respective medications are for pain relief in the case of Digesic, and for muscle relaxation or as a calmative, in the case of diazepam.

At his first consultation, Dr McCombe noted on examination that the plaintiff's whole spine was stiff and painful. He noted extension movements were difficult and painful. He noted tenderness in the mid-cervical, lower thoracic and the whole of the lumbar regions. He reviewed the radiology scans and identified a left sided foraminal disc protrusion at the L3/4 level. He recommended conservative treatment.

At the consultation on 23 August 2006, Dr McCombe took an updated history from the plaintiff in which he recorded pain in the left shoulder girdle, left and right buttocks, intermittent radiation into the left leg, and intermittent sensations of pins and needles in her hands. He recorded that she complained of aggravation of these problems on standing for more than 15 minutes. He noted the complaint of difficulty sitting for more than half an hour and walking for about 750m. He noted the complaint of difficulty with domestic tasks. He noted the plaintiff's intake of 12 paracetamol tablets per day, 2-4 Nurofen tablets per day and the occasional dose of Mersyndol. He observed a positive left femoral stretch test in his examination.

Dr McCombe diagnosed the plaintiff as having had a whiplash injury of the whole spine with pain experienced particularly in the thoracic and lumbar spines. He stated that no treatment was likely to modify the outcome of the condition. He also stated that the plaintiff would require intermittent analgesia, probably of the paracetamol and codeine type, in the foreseeable future. Although he identified a possibility of some minor improvement over the ensuing 12 months, he stated that the prognosis was for long-term pain. He expressed pessimism about the plaintiff being able to find any job for which she would be suited, and which she would be able to do, noting that she was clearly not fit to return to her previous employment as a warehouse packer.

Significantly, Dr McCombe observed that the plaintiff was not coping well with her pain. He was cautious not to apply the label of psychosomatic functional disorder or abnormal illness behaviour because it was important to understand, that it was likely in his view, that the plaintiff was suffering from an underlying organic injury.

On 15 August 2005, at the referral of Dr Cotterell, the plaintiff first consulted Mr Scott Hewitt, a physiotherapist. Mr Hewitt asked the plaintiff to complete a questionnaire concerning her presenting state of health.

The plaintiff's responses to the questionnaire indicated to Mr Hewitt that she had taken painkilling medication without effect on the pain. She indicated that she found it painful to look after herself, could only lift light weights, she spent most of the day in bed or in a chair, pain prevented her from sitting for more than 10 minutes and standing for more than 10 minutes, she slept less than 2 hours even with medication, pain had restricted her social life, her pain was getting neither better nor worse, and she was restricted with travelling for more than half an hour.

Mr Hewitt informed the CTP insurer that he found objective evidence that the plaintiff was in a flexed position when he examined her, at which time she was "10-15º off straight". Mr Hewitt did not indicate which part he was considering when he wrote those remarks however, I infer from the recorded remarks regarding the subjective symptoms to the lumbar spine, the neck, fatigue and pain in both legs, that he was referring to the spine.

Mr Hewitt formulated a treatment plan that involved mobilisation and stability exercises with the aim of achieving a full range of movement over the course of a number of weeks of recommended treatment. Mr Hewitt's notes were in evidence but were poorly copied and difficult to read. His record card indicated that there were at least 14 treatments administered to the plaintiff before he noted his card with the words "Allianz will not pay", at which time his treatment appeared to have stopped.

The plaintiff has a number of medical investigations of her post-injury problems.

On 12 August 2005 Dr Landy carried out a CT scan examination of the plaintiff's lumbosacral spine at the request of Dr Cotterell. This was reported as showing postero-lateral disc protrusion/herniation at the L4/5 level on the left involving the inferior aspect and lateral to the intervertebral foramen. The CT scan was also reported as showing that at the level L4/5 there was an annulus disc bulging indenting the anterior aspect of the thecal sac, more prominent on the left than on the right, with some degenerative changes at the apophyseal joints.

On 7 February 2006 Dr Landy carried out further CT scanning of the lumbosacral spine due to left and right-sided sciatica and buttock pain. He reported that at the L3/4 level there was some lateral disc bulging with some focal protrusion postero-laterally on the left and narrowing of the intervertebral foramen inferiorly. At the L4/5 level he reported some annulus disc bulging evident with slight flattening of the anterior aspect of the thecal sac. He again noted degenerative change in the apophyseal joints. At the L5/S1 level he noted some annulus disc bulging and decrease in vertebral disc height.

On 3 November 2006 Dr Dunn was asked to undertake further CT scanning of the lumbosacral spine. The background history was that of low back pain, radiating down both legs and a previous focal disc protrusion at L3/4. His findings indicated an increased lumber lordosis and forward sacral tilt which he indicated could lead to significant instability and early degeneration within the lower lumbar facet joints. He noted the presence of disc bulging at the levels previously reported upon, and he indicated that the appearance was probably not significantly changed from the previous scans.

