Nuhic v Orahim

Nature of case 1The plaintiff, Mrs Zineta Nuhic, claims damages against the defendant, Mr Sargoon Orahim, for injuries she received in a motor vehicle accident that occurred on 2 May 2007. The insurer of the defendant has admitted liability for the collision. The plaintiff claims that in the collision she suffered injuries to her neck, both shoulders, chest and lower back, and as a result has suffered physical and psychological problems. The proceedings concerned the assessment of the plaintiff's entitlement to damages.

Issues 2The damages issues that arose in the proceedings may be conveniently summarised as follows: Issue 1 : The determination of the plaintiff's likely pre-existing state of health before the collision in question; Issue 2 : The nature and extent of any injuries the plaintiff received in the collision, including the treatment received, and the residual disabilities. The case for the defendant was that within a short time after the collision in question, the plaintiff had returned to her pre-injury state of health; Issue 3 : The extent to which the plaintiff should be awarded damages as a consequence of the injuries received in the 2007 collision. 3The context of the above issues is that the plaintiff had a complicated history of prior injuries, disabilities and claims for personal injury, for both physical and psychological harm from two previous road traffic accidents, a fall, two assaults, and from her reaction to having consumed some contaminated food. She suffered injury in all instances. The evidence revealed that she had obtained previous awards of compensation in all instances except for the road traffic collision, which was second in time, and in respect of one of the assaults, and for one of the falls. It appeared from the plaintiff's medical records that some of these matters were minor, and were not explored in evidence in the proceedings. The evidence also disclosed that prior to the 2007 accident, the plaintiff had a pre-existing vulnerability to suffer physical injury to her spine, as well as a vulnerability for psychological injury.

Summary of findings 4The plaintiff's claim for damages was vigorously contested by the defendant. For the reasons I have outlined, I have rejected the attack made by the defendant on the plaintiff's credit. I have found that by the time of the 2007 accident, the plaintiff had largely recovered from the acute effects of her previous accidents and relevant injuries to the extent that she suffered only occasional episodes of pain which were becoming less frequent. I have found that in the 2007 accident the plaintiff sustained injury to her neck, shoulders, back and chest, and as a result, she continues to suffer severe lower back pain. I have found that these problems have caused the plaintiff to develop a major depression and adjustment disorder, for which she requires ongoing psychiatric treatment, in addition to needing treatment for the consequences of her physical injuries. I have found that the plaintiff is entitled to an award of damages, but for an amount which was less than the amount claimed. I have assessed those damages in the amount of $190,441.50 .

Assessed heads of damage 5The plaintiff made a claim for 7 heads of damage. In the opening address of counsel for the plaintiff, the quantum of the claim was in the identified amount of $411,286.40. In closing submissions that claim was amended to a reduced sum of $291,417.90. The heads of damage claimed by the plaintiff, and the damages submissions by the parties, are listed below, together with the paragraph references to my assessments of the various heads of damage claimed: Head of Damage claimed by plaintiff Plaintiff's Submissions Defendant's Submissions Award Paragraphs (a) Economic loss $50,000 $Nil $50,000 [345] - [361] (b) Past domestic care $48,070 $Nil $50,389 [362] - [411] (c) Future paid care $116,550 $Nil $48,615 [412] - [423] (d) Future medication $36,687.20 $Nil $10,000 [424] - [431] (e) Future medical treatment $11,673.20 $Nil $3,000 [432] - [436] (f) Pain management course $5,000 $Nil $5,000 [437] - [440] (g) Past out-of-pocket expenses $23,437.50 $4,057 $23,437.50 [441] - [448] Totals $291,417.90 $4,057 $190,441.50

Procedural ruling 6During the course of oral submissions, where the psychiatric evidence that was tendered on behalf of the plaintiff was being analysed, counsel for the plaintiff came to realise that a letter from the plaintiff's treating psychiatrist, Dr Milorad Sokolovic, dated 28 April 2010, which had previously been served on the defendant in accordance with the rules, had been omitted from the listed schedule and bundle of medical reports tendered as Exhibit "B". On behalf of the plaintiff, Mr Jobson sought leave to reopen the plaintiff's case in order to tender that letter, stating that the omission had been an oversight, and that the letter was an important part of the plaintiff's case. 7On behalf of the defendant, Mr Guihot objected to that course as the plaintiff's case had already been closed. He stated that on behalf of the defendant he had approached the task of cross-examination of the plaintiff on the basis that the letter in question from Dr Sokolovic was not going to be tendered, contrary to earlier indications. He indicated that this forensic approach had been taken when the indexed bundle of reports relied upon by the plaintiff was handed to the defendant's legal representatives shortly before the hearing had commenced. 8That difficulty would most likely have been identified earlier and the problem avoided, if there had been compliance with the practice direction given at call-over, which required the schedule of reports to be served on the opposing party three days before the hearing. 