Moukahal v Zeait No 2

Credit 2The credibility of the plaintiff's claim concerning her residual symptoms was the subject of strident critical comments of disbelief contained in two reports from the defendant's medico-legal expert, Dr Anthony Lowy. The essence of those remarks was the assertion by Dr Lowy that the plaintiff was, in his opinion, "exaggerating and maximising her symptoms ... most if not all ... [of which] ... are contrived". 3Those remarks by Dr Lowy, which were adhered to in his oral evidence, stand to be evaluated against the evidence as a whole. However, the emergent difficulty for the defendant in relying upon that aspect of the opinion of Dr Lowy, is that such matters were not put to the plaintiff in cross-examination in order to provide her with a fair opportunity to address the criticisms that Dr Lowy had levelled at the credibility of her claim: Browne v Dunn (1894) 6 R 67. 4A further difficulty in the path of acceptance of the views of Dr Lowy on the credibility of the plaintiff's complaint of symptoms is that his reasons for disbelieving the plaintiff were not provided in his report in sufficient detail for there to be compliance with the Expert Witness Code, which required that the basis of each relevant opinion led by an expert be the subject of cogent reasons: Sch 7, cl 5(1)(c) to the Uniform Civil Procedure Rules 2005. 5I consider that the plaintiff gave restrained, truthful and reliable evidence. On the question of the nature and extent of the plaintiff's ongoing disabilities, and related matters, for the reasons set out in my judgment, I have preferred the opinions of Dr John Davis, an occupational physician qualified on behalf of the plaintiff, to the opinions within the evidence of Dr Lowy. 6Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised her complaints. I take those summaries to be evidence of her injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.

Facts 7In the paragraphs that follow, I set out my findings of fact on the plaintiff's background and her injuries. After reviewing and analysing the medical evidence called by the respective parties, I also set out my findings on the plaintiff's ongoing disabilities and the effects of those disabilities on matters relating to the plaintiff's claim for damages.

Plaintiff's background circumstances 8The plaintiff was born in Lebanon in 1958. She arrived in Australia in 1986. She is married and lives with her husband, her 4 children ranging in ages from 18 to 23 years, and her elderly mother-in-law. At the hearing she was aged 54 years. 9In Lebanon the plaintiff trained as a teacher of Arabic. In Australia, since January 2006, she has worked as a teacher of Arabic at the Al-Faisal College in Auburn, Sydney. She has completed all but one year of a Master's Degree in teaching from the University of Western Sydney.

Injuries and initial treatment 10As the liability issues have already been determined, there is no need to reiterate the factual circumstances of the accident. After the collision, the plaintiff's vehicle was spinning before it stopped. At that time she felt shocked. She later became aware of pains in her neck, her left shoulder and in her lower back. 11After the accident the plaintiff consulted her general practitioner, Dr Helena Ortiz, who referred her for physiotherapy treatment, which she received to her neck, left shoulder and lower back. The plaintiff also took painkilling medication for her accident related discomforts. The plaintiff has remained under the medical care of Dr Ortiz, who has referred the plaintiff to other medical practitioners for assessment.