On 22 May 2009 Dr de Silva undertook CT scanning of the plaintiff's cervical spine. He noted some facet joint degeneration at the C2/3 facet. He also noted mild disc herniation posteriorly at the C3/4 level. There was also left sided C 3/4 facet joint degeneration.

On 25 May 2009 Dr Ho reported upon MRI scanning of the plaintiffs lumbar spine. The clinical history was that of an acute exacerbation of chronic low back pain. The conclusion following the scanning was L4/5 and L5/S1 facet arthrosis. Abnormalities were also noted at the levels L1/2, being a depression deformity of the L2 endplate indicating interosseous disc herniation and L4/5 posterior disc bulging.

On 25 May 2009 Dr Nguyen reported on a whole-body study SPECT scan. Clinical indication for this was chronic lower back pain, thoracic and cervical pain with acute exacerbations. Arthritic changes were noted in various parts of the body, including in the neck and back.

On 9 January 2007 Centrelink referred the plaintiff to the CRS for a job capacity assessment report. It was difficult to form a complete view of that assessment because only three of the nine pages of the report were tendered.

Part of the CRS report acknowledged that for the plaintiff to cope with work-related stress and pressures, she would need some work capacity support for a duration of longer than 24 months, whatever that meant. In the general assessment summary of the report, on the assumption that the plaintiff's disability "can be partially compensated for, or accommodated by the provision of disability specific intervention … it is anticipated the client will have a future capacity for work of 8-14 hours per week in an open employment situation." It was noted that the assessor thought the plaintiff would benefit from continuing to participate in vocational rehabilitation and that she would continue to benefit from continuing with her current treatment for her pain. The qualifications of the author of the report were not stated and the author gave no acknowledgement of the expert witness code.

On 5 December 2007 the plaintiff underwent a functional capacity evaluation concerning the chronic pain experienced in her back, her hip, her neck and her shoulder. That assessment was originally commenced on 5 January 2007 but, owing to the irritability of the plaintiff's condition on that date, a follow-up appointment was booked for 14 May 2007, when "her condition was less irritable". The assessment was carried out, on behalf of the CRS by Mr Anton Nguyen, a physiotherapist. The report summarised the plaintiff's reported limitations in her ability to carry out the activities of daily living. The history was summarised as follows: "…She reports significant restrictions with vacuuming, washing, ironing, shopping and gardening. She has moderate restrictions with cooking, cleaning, making the bed and looking after her grandchild. She has slight restrictions with self care such as cutting her toenails and shaving her legs. Helen reports that she has trouble with sleeping. She takes sleeping tablets on a regular basis to help her sleep. Her sleeping averages 3-4 hours a night. Helen is unable to return to sleep when she wakes up due to pain. She reports that she is able to sit for 30 minutes. Stand for 5-10 minutes. Lift up to 4 kg and carry 2kg. Helen reports that she is unable to drive a manual car, due to flare up of back and hp ain. She is able to drive an automatic car for 2-30 minutes. Helen reports occasional difficulty with stairs."

The physical symptoms of back pain, sciatica, shoulder and neck pain and related headaches were reviewed, as were the recorded flare-ups of the condition that the plaintiff was experiencing whilst attempting to do some volunteer work.

The vocational assessment was framed in terms of statistical descriptors "Based on the summary of definitions of work and physical demand characteristics." The meaning of this expression was not explained. Qualified in that way, the author of the report expressed the opinion that the plaintiff would be able to work in a retail/sales position as long as it did not involve lifting more than 3 kgs. It was noted that she was suitable for sedentary work with no lifting of anything greater than 3 kgs "on a rare basis". Other job restrictions were also noted concerning the ability to change positions frequently and to allow time for stretching. The report concluded that the plaintiff would benefit from job training or a gradual return to work programme to improve her physical work tolerance and to monitor her progress. Clearly, the report was inconclusive and was not intended to be a definitive assessment of the plaintiff's capacity to work.

The solicitor for the plaintiff obtained a number of medico-legal assessments and reports. These are summarised in the paragraphs that follow.

On 16 February 2006, at the request of her solicitors, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad's report of that consultation was dated 17 February 2006. In that report, after reviewing the plaintiff's history, and recording his findings on examination, which included the presence of moderate paravertebral muscle spasm, a restriction of spinal and related movements, with hyer-reflexia in the left leg, Dr Conrad expressed the view that the plaintiff had sustained a significant whiplash injury of the neck, left shoulder strain and a back strain, associated with a disc prolapse as was shown on the CT scan. He also noted left-sided sciatica. He suggested the need for ongoing physiotherapy on an as needed basis. Dr Conrad expressed the view that the plaintiff was fit for only light work, starting at about 12-15 hours per week but perhaps very likely as part of a structured rehabilitation programme. He predicted that she should (after participating in that programme) be in a position where she would be able to stand or sit at will, and lift anything more than 5 kgs in weight or do repetitive lifting or bending. He stated that she would not be able to lift her left arm above shoulder level and she would not be able to do "full on process work or factory work". In his view the plaintiff's prognosis was uncertain at the time.