9After hearing submissions on the plaintiff's application to re-open, I allowed that application on the condition that the plaintiff was to be made available for further cross-examination on the issues raised by the admission into evidence of the letter in question from Dr Sokolovic. Because the hearing time had been extended by that course, and the case was no longer able to be completed in the allotted time, the plaintiff conceded that any additional costs arising from the course proposed, should be borne by the plaintiff, and I so ordered. 10At the time I made those orders, in view of the time constraints that then prevailed, I indicated I would include my reasons for admitting the additional evidence from Dr Sokolovic when delivering my reasons for judgment in the proceedings. My reasons for allowing the application are as follows. 11First , I considered that it would be inappropriate, contrary to accepted principles, and potentially unfair to both parties, if the additional evidence of Dr Sokolovic was excluded, because this would mean that his evidence was left in an incomplete state, instead of being admitted in its entirety. Secondly , the evidence in question was relevant, and clarified a matter I had raised in argument with counsel for the plaintiff, and went some way towards explaining an otherwise unexplained hiatus that had been identified in the evidence concerning the plaintiff's psychiatric history, which could have led to an incorrect and therefore unjust result in the evaluation of the credibility of the evidence of the plaintiff, and the probity of the opinions of Dr Sokolovic in considering the matter. Thirdly , on behalf of the defendant, Mr Guihot fairly conceded that the defendant was not able to point to any prejudice with regard to the course proposed by the plaintiff, with the possible exception as to costs, which I considered would be adequately accommodated by the order for costs that I ultimately made when the application was allowed. 12As events transpired, I considered that Mr Guihot had appropriately availed himself of the opportunity to further cross-examine the plaintiff on the additional material. I considered that the content of that further cross-examination of the plaintiff demonstrated that in the circumstances, no unfairness or prejudice to the defendant had arisen. Dr Sokolovic was not required for cross-examination on either the previously admitted reports that were included in Exhibit "B", or on his more recently admitted letter that became Exhibit "M".

Credibility of testimony 13The defendant challenged the credibility of the testimony of the plaintiff. It was put that the plaintiff had exaggerated the extent of the effects of the 2007 motor vehicle accident in the hope of securing a larger amount of compensation for damages than was her more limited entitlement, as was contended by the defendant. 14It was also put to the plaintiff that within a few months following the occurrence of the accident, she was in a condition of health very much as she was in before that accident, and that she was at that time able to carry out her housework and her domestic chores, and any work she might have been able to perform before the 2007 motor vehicle accident, if she had been inclined to do so. 15Those challenges required an assessment of the plaintiff's credibility as a witness, and required an analysis of the medical reports and records that were tendered in the proceedings. That assessment was complicated by a number of matters. 16One such matter was the defendant's submission that the plaintiff had selectively described the injury effects of the several accidents and the difficult circumstances which she has unfortunately encountered over many years. The challenge was to the effect that the plaintiff had downplayed or minimised the effects of those earlier events in order to seek to maximise the potential verdict she stood to obtain in these proceedings. 17A difficulty in assessing the plaintiff's evidence as to the nature and the extent of her disabilities that were due to the accident in question, was the fact that she had consulted different doctors for her post-2007 accident complaints, as distinct from those doctors who had been treating her shortly beforehand. This was in circumstances where she had not changed her address at the time of her 2007 accident. The plaintiff's explanation for having taken that course, was a stated desire to keep questions of injury due to her 2007 accident separate from her general medical needs. 18On that issue, I found the plaintiff's stated reasons for taking that course were unusual, but not glaringly improbable so as to necessarily require rejection, which was the implication of the defendant's submission. 19Significantly, there were no medical reports tendered from the practitioners who had previously assessed and had treated the plaintiff for her pre-2007 injuries. There was no evidence to the effect that her previous treating doctors in respect of those earlier injuries, were unavailable. The absence of those reports was surprising, given that the plaintiff had pursued a number of prior claims for compensation, and was able to call upon some of her retained records in relation to one of those claims, for example, the material that had been provided to Dr Sokolovic, which he had, to a degree, extracted and included in his initial report. 20In cases like this, where a witness gives evidence through an interpreter, it is well settled that caution is required in determining credit issues by reference to considerations of demeanour. This is especially so in this case where unchallenged evidence is that the plaintiff suffers from a diagnosed psychiatric illness where her affect, which was plainly observed to be flat at the time she gave evidence, could possibly have been influenced by that illness. In that regard, it was not made clear as to whether the plaintiff's affect could have in any way been influenced by the taking of any of the medications, for example, the benzodiazepine Ducene, an anxiolytic prescribed as a muscle relaxant, as explained by Dr Sokolovic. Speculation on that matter was not appropriate without medical evidence. 