Medical and allied assessments 12The defendant tendered as part of Exhibit "1", a copy of the clinical file of Dr Ortiz. Those notes show that the plaintiff consulted Dr Ortiz, and other doctors in her practice, from November 1992 onwards. Although the resultant handwritten clinical notes are difficult to read in their entirety, it would appear that before the subject accident, in 1995, the plaintiff was treated for myalgia or lower back pain in association with spondylosis as found on a lumbar x-ray taken at that time. The radiology report of that x-ray referred to the presence of spondylosis at L5 with a grade 1-2 spondylolisthesis of L5-S1. The records do not suggest the plaintiff's symptoms from that time were of anything other than short term in their duration. 13Dr Ortiz's handwritten clinical notes for the post-accident period refer to a history of back pain recorded on 11 May 2010, and a further note made on 2 August 2010 of a complaint of severe back pain following lifting things when moving house. 14The computer print out records of the consultations with Dr Ortiz for the period 20 January 2003 to the time of the accident contain a number of relevant entries. These include an entry on 22 April 2008, which refers to the plaintiff taking Mobic for joint pains, and an entry on 21 July 2009, which refers to left hip and lower back pain. These appear to have been transient problems. 15Following the accident, between 21 January 2010 to 7 November 2011, there were a number of consultations with Dr Ortiz, where accident related complaints concerning the plaintiff's neck, left shoulder and lower back were discussed: Exhibit "1", Tabs 4 and 8. At page 99 of Exhibit "1", Dr Ortiz prepared an historical list of what appears to be a sequence of post-accident prescriptions of painkilling medications that were issued to the plaintiff over time. 16On 8 March 2010, at the request of Dr Ortiz, the plaintiff underwent a CT scan of her cervical spine and an ultrasound study of her left shoulder. The radiologist reported the presence of early spondylitic changes in the mid-cervical spine at the level of C4/5 without other abnormalities. The left shoulder ultrasound was reported to show some bursal thickening overlying the supraspinatus muscles. This was interpreted as being in keeping with bursitis. 17On 13 July 2010, at the request of her solicitor, the plaintiff was examined by Dr Davis who prepared a report of that consultation on 14 July 2010. Although Dr Davis noted it was difficult to see the axial alignment of the plaintiff's spine because of her veil, his examination through that garment showed reasonable alignment of her neck but revealing tenderness at C4/5 level, both centrally and bilaterally in her neck. He found active extension movements were restricted by one quarter. He also detected tenderness in the lumbar spine over the L4/5 vertebrae, and to a greater degree, over the lumbosacral spine in the midline. 18Dr Davis reviewed the imaging investigations and he concluded that the plaintiff had suffered a jarring trauma that had been superimposed upon some early asymptomatic degenerative changes in the cervical spine and injury to the pseudo fibrous joints over the pre-existing underlying pars interarticularis defect in the plaintiff's lumbar spine and surrounding soft tissues. Dr Davis also identified a left shoulder tendinosis and bursitis with a degree of impingement point, all of which was consistent with the plaintiff's history of trauma. 19Dr Davis gave oral evidence in which he adhered to the matters he set out in his report. The defendant sought to criticise Dr Davis' evidence on account of the method by which he had altered the terms of his report dated 14 July 2010. 20That criticism arose because, in the first version of his report, on page 3, Dr Davis set out the following opinion concerning the plaintiff's earning capacity: "She has lost no time from her employment and I believe that she will be able to continue with her current employment until normal retirement age." 21Dr Davis provided a further report of the same date, which was identical to the first report of that date except for the addition of some further text which is emphasised in the quotation which follows: "She has lost no time from her employment and I believe that she will be able to continue with her current employment until normal retirement age albeit that her work capacity is reduced and her comfortable tolerance would be to 30 hours per week." [Emphasis added] 22Dr Davis explained that the additional text was added after the solicitor for the plaintiff had telephoned him to ask him to reconsider that aspect of his report to deal with whether he believed the plaintiff would work to normal retirement age on a full time basis: T92.33. He readily acknowledged that in hindsight, this additional text would have been better provided by way of a supplementary report, in compliance with the Expert Witness Code: UCPR, Sch 7 cl 5(4). 23The fact that the plaintiff's solicitor requested that an expert witness reconsider an aspect of a report is not of itself remarkable, particularly, for example, if it was thought that the report did not deal with a relevant issue upon which the solicitor had instructions. 24Dr Davis explained that in his practice he has provided a good number of medico-legal reports. He is not the person responsible for the typing or the archiving of reports. It was plain from the explanatory evidence of Dr Davis that the question asked of him by the plaintiff's solicitor was a fair matter for discussion between the instructing solicitor and the reporting expert. It is also apparent that the additional text did not amount to a change of opinion, but rather an expansion following further consideration of the subject matter. The changes had not been brought about by the solicitor asking Dr Davis to change his report in a particular way, but simply after asking him to reconsider an aspect of his opinion. I accept Dr Davis' evidence on those matters. 25I reject the suggestion that Dr Davis failed to provide an independent opinion on the issue. Whilst in hindsight it would have been better if Dr Davis had prepared a supplementary report, it appears that this was a clerical matter of oversight that was also not picked up by the plaintiff's solicitor when he received the second version of the report dated 14 July 2012. 26Both versions of Dr Davis' report were served on the defendant. I infer from this, that there was no intention on the part of the solicitor for the plaintiff to conceal the earlier version of the report of Dr Davis. 27I shall return to a further consideration of the report and the oral evidence of Dr Davis after I have set out my consideration of the evidence given by Dr Lowy. 28On 28 July 2010, at the request of Dr Davis, the plaintiff underwent a functional and vocational assessment carried out by Ms Gill Myburgh, a physiotherapist, and Ms Carter, a psychologist. 