At the request of her solicitors, Dr Conrad examined the plaintiff again on 28 May 2009. The report following that consultation was dated 29 May 2009. After reviewing her history again, Dr Conrad noted the plaintiff had more limitation of movement in all directions of her cervical spine due to pain. He also noted the presence of a paravertebral muscle spasm and a loss of range of movement in an asymmetrical fashion. His examination of the plaintiffs' lumbar spine noted moderate paravertebral muscle spasm was present. Dr Conrad reviewed the radiology evidence as set out on page 2 of this report. In addition to reiterating his earlier conclusions with regard to the plaintiff's potential to do about 12-15 hours per week of light work, with the qualifications on her ability to stand or sit at will and with lifting restrictions, he also stated that she should not use heavy industrial vacuum cleaners and polishers. He stated that the work that he foreshadowed in this regard should be part of a structured rehabilitation programme. He also noted that if the plaintiff's daughter was not available to assist with the heavier parts of housework, she might need about 6 hours per week of home care assistance.

On 16 August 2007, at the request of her solicitors, the plaintiff was examined by Dr Thomas Clark, a consultant psychiatrist. Dr Clark's report of that consultation was dated 2 September 2007. In his report, Dr Clark set out the history of the events provided by the plaintiff of the collision, and characterised this as akin to a near death experience for the plaintiff. He noted the history of her development of insomnia, hypervigilance and an inability to relax. He noted that she had developed pain and also considerable psychiatric distress and many symptoms of a traumatised state. He characterised this distress as having become chronic, and evolved into a chronic depression known as dysthymia. He noted that the plaintiff had low self-esteem and no-confidence, and that this interfered with her life such that at times, she was overtly depressed and crying.

Dr Clark stated that the plaintiff presented with the signs and symptoms of an anxiety state. He diagnosed her as having post-traumatic stress disorder with depression to the point that she developed an anxiety state, panic attacks and become chronically depressed and withdrawn. In his view, the depression, which has been evident for a long time, was caused by the collision. He recommended that she should see a psychiatrist for treatment. Within the parameters of the DSM IV, he characterised her diagnosis as being a dysthymic disorder. In his opinion this disorder had reached a state of maximal medical improvement. He stated that there was no evidence of a pre-existing condition.

On 29 May 2009, the plaintiff was re-examined by Dr Clark. His report following that examination was dated 2 June 2009. After reviewing the earlier history, Dr Clark noted that the plaintiff was hypersensitive to touch even to the point of no longer going to a hairdresser but rather, a short visit to a barber. In his view the plaintiff exhibited signs and symptoms of an anxiety state. He noted that her earlier presentation of hypersensitivity had caused her to develop avoidance strategies, including to the point where she did not read much or watch disturbing television programs. Dr Clark reiterated his earlier diagnosis of post-traumatic stress disorder with depression. He characterised the disorder as being chronic.

Medical materials and reports obtained by solicitor for defendants

The defendants tendered the clinical notes and records of three of the plaintiff's treating general practitioners, as well as reports from a specialist spinal surgeon, a psychiatrist and an occupational therapist. Within the clinical records tendered by the defendants there was also a report from a specialist in musculoskeletal medicine. That report was commissioned by the Motor Accidents Authority to determine the nature and extent of the plaintiff's injuries.

Copies of the clinical records were tendered by the defendants relating to the plaintiff and produced on subpoena by Dr Tabinda Zaka. These records consisted of clinical progress notes for medical consultations covering the period between 1 August 2005 and 29 January 2007, which was after the plaintiff obtained some initial medical assistance in Sydney. The first entry in the records of Dr Zaka concerned a consultation on 1 August 2005 following the plaintiff's return to Queensland from Sydney. Dr Zaka noted the history of a whiplash injury involving the neck and back. In my view, there was nothing in these records that could be read as being contradictory of the plaintiff's claim.

Records of Dr Cotterell - treating general practitioner

Copies of the clinical records relating to the plaintiff and produced on subpoena by Dr Sue Cotterell were tendered by the defendants. These records were paginated and comprised some 90 pages. The records comprised consultations with Dr Cotterell and other medical practitioners in her practice, and spanned the period 18 June 2004 to 28 May 2007.

Whilst these voluminous records obviously include consultations for matters unrelated to the subject injury, in my view they also contain records of medical consultations sought by the plaintiff relating to her post-injury problems and her need for painkilling medication, along with related referrals. The purpose behind the defendants' tender of these records was not clear. In my view there was nothing in these records that could be read as being contradictory of the plaintiff's claim.

Records of Dr Gunasena - treating general practitioner

Copies of the clinical records were tendered by the defendants relating to the plaintiff and produced on subpoena by Dr Lalitha Gunasena. These records consisted of clinical progress notes for medical consultations covering the period 17 January 2007 and 21 December 2007. Whilst some of the consultations concerned unrelated matters, these records documented the occasional prescription of painkilling medication and the complaints of long-term neck, back and shoulder pain. In my view there was nothing in these records that could be read as being contradictory of the plaintiff's claim.