21Another feature of the case which requires that demeanour be considered to be of diminished value in assessing credit is that some clues to credibility, including non-verbal behaviour whilst in the witness box, may also have a cultural determinant which could be misleading, or could lead to unfair conclusions when making an analysis of credibility: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187, per Ipp JA at [21]. 22For those reasons, I have substantially disregarded demeanour considerations as a means by which to assess the credibility of the plaintiff's testimony. 23The limited extent to which I have had regard to the plaintiff's demeanour in order to assess her credit as a witness was her at times tearful manner of responding to questions. I considered that her albeit translated responses in those circumstances were reasonable and appropriate to the circumstances. She was upset when giving her evidence but I did not consider this was to the extent of being histrionic. This suggested to me that the general tenor of her translated evidence was sincere and not exaggerated. 24Although the evidence disclosed the plaintiff had pursued some TAFE studies, most recently in 2007, aimed at improving her proficiency in the English language, I did not consider her use of an interpreter in the proceedings, to be unreasonable in the circumstances, given the importance of the litigation to her. 25My overall conclusion from the plaintiff's evidence was that she was genuinely injured. On first examination, in the light of her history of prior injuries, the extent of her injuries was difficult to determine from her oral evidence alone, without reference to tendered medical reports. This was because of the absence of historical material in the form of detailed medical evidence as to the effects of prior accidents upon her. Nevertheless, the assessment of the evidence and the issues had to proceed upon the basis of the material that the parties had produced as evidence. 26For the reasons I have set out in the analysis of the evidence of the plaintiff, and the medical evidence, I have rejected the submission to the effect that the plaintiff had exaggerated the effects of the 2007 accident. A review of the tendered medical and allied evidence leads me to conclude, for the reasons I have identified in the course of that review, the plaintiff's evidence in these proceedings, as explained through that medical evidence, was sufficiently reliable to warrant acceptance. After reviewing the medical records of the plaintiff's various general practitioners, I formed the view that material served to persuade me to accept the plaintiff's account of the effect the various injuries had upon her over time. Accordingly, I did not accept the submission that the plaintiff had recovered from the effects of the 2007 accident within a short time of its occurrence. 27I have otherwise stated the reasoning behind my various credit findings in the context in which those findings arose for decision in connection with my consideration of the relevant issues and sub-issues that emerged from the evidence.

Overview of evidence 28In addition to the oral evidence of the plaintiff, the plaintiff's daughter Ms Plema Nuhic also gave evidence as to the nature of the plaintiff's post-injury problems and with regard to the claim for domestic assistance. A former employer of the plaintiff, Mr Ivan Spehar was called to support the basis of the plaintiff's claim for future loss of earning capacity. The plaintiff's past earnings and work history were impressively documented by a bundle of supporting materials: Exhibit "D". Mr Spehar's correspondence to the plaintiff's solicitor was also tendered: Exhibit "4" and Exhibit "5". I did not consider the slight variance between Mr Spehar's oral evidence and his correspondence comprising those exhibits to be significant, given the passage of time. 29The plaintiff tendered a bundle of reports from treating and assessing doctors and allied practitioners: Exhibit "B". That bundle was augmented by Exhibits "M" and "N", following the grant of leave to re-open the plaintiff's case during final addresses. The defendant tendered a bundle of reports from doctors who have assessed the plaintiff for the purpose of this litigation: Exhibit "1". 30The parties tendered an array of other documentary exhibits which included the handwritten clinical records of the plaintiff's treating general practitioners: Exhibit "C", Exhibit "2" and Exhibit "7". I shall refer to these documents when stating my findings where it is relevant and necessary to do so. 31None of the reports tendered in these proceedings were from practitioners who had either seen or who had treated the plaintiff before her injury on 2 May 2007. None of the medical or allied witnesses from whom reports were obtained were called to give oral evidence, nor had they been required to be cross-examined on their opinions. This made the task of assessing the differing medical and allied opinions more difficult for the purposes of determining which opinions or body of medical evidence should be preferred, where relevant differences arose, and where a concluded view of those matters had to be formed.

Facts 32In the paragraphs that follow, I set out my findings of fact concerning the relevant chronological events that unfolded as the background to this claim. In doing so, I set out my findings of fact concerning the plaintiff's personal circumstances, her previous health and work history, the events of the collision and the resultant medical and allied assessments. I have considered all of the exhibits and I have drawn upon them, as well as upon the oral evidence, for the purpose of identifying those findings of fact. Where these findings have resulted from the resolution of factual controversy within the evidence, I have identified the relevant controversy along with my reasons for the resolution of any such controversy, where it was relevant to do so.