29The functional assessment carried out by Ms Myburgh revealed the plaintiff had difficulties maintaining tolerance for activities such as standing, walking and driving. In addition, problems were reported by the plaintiff with activities such as bending, lifting, carrying and reaching above shoulder height. The plaintiff also reported an inability to carry out the majority of her domestic tasks and of feeling frustrated by her changed circumstances. Significantly, Ms Myburgh reported that the plaintiff was co-operative with all activities requested of her. This view was at odds with the subsequent opinion of Dr Lowy in respect of his examination of the plaintiff undertaken some 11 weeks later. 30Ms Myburgh identified the work restrictions recommended for the plaintiff as being minimal handling of materials, no frequent or constant standing, walking or driving, no bending, squatting, kneeling or reaching overhead or above shoulder height or at low levels, trunk postures being limited to no more than 30 minutes and minimal whiteboard writing, namely, less than 10 minutes at a time. Ms Myburgh noted the plaintiff's history of having struggled with some of her duties as a teacher. 31Ms Carter's psychological assessment of the plaintiff noted the plaintiff suffered significant symptoms of depression, anxiety and stress. Ms Carter identified some psychological barriers to the plaintiff seeking some other employment if she was forced to stop teaching. 32Dr Davis, Ms Myburgh and Ms Carter all made treatment recommendations for the plaintiff. I shall refer to that evidence in my assessment of the plaintiff's damages for future treatment. 33On 31 August 2010, Mr Philip Camden, the treating physiotherapist, reported to the CTP insurer, Allianz Insurance Australia, that he had been treating the plaintiff between 3 February 2010 and 19 August 2010. He expressed the view that the plaintiff had sustained a musculo-ligamentous strain of the neck and lower back, with impingement syndrome of the left shoulder. He was of the view the plaintiff's condition should stabilise within 12 months following her injury, but that ongoing symptoms may persist due to pre-existing degenerative changes in the spine and because the plaintiff had a pars interarticularis defect at the level L5/S1. There is no evidence to suggest that defect was the cause of any symptoms in the plaintiff before the subject accident. Neither is there any sound reason for inferring that this defect would have caused the plaintiff symptoms in the short term even if the accident had not occurred. 34On 4 October 2010, at the request of her solicitors, the plaintiff was assessed by Ms Carolyn Grinter, an occupational therapist. 35The occupational therapy assessment of the plaintiff by Ms Grinter revealed some reported restrictions with the activities reported upon by Ms Myburgh. After reviewing the range of household tasks listed on page 3 of her report, at pages 5 and 6 of her report, Ms Grinter identified an accident related need for the plaintiff to be provided with domestic assistance with housework, shopping and window cleaning. Her recommendation for domestic assistance was for a core of 6 hours per week, plus some additional seasonal recommendation. 36On 11 October 2010, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Anthony Lowy, a consultant in occupational medicine. Dr Lowy took a negative view of the veracity of the plaintiff's complaints. He concluded, on the basis of the absence of pathology on x-ray, and in the absence of abnormal findings on his limited palpation of the plaintiff's spine and shoulders through her soft silk veil, that her presentation, meaning her complaints of pain, was inconsistent with his findings on physical examination of the plaintiff. 37Dr Lowy therefore concluded that the plaintiff was contriving, exaggerating and maximising her symptoms. He characterised the plaintiff's claim for domestic assistance as "spurious" and rejected any physical basis for her claim for loss of earning capacity. Dr Lowy was of the opinion that the plaintiff's soft tissue strain injuries sustained in the accident were likely to have healed over the four to six weeks post-accident and by the end of February 2010. His analysis allowed no scope for the acceptance of the prospect that the plaintiff had ongoing accident-related pains or restrictions. 38The opinion of Dr Lowy was in stark contrast with the opinion of the consulting neurosurgeon who saw the plaintiff at the request of the plaintiff's treating general practitioner. 39On 26 October 2010, a little over 2 weeks after Dr Lowy had examined the plaintiff, at the request of Dr Ortiz, the plaintiff was examined by Dr Balsam Darwish, a neurosurgeon and spinal surgeon. The focus of that consultation was a consideration of the plaintiff's neck pain and lower back pain, and her associated problems of radiated limb pains from her neck and her back. Following that consultation, Dr Darwish wrote to Dr Ortiz in the following terms: "The MRI scan of the lumbo-sacral spine dated 18 September 2010 showed Grade 1 L5/S1 spondylolisthesis secondary to bilateral L5 pars defect and bilateral L5/S1 foraminal stenosis with compression of both L5 nerve roots in the foramina. MRI scan of the cervical spine on the same date showed disc bulges at C4/C5 and C5/C6 level but no obvious nerve root or cauda equina compression. I am going to start Bassema on Lyrica 75mg twice per day and Mobic 7.5mg twice per day. I encouraged her to continue with the physiotherapy for her neck and back. I told her that if her back and leg symptoms do not improve in due time, she will need to have L5/S1 laminectomy, discectomy and fusion. I will review her in six weeks time." [Exhibit "1", Tab 8, p 108] 40Clearly, Dr Darwish accepted the plaintiff's complaints concerning her neck and back symptoms. I infer that he would not have considered offering the plaintiff surgery if he was of the same opinion as Dr Lowy concerning the genuineness of the plaintiff's complaints. 41The plaintiff said she did not want to consider surgery to her spine and she therefore did not consult Dr Darwish again. There is no evidence that surgery to the plaintiff's lumbar spine is considered to be a present necessity. 