Dr Peter Jackson - specialist in musculo-skeletal medicine

Dr Gunasena's records included copies of certificates of determination dated 5 March 2007, issued following medical assessment of the plaintiff on 2 March 2007 by Dr Peter Jackson, a specialist in musculoskeletal medicine. He was engaged by the Motor Accidents Authority Medical Assessment Service to examine the plaintiff to determine the nature of her injuries, the cause of those injuries, the degree of stability of the effects of those injuries, and the degree of permanent impairment that remained as a consequence of those injuries.

Dr Jackson reviewed the plaintiff's complaints, took a history from her and reviewed a number of radiology scans. The complaints made by the plaintiff to him essentially related to her neck, lower back and left shoulder. She complained of continuing to suffer left-sided neck pain, particularly on movement and referred pain, particularly in the region of the left shoulder. Dr Jackson also noted the history of left gluteal pain that is invariably present. He also noted complaints of frequent insomnia and fatigue and the need to take analgesic medication.

Dr Jackson also noted the plaintiff's complaint of impairment concerning activities of daily living, comprising activities such as bathing, grooming, dressing, eating, reading, writing, using keyboard, standing, sitting, declining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pushing, pulling, grasping, holding, pinching, driving and participating in sports or hobbies other than walking.

Dr Jackson's findings on clinical examination of the plaintiff's neck revealed a slightly protracted posture, tenderness, asymmetry, reduced motion and increased muscle guarding between left-sided C5/6/7 and tender muscle induration of the left trapezius, sternocleidomastoid and scalene group of muscles.

Dr Jackson's findings on clinical examination of the plaintiff's lumbar spine revealed left pelvic obliquity or non-parallel muscle arrangement, with side bending the lumbar spine to the right and rotated to the left. He noted that palpation of the lumbar spine revealed painful induration of the left-sided paravertebral and gluteal muscles.

Dr Jackson reviewed medical reports and certificates from Dr Yap, Dr Cotterell and Dr McCombe in addition to the radiology scans provided to him.

Dr Jackson concluded that his clinical findings were consistent with the plaintiff's injuries and history, and that the findings on examination were internally consistent. In his diagnosis, the plaintiff had aggravation of pre-existing degenerative change at the C3/4 and C4/5 levels of the cervical spine, lumbar spine injuries comprising left-sided paranormal disc protrusion at L3/4, L3/4 and lateral L3/4 disc bulge and L4/5 disc bulge and protrusion.

Dr Jackson considered that all of the complaints of injuries, namely to the neck, lower back and lumbar spine, and the left shoulder strain, were caused by the collision in question, with the proviso that he thought that on the balance of probabilities the various disc lesions were pre-existing. He did not think that there were any complaints made by the plaintiff which were unrelated to the collision in question.

Associate Professor McPhee - consultant spinal surgeon

The plaintiff was seen by Associate Professor Bruce McPhee on two occasions at the request of the defendants. As a consequence, Associate Professor McPhee produced two reports following his examinations of the plaintiff. He also produced some follow-up correspondence with the solicitors for the defendants in answer to questions that had been asked of him. This material was tendered by the defendants.

Associate Professor McPhee is an orthopaedic surgeon. He noted that his clinical practice was exclusively in spinal surgery.

The first report of Associate Professor McPhee was dated 19 February 2007 and related to an examination of the plaintiff by him on 14 February 2007. After taking a history of the incident and of her current clinical complaints, which related to the neck, the scapular region and the low back, he also noted that the plaintiff took prescription and non-prescription medication daily, and that she had difficulty with household and domestic tasks. He also noted that she was currently attending the CRS and was not working. He reviewed the radiology scans and noted the degenerative changes in the facet joints at C3/4 and C4/5, as well as a prominent left postero-lateral bulge at the L3/4 disc as well as minor posterior bulging at the L4/5 and L5/S1 disc. He also noted a moderate degree of degenerative change in all facet joints, most marked at the L4/5 level.

Associate Professor McPhee stated his opinion that, on the balance of probabilities, the pre-existing degenerative changes in the neck and back have been aggravated by the road traffic injury due to soft tissue strains. He did not explain how he undertook the weighing of the relevant factors that enabled him to reach that balanced conclusion. He referred to statistical studies concerning the course over which such injuries take to improve, noting that a small proportion of patients continued to have symptoms long-term. Associate Professor McPhee acknowledged that it was reasonable to assume that the plaintiff may have an incapacity for the most robust and heavy tasks of domestic work.