Plaintiff's personal background and work history 33The plaintiff was born in Bosnia Herzegovina in 1956. She completed her secondary schooling there to age 17 and then undertook a course at a catering college in her hometown of Bihac, and then subsequently worked in a retail position in Bosnia. She migrated to Australia in 1980. Her first marriage was in 1978. She and her first husband arrived in Australia in 1980. The plaintiff is an Australian citizen. The first marriage ended in separation in 1981, followed by divorce in 1985. She married her second husband in 1989, and from that marriage there is a daughter presently aged 22 years and a son presently aged 14 years. The plaintiff's husband is presently in poor health. 34In the early years following her arrival in Australia, the plaintiff worked for several years as a cleaner, and then as a shop assistant in a butcher's shop. The plaintiff tendered a bundle of material dating back to 1981 to document her work history, which I considered to be an impressive retention of personal records in the circumstances. 35Since 2004 the plaintiff has been in receipt of a carer's pension as she has been the carer for her husband, who is 14 years her senior and who has been in a poor state of health since 2002. As a result he does not significantly contribute to the tasks required in running the home. 36At the time of her injury in 2007, the plaintiff was not in actual employment. She said she had earlier applied for work with her former employer, Mr Spehar, who was the proprietor of a significantly sized butchery, grocery and smallgoods manufacturing and retail outlet in the western suburbs of Sydney. The plaintiff had worked for Mr Spehar as a packer and helping hand. Before her accident in 2007 the plaintiff had applied for work with Mr Spehar. He told her he would let her know when a position became available. When that opportunity later arose, the plaintiff was not able to take up an offer of employment from Mr Spehar due to the effects of her injuries from the 2007 accident. A trial of work as a packer and stacker in May 2009 proved unsuccessful because the plaintiff was in pain and needed frequent rests, and was unable to cope with the work. The surrounding circumstances of Mr Spehar's offer of employment will be more closely examined in connection with my consideration of the claim for economic loss.

Plaintiff's previous health and injury history 37The plaintiff has had a series of incidents in her past that have to varying degrees, resulted in injury and disability. In the paragraphs that follow I have identified the chronological order of the plaintiff's previous injury related history. 38The plaintiff had a motor vehicle accident in 1983 in which she injured her neck and her lower back. Those injuries were later aggravated by a further motor vehicle collision in 1984. 39In 1993, the plaintiff slipped and fell in the bathroom of a McDonald's restaurant, injuring her back and her coccyx. Relevant to that incident the defendant tendered a treating doctor's report incorporated within a Department of Social Security form dated 8 March 1995. There it was stated that on 26 September 1993, the plaintiff had been involved in a fall in which she injured her head, neck, back, right hip and shock. That certificate indicated the several diagnoses of concussion, together with neck and back strain. The certificate also stated that the plaintiff had an early unspecified disc bulge, right hip pain, headache, chronic neurosis and depression: Exhibit "6". 40On 8 November 1993 the plaintiff had also fallen down some stairs and had injured her chest and lower back. 41In 1996, the plaintiff was the victim of an assault, which comprised serious threats of harm, including death to herself and to members of her family. This caused the plaintiff to suffer a psychological injury, which resulted in a diagnosis of post-traumatic stress disorder [PTSD]. The details of those events are set out in the Determination of the Victims Compensation Tribunal dated 17 November 1998, which was annexed to a medical report, Exhibit "M". 42In 1998 the plaintiff suffered an adverse psychological reaction to an unpleasant experience where she found the breakfast cereal she had been eating had been contaminated by worms, which went on to her face. This caused her to become sick and vomit. She sought treatment from Dr Sokolovic for the ensuing psychological problems, and she stated that these problems resolved after treatment. 43In 2003, the plaintiff complained to her general practitioner, of an assault upon herself and upon her daughter by three neighbours: Exhibit "2". The details of the assault were not explored in evidence. The only evidence of that assault was as set out in the clinical notes kept by one of her general practitioners, Dr Mohammed, who also noted a history that on this occasion the plaintiff had fallen down and had injured her right foot and ankle. Dr Mohammed recorded the findings on his examination of the plaintiff with regard to that incident on 6 June 2003 to the effect that the plaintiff had a swollen right ankle and foot in the region of the lateral malleolus, which was felt to have been very tender, and requiring the plaintiff to use crutches. This injury did not feature in the oral evidence either in chief or in cross-examination, and it only appeared in Dr Mohammed's handwritten notes. It was not the subject of consideration by any other doctor whose reports were in evidence. 44With the exception of the 1984 motor vehicle accident, the 8 November 1993 fall down some stairs, and the 2003 assault, the evidence is that the plaintiff made claims for, and had received, monetary compensation for each of the other events I have outlined above. No adverse inferences were said to arise from those circumstances. 45It was against this background, that the plaintiff's injuries with which the present proceedings are concerned, must be viewed. Before addressing those questions, it is relevant to examine the circumstances of the accident.