42Dr Ortiz referred the plaintiff to Dr Michael Mock, a specialist in musculoskeletal medicine. On 30 December 2010, Dr Mock wrote to the plaintiff's general practitioner in the following terms: "Thank you for referring Mrs Moukahal for a medical musculoskeletal assessment and management. I saw her today in the presence of her son and she gave history of MVA 12/12 ago with ongoing left sided neck shoulder and posterior arm pain, midline mid and lower back pain, left lateral buttock pain spreading to left heel. Due to cultural reasons she was not willing to expose the relevant regions for examination even with chaperone. Under the circumstances I did not feel I could be of service because I could not make a diagnosis based on static and dynamic examination. It would also be impossible for me to treat her with manual therapy. I have therefore asked her to return to your office for referral to female manual therapist." [Exhibit "1", Tab 8, p 109] 43There is no evidence that the plaintiff attended for assessment or treatment by the female therapist nominated by Dr Mock. 44On 4 July 2011, at the request of the Motor Accidents Authority, the plaintiff underwent an assessment by the Medical Assessment Service ["MAS"] in respect of her musculo-ligamentous injuries, by Dr Gregory McGroder. He accepted that the plaintiff had sustained soft tissue injuries to the neck, lower back and left shoulder. He, like Dr Lowy, examined the plaintiff through her hijab. He stated that his physical findings were similar to those of Dr Lowy. After applying the MAS assessment guidelines, Dr McGroder determined that the plaintiff had no Whole Person Impairment for the purposes of determining whether she was entitled to claim damages for non-economic loss. 45The defendant relied upon an aspect of Dr McGroder's examination in order to cast doubt upon the veracity of the plaintiff's presentation during that examination. In this regard, at page 6 of his report, Dr McGroder stated that he believed the plaintiff had produced an inconsistent range of movement of her left upper extremity during his examination of her. In his report, it is noted that Dr McGroder gave the plaintiff the opportunity to comment upon this observation. 46The plaintiff's recorded explanation for these apparently differing observations by Dr McGroder, was that they were as a result of her experiencing increasing pain throughout the examination in question on account of the movements that were required of her in that examination. The defendant submitted this evidence undermined the credibility of the plaintiff's claim. Without more, I do not consider this to be the case, as the plaintiff's cited response was not inherently untrue or glaringly improbable. As the issue was not taken up in the evidence of any of the doctors who gave evidence, I consider the cited portion of Dr McGroder's report to be of benign significance from the perspective of an assessment of the plaintiff's credit. 47On 12 September 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Lowy for a second time. Dr Lowy said of this further examination that the plaintiff's history was essentially the same as before. He adopted his earlier formulation and went on to say that the plaintiff presented as a normal pain free woman without apparent signs of distress. He further stated that the plaintiff's "whole person abnormal pain behaviour appears static and may well be lifelong". 48Dr Lowy gave oral evidence. There was a minor discrepancy between his reports and his oral evidence concerning the amount of time he took to examine the plaintiff. In his oral evidence, at T86.7, he stated his examinations of patients for medico-legal purposes never take less than 60 minutes. At page 6 of his report dated 11 October 2010, he referred to the consultation taking 60 minutes. At page 3 of his report dated 12 September 2011, he referred to the time spent interviewing the plaintiff as being 30 minutes. 49In this case, medical experts of like specialty gave differing opinions on the genuineness of the plaintiff's complaints of ongoing pain and discomfort. Dr Lowy's opinions to the effect the plaintiff was exaggerating and contriving her symptoms cannot stand together with the contrary view taken by Dr Davis. Their respective examinations of the plaintiff were just 11 weeks apart. 50When Dr Davis, who was present in court when Dr Lowy gave evidence, was asked whether he gained the impression at his examination that the plaintiff was exaggerating or contriving her symptoms, he said that was not his impression: T110.17. 51Both Dr Davis and Dr Lowy took broadly similar histories. They both had the clinical disadvantage of examining Mrs Moukahal through the silk garment of her hijab. Both doctors obviously felt they had conducted a reasonable examination for the purpose of forming their opinions. 52It appears that Dr Lowy has rejected the veracity of the plaintiff's ongoing complaints of symptoms on the basis of his view that the natural history of soft tissue injuries of the kind suffered by the plaintiff is that they heal within a matter of some 4 to 6 weeks. In taking that approach he appears to have based his opinion on the absence of "palpable paravertebral muscle guarding or spasm" and by that process, he appears to have discounted if not rejected the plaintiff's complaints, to focus on objective matters only. On the other hand, Dr Davis thought the plaintiff's complaints and his findings on physical examination of her were consistent. 53It seems to me that apart from the inherent scepticism stated within the view that Dr Lowy took of the plaintiff's presentation, an essential difference between the two experts was the way in which they viewed the plaintiff's underlying degenerative pathology as seen on the imaging scans. 54At Dr Lowy's first examination of the plaintiff he noted the availability of x-rays (at page 1 of his report dated 11 October 2010) and quoted from the ultrasound, CT and MRI imaging (at page 4 of his report dated 11 October 2010). He focussed on the lack of objective evidence of injury. 55At Dr Lowy's second examination of the plaintiff he considered the imaging evidence in the following terms: "I note the reported radiological changes in the MRI of cervical spine and MRI of the lumbosacral spine on 18 September 2010 [i.e., multilevel cervical spondylosis; also L5 spondylosis with 5mm spondylolisthesis; all long-standing degenerative disease of spine with no relation to the MVA of January 2010.' [Exhibit "1", Tab 1 p 4] 56In my view the key to understanding Dr Lowy's evidence is his statement that the plaintiff's longstanding degenerative disease has no relationship to the accident in question. By stating that view, unlike Dr Davis, he appears to have made no allowance for a traumatic aggravation of underlying but asymptomatic degenerative changes in the injured portions of the plaintiff's spine so as to render these areas symptomatic. 57It is that factor, together with the corroborative and uncritical opinion of Dr Darwish, which had not been provided to Dr Lowy by the defendant that leads me to prefer the opinions expressed by Dr Davis, to those expressed by Dr Lowy. 58As a consequence, I do not accept Dr Lowy's opinion that the plaintiff exaggerated and contrived her symptoms. Instead, I accept the evidence of Dr Davis that the plaintiff's complaints were consistent with his findings. That view also accords with my own view that the plaintiff gave her evidence in a reasonable, understated and non-exaggerated manner, without contrivance.