Associate Professor McPhee stated that the plaintiff had suffered a soft tissue strain of the neck and back which, based on statistically scaled instruments of relative measurement, classified her "as having a minor disability". With regard to the consistency of the plaintiff's presentation in the consultation he stated : " Consistency of Presentation

It was demonstrated during the examination that the claimant's range of lumbar spine movements was not consistent with her full capabilities. This casts some doubt on the validity of any observation relating to the range of movements in her neck and lumbar spines. Other than these findings no other significant inconsistencies were noted. These observations do not constitute abnormal illness behaviour. Although there is no evidence of significant functional overlay, I suspect there is a level of stress which is tending to dictate the level (sic) activities she undertakes."

Associate Professor McPhee did not explain which of the particular lumbar spinal movements was not consistent with the plaintiff's full capabilities. Therefore, it is not possible to rationally analyse or fully determine the probative value of his statement that sought to cast some doubt on the validity of observations made relating to the range of movements in the plaintiff's neck and back. This aspect of his opinion was clouded by the limited nature of his explanation. His statement appears to have been based on inconsistencies he said he observed in relation to lumbar spine movements. He claimed that this cast doubt on the validity of observations relating not only to the movements of the lumbar spine, but also concerning the neck movements. However, the nexus of his observations concerning the lumbar spine as relating to the neck remained unexplained.

On 18 March 2009 Associate Professor McPhee re-examined the plaintiff at the request of the solicitor for the defendants. He produced a report of that consultation which was dated 19 March 2009. In updating the clinical history following this consultation, he noted that although there had been some 50-60 per cent improvement in symptoms from the time of injury to the time of the last consultation the plaintiff had with him, on 2 February 2007, there had been no improvement since. The plaintiff's symptoms still related to the neck, the left shoulder, the back, and right buttock pain. The history of denial of any past history of medical low back pain was confirmed.

In his second consultation, Associate Professor McPhee noted the range of the plaintiff's lumbar spine movements was generally reduced. He also noted that there was a general reduction in all movements of the neck. He also noted that the left shoulder showed restricted elevation by flexion or adduction. He reviewed radiology scans and noted abnormalities concerning lordosis and kyphosis but did not comment on whether or not these were underlying problems or whether they were postural issues to do with muscle spasm or guarding, or otherwise.

Following his second consultation he reiterated his earlier view that there had been an aggravation of pre-existing cervical and lumbar degenerative changes due to a whiplash injury that occurred on 29 June 2005. He then referred to the statistical prognosis of such injuries and noted that in all long-term studies, between 40 per cent and 70 per cent of patients may have ongoing symptoms, including neck, shoulder, low back and leg pain.

Associate Professor McPhee stated that it was conceivable that the plaintiff may have a functional incapacity for robust physical tasks or manual activities above shoulder level, these tasks including bending, lifting, carrying and pushing. However, he stated that there was nothing on examination which he thought would preclude her from undertaking sedentary work which may include some light or occasional moderately physical tasks. He qualified this statement to depend upon the plaintiff's ability to tolerate pain when she undertakes such activities. He referred to the phenomenon of psychological and social factors which may serve to reinforce invalidity. Considering her age, and her qualifications and ongoing disability, he predicted that the probability of the plaintiff finding suitable employment would be low, or virtually zero.

In considering the plaintiff's presentation at the consultation, Associate Professor McPhee softened his earlier statement casting doubt on the validity of his observations concerning range of movements of the neck and back. In this regard, in his 2009 report he stated: " Consistency of Presentation

The claimant's presentation is consistent with the history and radiological findings. The level of incapacity may be a little more than might be anticipated given her clinical and radiological findings. Although there is no clinical evidence of significant functional overlay, there is a level of stress which is tending to dictate the level of activities Ms Matthews is prepared to undertake."

Associate Professor McPhee was provided with further information by correspondence. The letters from the solicitor for the defendants that generated this correspondence were not tendered in evidence.

On 13 May 2009 Associate Professor McPhee wrote an explanatory letter to the solicitor for the defendants, confirming that in his opinion, according to the applicable statistical instruments and measurement of impairment, the combined impairment of both the cervical and lumbar spine in the plaintiff was 10 per cent of the individual as a whole.

On 6 July 2009 Associate Professor McPhee undertook a review of the reports of Dr Conrad and some of the radiological reports that I have already reviewed. In his letter of 6 July 2009 he sought to imply that the examination carried out by Dr Conrad was inadequate because it was exceptionally brief concerning its description of examinations of the spine and made no reference to cross-checking of findings under distraction, compared to his own examination technique. In the absence of explanatory evidence concerning the reliability or unreliability of one examination technique compared to another, I am not prepared to speculate on whether or not such a criticism is valid.

In his 6 July 2009 letter, Associate Professor McPhee considered that any restrictions in the plaintiff's left shoulder movements were pain related and were referred from the cervical spine rather than due to localised shoulder pathology. For the purpose of these proceedings is not necessary that I attempt to reconcile any debate between Associate Professor McPhee and Dr Conrad as to any differences they may hold concerning the appropriate statistical measurement percentage impairment, concerning the cervical spine in the absence of left shoulder pathology. For the purposes of assessment in this case, it is sufficient to have regard to the complaints, the history and questions of diagnosis, rather than to refer to statistical descriptors.