Events of the collision 46At about 9.15am on Monday 2 May 2007, the plaintiff was seated in the driver's seat of her stationary vehicle at red traffic lights on the Hume Highway at Lansvale, NSW, when her vehicle was struck from behind by another vehicle. That impact was the last of three impacts in a series of rear end collisions that occurred at the scene. At the time, the plaintiff was to a degree thrown about in the cabin of her vehicle although she had been restrained by her seatbelt. She was shocked at the occurrence of the accident, and declined the offer of an ambulance at the scene because she just wanted to get home. There was resultant damage to the rear of her vehicle. 47In these circumstances, I consider that it would be unsafe to assume, as one of the defendant's reporting medical experts has assumed, that the collision had only involved a minor impact. The conclusion of that expert appears to have been based upon the statement of a Mr Mustapha Taha, whose statement was given to that doctor for his consideration. However, that statement, or any similar evidence, did not feature in the evidence tendered in the proceedings. I shall return to this topic in my consideration of the assumptions made by the defendant's medical experts when setting out my reasons for preferring one body of conflicting medical evidence over the other. 48In order to determine the nature of the plaintiff's injuries and disabilities from the 2007 accident, a detailed review of the medical evidence must be undertaken, in view of the arguments mounted by the parties.

Medical and allied treatment and assessments 49The plaintiff did not seek out medical advice or treatment until 3 days after the collision, 5 May 2007, when she consulted a general practitioner, Dr K Hamid, who prescribed Voltaren and Ducene. He has overseen her treatment since that time. One of the defendant's medical experts considered, unwarrantedly in my view, that this delay in seeking medical assessment was indicative of the plaintiff having received only minor injuries. 50The medical evidence tendered in the case for the plaintiff was as follows. There were two letters from Dr Hamid as well as his handwritten clinical notes, 15 short reports from the late Dr Grahame Mahony, an orthopaedic surgeon who treated the plaintiff at the referral of Dr Hamid, until he became ill and ceased practise, two letters from Dr M Guirgis, an orthopaedic surgeon who took over the treatment of the plaintiff from Dr Mahony, a report from the former treating psychiatrist, Dr M A Chaudhary, and two reports and a clarification letter from Dr M Sokolovic the psychiatrist who took over the management of the plaintiff's psychological problems. There were a number of radiological investigation reports and a report from Ms L Smith, an occupational therapist engaged by the solicitor for the plaintiff. The plaintiff tendered some discharge summaries relating to her attendances at Liverpool Hospital in 2008. The plaintiff also tendered two reports from Medical Assessment Assessors, Dr G McGroder, an occupational medicine specialist, and Dr A Virgona, a consultant psychiatrist. 51The medical evidence tendered in the case for the defendant comprised four reports from Dr R Lewin, a consultant psychiatrist, four reports from Dr L Pierides, a consultant occupational physician, and an occupational therapy assessment by Ms A McLaughlin. The defendant tendered a report from Dr G Walker, a neurologist who saw the plaintiff in 2008 at the request of her treating general practitioner, Dr Hamid. The defendant also tendered a report on a related CT brain scan report that had been arranged by Dr Walker. 52The defendant also tendered copies of the handwritten historical clinical records of Dr Mohammed and Dr Jakovac, who were at various stages before the accident in question, the general practitioners who had treated the plaintiff: Exhibits "2" and "7". 53The first issue that arises for determination in the proceedings is the identification of the plaintiff's most probable state of health at the time of the collision on 2 May 2007. The resolution of that issue is the essential pre-requisite for then determining the nature and extent of the injuries sustained by the plaintiff in the 2007 accident which is the subject of these proceedings.