Disabilities 59The plaintiff has ongoing problems of pain and discomfort in her neck, her left shoulder and in her lower back. She experiences these problems when sitting for prolonged periods, including when driving, which she does for a half to one hour on school days, depending upon the traffic. These problems also become more manifest with activity and when she is required to write on a whiteboard during the course of presenting classes at school, and when sitting at the computer for prolonged periods, particularly at the end of her working day. 60In the years before the subject accident the plaintiff had experienced what she described as some slight back pain for which she took occasional medication, but she stated, and I accept, that such back pain was of a slight character, and not as sharp as the pains she experience in her back since the accident. Clearly, the accident has had a significant effect upon the plaintiff's amenity and enjoyment of life (for which no damages are awardable) and upon her employment and her domestic activities (for which damages are claimable).

Employment effects 61In addition to the plaintiff's experience of physical discomfort in the classroom due to her accident related neck, shoulder and back problems, she is concerned that her difficulties will prevent her from completing a master's degree in teaching before an imposed deadline of 2015. Her concern is that if she does not achieve her master's degree by that date, she will lose her teaching position. 62A review of the materials produced by the Al-Faisal College concerning the plaintiff's employment as a teacher at that college does not reveal any direct basis for a claim for loss of earnings or loss of earning capacity: Exhibit "1", Tab 9. The plaintiff's resume within those records shows she has an impressive number of diplomas and certificates issued by institutions both in Lebanon and in Australia. She has been in a full-time teaching position with that college since 30 January 2006. Her full-time position was confirmed in an updated staff information document in 2011. 63There is no information produced by the plaintiff's employer that would tend to suggest the plaintiff's continued employment is at risk on account of her present level of qualifications, or due to her ability or inability, to carry out her full duties as a teacher. However, the plaintiff makes a claim for loss of earning capacity based upon her own assessment of her ability to cope with her work duties and in conjunction with the medical evidence concerning her earning capacity. That claim is also supported by the assessments of Ms Myburgh, Ms Grinter and Dr Davis.