On 13 April 2009, at the request of the solicitor for the defendants, the plaintiff was examined by Dr Angelo Virgona, a consultant psychiatrist. Following a one hour consultation with the plaintiff, Dr Virgona issued his report to the solicitor for the defendants on the same day. Dr Virgona took a history of the occurrence of the incident, the course of subsequent events relating to injury, treatment and disability, and focused on the psychological issues.

Dr Virgona noted that after the incident in question the plaintiff became afraid of trucks on the road and had lasting nightmares, but these became less frequent. He noted that she had explained how she had learnt to cope with these problems on her own, without psychological help.

On specific questioning, Dr Virgona elicited that the plaintiff's concentration becomes affected by pain, she experiences occasional anger, she has had panic attacks at the sight of trucks on the road, such attacks being accompanied by palpitations and hyperventilation and these days, when she feels the onset of anxiety she is able to talk herself out of it, and calms down. He noted the past history of nervous breakdown in 1994, in association with a marital breakdown, a fall, the occurrence of glandular fever, early menopause, depression and the excessive use of sedatives for a brief period. He noted that these events had resulted in three brief hospitalisations, which were secondary to suicide attempts. Following the receipt of psychiatric treatment for 12 months, and following the taking of prescribed antidepressants, she had no further such problems.

Dr Virgona noted that at the time of his examination, that the plaintiff was taking Panadeine Forte tablets, between two and six times a day as prescribed, together with Stilnox for sleep, Nurofen for pain and diazepam for her back.

Dr Virgona a reviewed the plaintiff's medical, family and personal history. He also reviewed personality factors and undertook a mental state examination. He noted that she was moved to tears briefly when talking about the collision. He made no adverse comments about these matters.

Dr Virgona reviewed the medical documentation provided to him by the solicitor for the defendants. He remarked that the materials from Dr Yap, Dr Zaka and Dr Gunasena made no mention of psychological symptoms. He acknowledged that the records of Dr Cotterell made reference to the plaintiff having felt "like a stunned mullet after the accident initially but after a while she seemed fine". That quotation was obviously his summation of history because it appears to intermix an account of history with an element of conclusion.

The report of Dr Virgona incorporated an inaccurate summation of the opinion expressed by Dr McCombe. In this regard, Dr Virgona summarised the opinion of Dr McCombe as being "he was of the view that there were inconsistent findings, that she was not coping well with her pain and that there were some features of 'abnormal psychosomatic illness behaviour'". In contrast to that summary, the relevant portion of the report of Dr McCombe that had been summarised by Dr Virgona, in fact stated : "You also specifically ask for an opinion as to whether any functional, hysterical or psychosomatic condition is affecting your client. This is always difficult to say with any degree of certainty. She does appear to be rather anxious and frightened by the pain. The history of being in bed for three to four days at a time after doing vacuuming or mopping is suggestive of an inability to cope with her pain. There were certain inconsistent features on examination in terms of the location of the tenderness in that it was not particularly repeatable; however this is not an uncommon finding. I would express the view that she is not coping well with her pain and this latter inability to cope is in fact as (sic for a ) psychological problem that could by some be construed to be psychosomatic or function (sic) and hysterical. However, she would not fit the true definition of a functional hysterical person. There are some features of abnormal psychosomatic illness behaviour, though it is important to understand that she (sic) likely suffers from an underlying organic injury."

In my view, when this portion of Dr McCombe's actual report is read in context, it reveals Dr Virgona's summary omitted important aspects of qualification of the views expressed by Dr McCombe which Dr Virgona appears to have overlooked. Dr McCombe's reference to some features of abnormal illness behaviour was qualified by the emphasis on the likelihood that the plaintiff suffers from an underlying organic injury which places an entirely different perspective to the mention of abnormal illness behaviour.

Dr Virgona reviewed the 2 September 2007 report of Dr Clark and stated that it appeared to him that Dr Clark had not detailed the symptoms, their nature, frequency or duration, that based his conclusions concerning dysthymia and chronic depression in the plaintiff's presentation and his diagnosis of "Post Traumatic Stress Disorder with depression".

Dr Virgona concluded that it was likely the plaintiff had an anxiety type response to a frightening motor vehicle accident where the thought of the death of her daughter was noted at the time. He stated that she subsequently developed specific anxiety, and likely panic attacks, associated with driving, and with proximity to trucks in particular, and for a short period, nightmares related to the accident. He also noted some ongoing sleep disturbance requiring sedative hypnotics, not appearing to be anxiety related. He stated that she was now symptom-free and reported no psychological impairment affecting any of her functioning.

The defendants sought to tender a commentary letter dated 10 September 2009 from Dr Virgona. The tender was objected to by the plaintiff and it was rejected because it had been served out of time required for service. The rejected letter was marked MFI "2". That letter was not based on any updated examination and was restricted to comments.