Issue 1 - Plaintiff's state of health before the 2007 accident 54A difficulty in making an objective assessment of the plaintiff's state of health prior to the 2007 accident is the absence of medical reports from treating and assessing doctors concerning the pre-2007 period in which other injuries had been sustained. Such reports would have assisted in gaining an insight into the plaintiff's state of health, and any residual impairments that might have continued to affect her as a result of earlier injuries and the problems that related to the 1983, 1984, 1993, 1996, 1998 and 2003 incidents. 55The assessment of the plaintiff's pre-2007 health status must therefore be determined by an evaluation of the plaintiff's own evidence, the evidence of the plaintiff's daughter, along with a detailed evaluation of what is available from within the histories and opinions that are recorded in the various medical reports and clinical records that are available for consideration. 56The defendant submitted that there were significant doubts about the reliability of the plaintiff's evidence as to her pre-2007 health status. The defendant argued there were doubts concerning the reliability of the histories assumed by the medical practitioners who had provided reports in these proceedings. The defendant argued for the conclusion that the plaintiff had not discharged the onus of proof of lasting disability for which damages should be assessed, as is required by s 5D and s 5E of the Civil Liability Act 2002. 57It therefore becomes necessary to undertake a detailed review of the historical assumptions recorded in the various medical reports tendered in the case for the plaintiff in order to compare the summaries of history prepared by the authors of those reports when setting out their respective opinions, with the evidence of the plaintiff. That process would then enable an assessment as to whether these histories formed a reasonable basis upon which to make findings on the underlying issue of the plaintiff's state of health, but also having regard to the cautionary considerations referred to by Basten JA in Mason v Demasi [2009] NSWCA 227, at [2]. 58The focus of that review is a consideration of the plaintiff's own account of her pre-2007 symptoms and problems that had remained with her as a result of those pre-2007 incidents. 59The starting point of the analysis for that consideration is the following summary of the assumptions as to the plaintiff's pre-2007 health status as recorded by the doctors who have provided reports that were tendered in the case: (a)The report of Dr Hamid dated 26 November 2010 recorded a summarised history that the plaintiff's pre-2007 condition had been stable, and she had not suffered pain and discomfort for many years before the 2007 accident; (b)The report of Dr Mahony dated 11 September 2007 described the plaintiff as having been pain free from the previous accidents for at least 10 to 12 years; (c)The report of Dr Chaudhary dated 12 February 2009 reiterated the plaintiff's history that although her previous accidents had resulted in injuries to her neck, her shoulders, her arms and her back, she had been pain free from those problems for at least 10 to 12 years until the accident in 2007; (d)The 2 July 2008 MAS report of Dr McGroder recorded the plaintiff's history that she was pain free at the time of the 2007 road traffic accident; (e)The 14 September 2010 MAS report of Dr Virgona did not deal with the detail of the plaintiff's physical condition immediately before the 2007 accident, as his focus was a psychiatric examination; (f)When the plaintiff was interviewed by Dr Lewin on 6 July 2010 at the request of the defendant, he recorded that she had told him that she had not required analgesia or antidepressant medication in the years prior to the motor vehicle accident in 2007, however, the focus of his examination was also centred upon the psychological consequences of the plaintiff's injuries; (g)When the plaintiff was interviewed by Dr Pierides on 22 November 2007 at the request of the defendant, he recorded that she had told him something to the effect that she had recovered from the prior injuries by the time of the 2007 accident. (h)The plaintiff's case was that the first report of Dr Sokolovic properly summarised the plaintiff's health and disability situation before the 2007 accident in the following terms: "As time passed [before her 2007 accident], Zineta's general health condition gradually improved. Her psychosocial functioning approached its previous levels, and with encouragement from her husband she was successfully involved with various studies at her local Tafe (sic). She also became involved with her children's school, contributing to parental meetings. These improvements continued, ..." 60The above quotation went on to deal with an incorrect assumption as to the plaintiff's work status, which is not necessary to reproduce here, and which I shall address in analysing the evidence of Dr Sokolovic. 61In essence, in submissions, the defendant pointed to the impression gained from the above summary, to the effect that the plaintiff had given consistent histories of having recovered from the effects of her pre-2007 injuries, to the extent that there were no further symptoms in the lead-up to the 2007 accident. The defendant challenged the notion that any ongoing problems were due to the effects of the 2007 accident. The defendant submitted this was a matter that should be taken into account when assessing the credibility of the evidence of the plaintiff, so as to compel the conclusion that the plaintiff's evidence as to her history should not be accepted. 62In contrast, on behalf of the plaintiff, it was argued that the above approach taken by the defendant was overly simplistic, as it was necessarily an approach based on summarised histories. The plaintiff submitted that the proper approach was to assess the entire evidence on this point, including the evidence of the plaintiff and her daughter, for a more balanced assessment, in order to arrive at a proper understanding of the plaintiff's pre-2007 state of health. I accept that submission as reasonable. 63It is therefore necessary to compare the summarised histories as recorded by the abovementioned doctors with first, the plaintiff's own evidence, and secondly, such pre-2007 medical material as exists, in order to assess whether, in reality, the opinions tendered in the plaintiff's case should be rejected as being based on an incorrect factual foundation. The answer to that question will determine whether those reports have any utility in assessing the nature and extent of the plaintiff's injuries and disabilities that arise from the 2007 accident. 