Domestic effects 64The plaintiff has difficulty performing domestic tasks that she was able to do without difficulty before her accident. She lives in a four-bedroom house with a lounge room, dinning room, a kitchen, a laundry and two bathrooms. Her husband has been unable to assist with those tasks since he was injured in about 1993. She did most of the domestic tasks before her accident. 65Since the accident, she has difficulty cleaning, cooking, preparing large meals for the family, vacuuming, dealing with the washing, carrying items and shopping. Now she has to receive assistance from her daughter and others for these tasks.

Mitigation 66The plaintiff has an obligation to mitigate her damage: s 136 of the MAC Act. The evidence discloses that she has sought medical and physiotherapy treatment and she has continued to work. I do not consider that anything of relevance turns on the fact that the plaintiff has not yet followed Dr Mock's recommendation that she consult a female musculoskeletal therapist on account of cultural considerations of modesty. In a multicultural society this is to be expected as being within the range of reasonable and acceptable responses to injury where there is no treatment imperative. Nor do I consider her desire not to pursue a surgical option, to amount to a failure to mitigate on the evidence presented. I consider that the plaintiff has adequately discharged her duty to mitigate, and there have been no submissions to the contrary.

Assessment of damages 67The parties made starkly polarised submissions on the plaintiff's entitlement to damages. On behalf of the defendant, it was submitted that this case was within the category of rare cases where there should be no award of damages at all. In this regard, the defendant submitted that all consultations, investigations and treatment undertaken by the plaintiff since the accident were medically unnecessary, therefore no losses have relevantly arisen, and therefore, there are no assessable damages that call for an award in favour of the plaintiff on any of the claimed heads of damage. In contrast, on behalf of the plaintiff, it was submitted that there should be an award of damages of the order or $225,000. 68As the plaintiff did not meet the Whole Person Impairment threshold of more than 10 per cent, she is not entitled to damages for non-economic loss: s131 of the MAC Act. In the paragraphs that follow, I set out my assessment of the heads of damage in respect of which she makes claims for compensation.

Plaintiff's probable life span 69In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age 54 years, the plaintiff has a probable life span of 34 remaining years. There is no reason to assume that her ordinary working life would be foreshortened by early mortality.

Past loss of earnings 70In final submissions, the plaintiff did not argue a claim for damages for past loss of earning capacity as the evidence did not support such a claim. I therefore make no award for past economic loss. 71The plaintiff's employment records show that she appears to be presently in receipt of an annual salary of $65,057.27 gross, which equates to $32.92 per hour before the deduction of tax. These figures equate to approximately $1000 per week net or $25 per hour net. The plaintiff's wage records show this has been her salary level, without increment, for the past 6 years, since 2005.