On 21 February 2008, at the request of the solicitor for the defendants, the plaintiff underwent an assessment by an occupational therapist, Ms Detta O'Dwyer. The report of that consultation was dated 21 April 2008. The assessment, which took place over the course of a three hour period, involved the plaintiff performing tasks that included sitting, standing, walking, and demonstrating functional postures and activities in her home environment.

In the course of her interview with the plaintiff, Ms O'Dwyer took a baseline history that the plaintiff had been living independently before her injury and had been working until December 2004. After reviewing the medical evidence that had been provided to her, Ms O'Dwyer tabulated her own findings concerning the plaintiff's movements and functional tolerances concerning her neck, left shoulder and lumbar spine, including activities involving transfers, walking, sitting, lifting, carrying, standing, kneeling and squatting. She recorded limitations in the plaintiff's abilities concerning all these activities.

Ms O'Dwyer reported that the plaintiff has remained independent with activities concerning showering, drying, dressing, grooming, toileting and personal hygiene, noting that the plaintiff sits down whilst dressing herself.

Ms O'Dwyer assessed the plaintiff as having the physical capacity to prepare meals without assistance, if living alone. She noted some limitations with regard to laundry activity, namely, having to lower the clothesline when hanging clothes, and to doing a little ironing at a time rather than in a prolonged session. She noted that the plaintiff had difficulty with heavy domestic cleaning tasks and that these were attended to by her daughter. Ms O'Dwyer thought that the plaintiff's functional capacity for domestic cleaning tasks could be increased with the provision of functional education by an occupational therapist, however she stated that there were some tasks which she was assessed as being unable to undertake, comprising cleaning bathrooms, heavy vacuuming and mopping. In this regard, Ms O'Dwyer recommended the provision of 2 hours per week of domestic assistance plus 12 hours per year of assistance with spring cleaning tasks.

Ms O'Dwyer noted that the reported difficulty with shopping activities, including reaching forward and having access to shelves as well as manipulating items out of the trolley, pushing a trolley and lifting bags. In this regard Ms O'Dwyer thought it was reasonable, in view of the plaintiff's multilevel disc protrusion, that 1 hour per week for shopping assistance be provided. That opinion also assumed, incorrectly, that the plaintiff's disc protrusions were associated with nerve involvement, which they were not. Nevertheless, the basis upon which such assistance is said to be required, is in my view, sufficiently demonstrated by reference to the plaintiff's disc protrusions alone, although there is some contention as to the time estimates Ms O'Dwyer had allowed for shopping activities.

Ms O'Dwyer believed that the plaintiff should be justifiably provided with one hour per month of assistance with gardening and 30 minutes, presumably each week, for community access to facilities such as banking, shopping, paying bills and the like.

Ms O'Dwyer itemised her recommendations to identify the need for the provision of 3.5 hours per week of domestic assistance which, when costed at the differential rates for the different activities, amounted to approximately $5435.60 per year or $104.53 per week.

Medical issues arising from the reports tendered by the parties

There are two principal areas of disagreement within the medical evidence. The first relates to the views of the specialists in physical medicine disciplines and the second relates to the views of the consultant psychiatrists.

Differences of opinion amongst physical medicine specialists

The earlier described reports of the extensive series of the radiological investigations that were undertaken concerning the plaintiff's neck and back, comprising CT scans, MRI scans and SPECT scans, variously reveal the presence of degenerative changes, disc bulges, disc protrusions and disc herniations.

Dr McCombe, who is an orthopaedic surgeon, was the first medical specialist to examine the plaintiff after her injury. In my view, he was in a position of particular advantage to observe the evolution of the plaintiff's problems concerning her cervical, thoracic and lumbar spines and associated soft tissue structures in the period between November 2005 and August 2006.

In the context of the plaintiff's evidence that she had recovered from the effects of her 1994 neck and back problems by about 1997, I do not consider the recorded history by Dr McCombe of denial by the plaintiff of previous spinal pain to be of significance in this case, because the plaintiff was free of neck and back pain and was functioning without difficulty over those years until her injury on 29 June 2005.

Dr McCombe obtained a history of a substantial collision and the contemporaneous onset of neck and back pain with radiation of pain into the left shoulder and the left leg. The onset was from the time of the injury on 29 June 2005 continuing until the time of his consultation on 7 November 2005. On examining the plaintiff he found associated tenderness and muscle spasm. The contemporaneous CT scan showed a left-sided foraminal disc protrusion at L3/4. He recommended conservative treatment which is what then ensued.

Subsequent reports by Dr Jackson, on behalf of the MAA, Associate Professor McPhee on behalf of the defendants, and Dr Conrad on behalf of the plaintiff all acknowledged the existence of radiological evidence showing extensive degenerative changes, disc bulges and disc protrusions in the plaintiff's spine.

Within this body of evidence competing views emerged as to the nature of the plaintiff's injury.