64Accordingly, the review of the evidence on this issue should commence with the plaintiff's oral evidence of the effects of the various incidents in which she had been involved. Ultimately, at the end of that review, and the review of the other evidence, the issue is whether the plaintiff's account of her pre-2007 history should be accepted. 65In her evidence in chief, the plaintiff described how, following the 1983, 1984, and 1993 injuries she had variously sustained, her symptoms had settled after time had passed. 66The plaintiff stated that in 1983 she had injured her upper spine, her low back, both legs and both shoulders. She did not suggest that she had fully recovered from those injuries by the time she came to be injured in the 1984 accident, in which she stated that she had injured her right leg and her back. She said that at the time of the 1984 accident, she had still been having problems with her back, and those problems had continued into 1985 and 1986. She further stated that those problems had then improved, but that she still had pain in those areas from time to time. 67The plaintiff said that before the 1993 fall in the bathroom at the McDonald's restaurant, when she had injured her back, her back had been " good ". When asked what she meant by that expression, she said she had wanted to say that she was not in pain everyday. She further explained that she sometimes had pain in the lower back or in the neck or in the right shoulder. 68This latter description of the plaintiff's level of pain up to 1993 seems to be consistent with the plaintiff having worked at Ivan's Butchery for some months in 1992 to 1993, where she was engaged in activities serving customers, cleaning and placing meat into big refrigerators. It seems to me to have been unlikely that the plaintiff would have been engaged in such work activities if she had continued to have been significantly affected by ongoing neck, back, shoulder or leg pain. It was the fall in 1993 that made her cease that employment at Ivan's Butchery. 69The plaintiff went on to say that after each of the accidents that had occurred in 1983, 1984 and 1993, her back pain had been severe and after her fall in 1993, her back pain had been constant until about 1995. The plaintiff went on to say that after 1995, she was never completely pain free in her back, and " was in pain maybe two or three times a year ". In that context, I did not take that to be a precise counting of occasions on which she experienced symptoms of back pain. Rather, I considered it to be more of an estimate because of her use of the qualifying word " maybe ". 70The remainder of the plaintiff's description of her health between 1995 and 2010 related to psychological matters. These related to some death threats she had received in 1996, and the psychological problems she had experienced following the discovery of worms in her breakfast cereal, in the incident she described as occurring in 1998. 71In her evidence in chief, the plaintiff gave no further evidence of her pre-2007 health status other than to say that by the time she had decided to seek work in 2007, she was having no further problems with her back, and " not really " having any further problems with her neck. The plaintiff was not asked any questions about the effects on her, of the 8 November 1993 fall, which was different to the fall at McDonalds, or about the 2003 assault. 72When the plaintiff's evidence on these matters was tested through cross-examination, I did not see it as having been relevantly contradicted. 73In cross-examination on her prior history, the plaintiff did not concede that she had told Dr Mahony that she had been free from neck and back pain for the previous 10 years. Instead, she maintained that in that time, from time to time, she had pain in the neck and in the back. When pressed on this subject, she said she could not remember precisely what she had told Dr Mahony, but she maintained that she had told him she sometimes experienced pain in the neck and the back. 74When pressed further on this topic, the plaintiff denied she had withheld telling Dr Mahony about her experience of neck and back pain at the time she first consulted him in My 2007 in order to avoid disadvantaging her current claim for compensation. In that context, she stated she could not hide the pain, and felt she had nothing to hide. 75In considering the probity of that answer, I considered it was most probably a true statement because, in the Motor Accident Personal Injury claim form which is the subject of these proceedings, the plaintiff identified her treating doctor in respect of her 1983 injuries: Exhibit "3", question 34. In my view, that disclosure was inconsistent with the plaintiff seeking to hide information as was suggested, if for no other reason, the subpoena process would be likely to be revealing of her prior history. 76Similarly, the plaintiff denied withholding information from Dr Hamid concerning her experience of neck and back pain between 1999 and the time of her accident on 2 May 2007. She said she would have told Dr Hamid of such things if she had been asked about them. I accept the plaintiff's evidence in that regard as it seemed inherently plausible, and there was no demonstrated reason from within the evidence that persuaded me I should doubt the veracity of that evidence. 77The plaintiff said she did not think she had told Dr Chaudhary she had been free from neck and back pain for 10 to 12 years before the 2 May 2007 accident. However, the plaintiff fairly conceded the possibility, although she did not think so. Her actual answer was " I don't - maybe, I don't think so, maybe ." She went on to query why she should be motivated to conceal historical information from Dr Chaudhary when she had gone to see him for his help. I considered that her response was a genuine expression of disagreement with the proposition put to her in cross-examination. She denied that such a concealment had occurred, and she also denied that she had concealed such matters in order " not to hurt " her claim for compensation. Again, I consider her answers along these lines, to be plausible, believable and not relevantly contradicted. 