Future loss of earning capacity 72The plaintiff makes a claim for future loss of earning capacity in the submitted amount of $84,439. That sum was based upon an assumed projection of an amount of $200 per week net at 5 per cent over a period that is a little short of 13 years (on a stated multiplier of 496.7) less 15 per cent for possible adverse vicissitudes. In contrast, the defendant submits there should be no allowance for future loss of earning capacity on the basis that the evidence does not justify such an award. 73The starting point for an assessment of the claim for future loss of earning capacity must be an assessment of the plaintiff's most likely future circumstances, but for the accident. 74In considering the plaintiff's steady employment history and her dedication to her profession over a long period of time, including in the post-accident period, I consider it is most probable that if the accident had not occurred, the plaintiff would have continued in her employment with the Al-Faisal College, and she would also have proceeded to obtain her master's degree as planned: s 126 of the MAC Act. 75I also accept that it is the perception of the plaintiff that she feels that she is under some pressure from her employer to complete her master's degree in order to keep her employment secure, although there is no sound basis upon which to conclude that her employment has been, or is at present, under any threat, if she does not complete that degree. 76That said, I accept that since her accident, and as a result of her injuries and disabilities, the plaintiff now finds the activities of her full-time work and the associated travel, tiring. This, in conjunction with the medical evidence, requires an evaluation of the prospect that the plaintiff might lose income in the future. She is presently aged 54 years, and has a remaining working life of 13 years to age 67 years, if not beyond that time. 77I have already indicated my acceptance of the assessment of Dr Davis to the effect that the plaintiff's work capacity is in some measure reduced on account of her symptoms, and that her comfortable tolerance would be more like 30 hours of work per week. Those observations are to an extent borne out by the assessments undertaken by Ms Myburgh and Ms Grinter. Whilst I have accepted that evidence, this does not necessarily equate to a finding of a loss of earning capacity of the remaining 18 or 20 hours of the plaintiff's working week. 78In my view, based upon the plaintiff's perseverance with her work to date, it is possible, but not very likely, that in the near future, unlike in the longer term, she would find it necessary to reduce her working hours on account of the considerations identified by Dr Davis. There is no compelling basis from within the evidence that would suggest such a circumstance of reduced working hours is likely to arise in the short to medium term. 79In this regard, I have also considered the views of Ms Carter, who is of the view that if the plaintiff were to have to consider a change in her employment, for example, if she found the physical tasks of her work discomforting, she would be psychologically ill-prepared for such a change, although the potential for the plaintiff to derive alternative income from private tutoring was identified. This would have always been something the plaintiff could have pursued if she wanted to do so in any event. 80In the described circumstances, I consider the most appropriate method of compensating the plaintiff for potential loss of earning capacity along the lines identified by Dr Davis is to award her a buffer amount that would cushion her against the prospect of such a loss of earning capacity crystallising over the coming years so as to produce a financial loss. In these circumstances, it is very difficult to assess compensation on a precise basis, so a buffer is the preferred method: State of New South Wales v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. 81Also included within the array of considerations for awarding the plaintiff an economic buffer is the possibility that if for any reason, the plaintiff felt the need to change her employment, either as a result of pressure form her employer to upgrade her qualifications in the manner she described, or because she found the physical requirements of her work, such as driving and writing in the classroom, increasingly intolerable, she would be at a real disadvantage in seeking alternative less demanding employment in the labour market, including as a teacher. In those circumstances, it is likely she would suffer loss of earning capacity, but this prospect would be some years away, and there are many imponderables associated with the monetary assessment of such a prospect. 82In these circumstances, I consider that an appropriate economic buffer would be an amount of $25,000. To test the reasonableness of this sum, it can be seen to be the equivalent of a loss of 2 hours per day at $25 per hour net, for 5 days per week, or $200 net per week, projected over the last 5 years of the plaintiff's working life to age 67 years (x 231.5) and discounted by 15 per cent for potentially adverse vicissitudes, and then deferred for 8 years to recognise it is a future loss not yet crystallised (x 0.677), which yields an amount of $26,643. In my view, that comparison, whilst not forming the actual basis of the award, nevertheless serves as a useful measure of reasonableness. I therefore award the plaintiff damages in the form of an economic buffer amount for future loss of earning capacity in the sum of $25,000.

Past domestic assistance 83The plaintiff makes a claim for past domestic assistance in the sum of $21,756. That claim was based upon an assessment of the value of 6 hours per week at the statutory rate prescribed by s 128 of the MAC Act over 140 weeks to date. 84In my view, the plaintiff's description of her difficulties with housework, which I accept, taken together with the evidence of Dr Davis, Ms Myburgh and Ms Grinter, justify an award of 6 hours per week of domestic assistance from the date of the accident until the time of the hearing. I therefore propose to allow that claim. 85The mandatory requirement of s 128 of the MAC Act is that such damages should not exceed the rate that is prescribed by statute. The Appendix to these reasons calculates the value of that claim to be in the sum of $21,021.42. 86I therefore award the plaintiff damages for past domestic assistance in the sum of $21,021.