On the one hand, following his examination of the plaintiff on 16 February 2006, Dr Conrad, an experienced surgeon, was of the opinion that the plaintiff had a significant whiplash injury to the neck, a straining injury to her left shoulder and a back strain in association with a disc prolapse as shown in the CT scan. He considered this latter finding to be responsible for her complaints of left sided sciatica. In forming this view, he was aware of the previous injuries to the neck and back which the plaintiff had sustained in 1994. When he examined the plaintiff again on 28 May 2009 and updated the history, he undertook a review of a more extensive series of radiological scans and came to the opinion that the whiplash injury to the neck was associated with a C3/4 disc and he confirmed his earlier view as to the L3/4 disc protrusion. He also noticed the presence of paravertebral muscle spasm.

On the other hand, Associate Professor McPhee, a spinal surgeon, and Dr Jackson, a musculoskeletal specialist, who respectively assessed the plaintiff on 14 February 2007 and 2 March 2007, acknowledged the fact of the plaintiff's whiplash injury to her spine, but expressed the view that the injury consisted of aggravation of underlying degenerative changes to the spine rather than having caused frank disc injuries. In the case of the opinion of Associate Professor McPhee, he acknowledged that the plaintiff was in the category of a small group of patients who continue to suffer the long-term effects of such injuries.

In the context of this case, where I place a high value clinical advantage of the treating orthopaedic surgeon who first saw the plaintiff in the more acute phase of her injury and evolving disabilities, I nevertheless consider that it does not much matter whether the plaintiff suffered frank injuries to the affected discs of her spine or whether she had aggravated underlying degenerative changes in her spine. The effect has been the same, namely, resulting in pain, discomfort and restriction of movement in the neck and back, with associated radiating pain into the left shoulder and the left leg, along with reduced sitting, standing, walking, bending and related tolerances, including fitness for work.

In these circumstances, I do not see the conflict, such as it is, to be material so far as the cause and effect of he plaintiff's neck and back problems are concerned because, the simple fact is, since the subject collision, the plaintiff has these problems and the collision was the material contributing cause to these problems.

There is a conflict of opinion between Associate Professor McPhee and Dr Conrad as to other matters. Associate Professor McPhee was critical of Dr Conrad's opinion as to whether or not the plaintiff had suffered a shoulder strain as well as being critical of Dr Conrad's described or assumed examination technique. As to the shoulder problems, I do not consider it necessary to resolve the question of whether there was a strain or whether the pain experienced by the plaintiff was a referred or a radiated pain. The fact remains, the plaintiff has persisting discomfort in this area due to the injuries she sustained in the collision, which is the critical matter. If Associate Professor McPhee and Dr Conrad had been called to give oral evidence it may have been possible to explore and resolve these differences but this did not occur. In the result, I do not consider the area of disagreement between Associate Professor McPhee and Dr Conrad to be material.

Differences of opinion amongst the consultant psychiatrists

The defendants had submitted that as the plaintiff has not sought any treatment at all for psychological injuries, including medication, and no recommendation for treatment has been made by the more recent practitioner, the plaintiff could not have a serious psychological condition. The defendants submitted that if the plaintiff's psychological injuries were as serious as alleged, it would be expected, as a minimum, that there would have been at the very least, referral to some form of specialty in the area of psychology. The defendants further submitted that as this has not occurred over a lengthy period of time, this suggests that Dr Clark's diagnosis is unreliable for lack of symptomatology. In this regard the defendants submitted that the report of Dr Virgona should be preferred "in the light of the objective evidence of nil psychological treatment".

In contrast, the plaintiff points to the difference of opinion between Dr Clark and Dr Virgona and submitted, in effect, that the opinion of Dr Virgona should carry no weight because of his summary of the history. The plaintiff further submitted that the impression conveyed by Dr Virgona does not accord with the evidence.

It therefore becomes necessary to examine the basis for disagreement within the reports of the two psychiatrists who examined the plaintiff. On the one hand, Dr Clark assessed the plaintiff as having post-traumatic stress disorder, dysthymic disorder and depression as a result of the collision. On the other hand, Dr Virgona was of the view that the plaintiff was free of psychological symptoms and reported no impairment following the events of the collision.

Dr Virgona offered criticisms of the opinions of Dr Clark regarding his conclusions and diagnosis. It seems to me that the basis of the disagreement was the differing approaches these two experts seemed to have taken in their evaluation of the plaintiff. Whereas Dr Clark had diagnosed these conditions, Dr Virgona was of the view that the plaintiff was symptom free and reported no psychological impairment.

As neither of these two experts were called to give oral evidence to clarify and explain the basis upon which they had formed their opinions, the analysis of their competing views was limited to the confines of their respective reports, aided by the broader context of the evidence.

In the absence of explanatory evidence from these psychiatrists, the end point of the analysis that I have undertaken is that for the reasons that follow, I have found the reports and opinions of Dr Clark more persuasive and convincing than those of Dr Virgona.

At a glance

Court

Decision date

Before

Source

Judgment (347 paragraphs)

Parties

Cases Cited (17)