Future domestic assistance 87The plaintiff makes a claim for future domestic assistance. That claim was initially submitted in the amount of $100,000, which was based upon the projection of the value of 6 hours per week at $36.30 per week over 34 years (x 865.9). In submissions, the plaintiff conceded that if this claim was allowed, it should be recalculated at the statutory rate: Miller v Galderisi [2009] NSWCA 353. 88Consistent with my findings concerning past domestic assistance, I am satisfied that the need for such assistance will continue for the 6 hours per week identified in the evidence. 89However, for several reasons, I do not propose to allow the claim for the remainder of the plaintiff's probable life span, as claimed. The medical evidence does not suggest that the plaintiff's need for such services will be lifelong. The plaintiff had underlying degenerative changes in her spine which may well have produced a need for such services in the future in any event, and finally, as her family circumstances change in the future, as they undoubtedly will, the need for such services will be very likely to decline below the statutory threshold of 6 hours per week. 90To accommodate those factors, a limit needs to be placed on such future damages. Although it may appear to be somewhat arbitrary, I consider that a further 5 years would be a reasonable allowance for such damages. 91Accordingly, projecting the current statutory hourly rate of $25.65 for 6 hours per week ($153.90) over 5 years at 5 per cent (x 231.5). This yields the amount of $35,627.85. This amount requires discount by a conventional 15 per cent on account of potentially adverse vicissitudes. Accordingly, the discounted sum is $30,283. 92I therefore award the plaintiff damages for future domestic assistance in the sum of $30,283.

Future out-of-pocket expenses 93The plaintiff makes a claim for future out-of-pocket expenses in the amount of $16,391. That sum was based upon some six elements of anticipated recurring future expenditure and some assistive equipment, as identified in the reports tendered on behalf of the plaintiff. 94Given the nature of the physiotherapy and other treatment and medical investigations the plaintiff has had to date, I consider that a claim for future out-of-pocket expenses is reasonably made, but not in the quantum submitted. 95The plaintiff takes a variety of prescribed and over the counter medications for her post-injury discomforts. These include Mobic, Panadeine Osteo, Lirica and Panadol. These medications cost her approximately $60 per month. The plaintiff will obviously need to continue to take medication and see her doctors intermittently, and for some time. 96For the same reasons the plaintiff's claim for future domestic assistance has been limited to a period of a further 5 years, namely, the likely progression of her underlying degenerative changes to become asymptomatic, I consider the plaintiff's claim for future treatment should also be limited, but to a progressively declining degree over the ensuing decade. 97The assessment of damages for future treatment in those circumstances cannot be undertaken precisely. For that reason I consider that a buffer sum should be awarded for future treatment. In the circumstances, I consider that a reasonable buffer amount would be $7500. 98I therefore award the plaintiff damages for future out-of-pocket expenses in the sum of $7500.

Past out-of-pocket expenses 99The plaintiff makes a claim for past out-of-pocket expenses in the amount of $3164.50. 100Having regard to the clinical records of Dr Ortiz, the fact that the plaintiff has had physiotherapy treatment and other medical investigations, I consider the amount claimed by the plaintiff to be reasonable. 101I therefore award the plaintiff damages for past out-of-pocket expenses in the sum of $3164.50.

Summary of damages assessment 102My assessment of the plaintiff's damages is summarised as follows: (a) Past loss of earnings $Nil (b) Future loss of earning capacity $25,000 (c) Past domestic assistance $21,021 (d) Future domestic assistance $30,283 (e) Future out-of-pocket expenses $7,500 (f) Past out-of-pocket expenses $3,614.50 Total $87,418.50

Disposition 103The plaintiff is entitled to a verdict in her favour in the amount of $87,418.50. That verdict must be reduced by 20 per cent to allow for and apply the contributory negligence finding already made at the conclusion of the separate trial of the liability issues: Moukahal v Zeait [1012] NSWDC 33. The resultant judgment amount will therefore be $69,934.80.

Costs 104As the plaintiff has succeeded in the proceedings, it follows that the defendant should pay the plaintiff's costs on the ordinary basis, unless and in the absence of evidence of disentitling factors, otherwise ordered.

Orders 105I make the following orders: (1) Verdict for the plaintiff in the amount of $87,418.50; (2) After apportionment for the plaintiff's contributory negligence which has been assessed at 20 per cent, judgment for the plaintiff in the sum of $69,934.80; (3) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (4) The exhibits may be returned; (5) Liberty to either party to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO MOTOR ACCIDENTS ACT 1999, s 128 [6 hours per week] PERIOD WEEKS WEEKLY HOURLY AMOUNT s.128 s.128 FOR 6 HOURS RATE RATE PER WEEK

1. 17.01.2010 to 19.02.2010 04.71 $969.40 $24.23 $684.73
2. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $1907.45
3. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $1920.05
4. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $1898.97
5. 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $1920.56
6. 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $1976.84
7. 21.05.2011 to 20.09.2012 69.57 $1026.00 $25.65 $10,706.82 TOTAL $21,021.42

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2012