78When the plaintiff was pressed about her experience of back pain after her 1993 fall in the bathroom at McDonalds, she stated that she had experienced back pain which " came maybe two or three times a year and that's it ". She was adamant that the back pain from the fall had recovered after time had passed, and she was left with the experience of back pain two or three times per year, lasting maybe eight days, and then decreasing until it went away. This is an issue of some importance and is one to which I will return when examining the records of Dr Mohammed, her pre-2007 accident general practitioner, as those records formed an important cornerstone in the defendant's attack on the credibility of the plaintiff's testimony. 79The plaintiff also said that when she was seen by the occupational therapist, Ms Smith, she thought she had told Ms Smith " everything about - as far as I could remember ". 80The plaintiff said she told Dr Mahony that in 2007, she had problems with her neck and her back from time to time before the 2007 accident, whereas after the 2007 accident, those pains were not the same as before, and were constant, whereas that was not the case before the 2007 accident. The plaintiff repeatedly made the point that the pain she had experienced after the 2007 accident was a completely different type of pain to the pain she had experienced before that accident. She said that the previous pains she had experienced would " go away after several days " which was completely different to the present pains she was experiencing, and which were constant in character. 81When challenged over whether she had not told any doctor that the neck and back pain she had in the period before the 2007 accident was made worse by the 2007 accident, she replied that she had not known it was " necessary to mention all these minor pains, minor things, just the major ones ". She went on to develop that evidence by stating: " Yes I do have pain and severe pain after previous accidents, but then eventually the pain settle down, so actually then it wasn't as strong so I didn't think it was necessary to mention to doctors it is not that strong ". I did not consider that evidence to be shown to have been inherently or glaringly improbable so as to require rejection, either when taken on its own, or when read in the context of the pre-2007 medical records. 82On the subject of what history she had given to Dr Hamid after the 2007 accident, the plaintiff gave the following evidence: "Q. Okay. Let me put it this way. Did Dr Hamid ask you to tell him how you were before you had the car accident or did he just ask you to tell him what the effects of the car accident you claimed to be? A. INTERPRETER: I really have no idea what he asked. He just examined me and prescribed some medication and I left. Q. At any stage when you have continued to see Dr Hamid from 5 May 2007 up to November of last year, at any time in that period did you tell Dr Hamid that you'd been in three motor vehicle accidents, the last being in 1984, but that you had fully recovered and had no symptoms? Was that something you ever told Dr Hamid? A. INTERPRETER: I'm very confused, I don't know why. HIS HONOUR Q. Well, let me ask you this question, Ms Nuhic. Dr Hamid has prepared a report dated 26 November 2010. In that report, he said you had a history of three previous motor vehicle accidents. A. WITNESS: Yeah. Q. He said that the last accident before 2007 was in 1984. INTERPRETER: Sorry, you said 84. HIS HONOUR: 84. INTERPRETER: So sorry, my mistake. WITNESS: (Through interpreter) Yes. HIS HONOUR Q. And from the way he's written his report, he attributes to you the history that you fully recovered from the previous accidents and without symptoms at the time you had your 2007 accident. My question is: is that an accurate summary that coincides with what you told him? A. INTERPRETER: Your Honour, but do you think it is necessary for me, say, to mention if I would occasionally have some - have some pain, to let him know-- Q. My question was: was it an accurate summary? A. INTERPRETER: I did tell him that I had had three accidents. Q. Did you tell him that you were without symptoms before the 2007 accident? A. INTERPRETER: I may have, I don't know." 83In my view, the concession which formed part of that last answer in that series of questions is not one that I consider would ordinarily be expected to be given if the plaintiff had been engaged in a process of concealment, as was submitted by the defendant. If there had been concealment, I would have expected a denial instead of the answer that was recorded. 84At the time the plaintiff gave the evidence I have summarised and extracted in the preceding paragraphs, my impression of her evidence on these matters was that it was given without guile, and was given without any intention to mislead, or for the purpose of improving her case. 85Nevertheless, before forming a concluded view, it remains necessary to examine the historical medical records kept by the plaintiff's general practitioners in the pre-2007 period in order to assess the likelihood of the plaintiff's evidence being correct. 86The records of Dr Jakovac were tendered by the defendant as Exhibit "7".They comprised copies of handwritten pages of medical notes of consultations between 30 March 1993 and 20 June 1995. For the purpose of submissions the defendant was requested to provide a copy of those notes with yellow highlighted markings to identify the entries relied upon: MFI "5".The notes covered the period during which the plaintiff was noted to have resided in Auburn and then St Marys. 87The first relevant highlighted entry, the fourth notation in time, is on 28 April 1993, and relates to the plaintiff's fall on spilt water on the floor at a restaurant. The narrative describes the history of the plaintiff having fallen on her back, hitting her head, and having lost consciousness. The areas of the right rib cage, the neck, low back and right hip were noted as being the sites of medical interest in that consultation, presumably because of pain in those areas. I interpret the notes of Dr Jakovac as showing, in order of mention in the notes, that on examination of the plaintiff, she was found to have some right parieto-temporal and occipital lumps on her head, with swelling, tenderness of the right front lower ribs, a bad headache, low back, right backside and hip pain, and a stiff neck. 88The defendant pointed to a number of entries in the notes of Dr Jakovac between 28 April 1993 and 20 June 1995 to demonstrate that the plaintiff was affected, variously, with back problems, right leg problems, neck problems, sleeping difficulties, dizziness, vertigo, anxiety, distress and depression. Those notes showed various referrals and prescriptions of treatment and medication. 89In my view, on reviewing those notes, apart from revealing an additional injury on 8 November 1993, which was not explored in oral evidence, where it was noted that in that incident, the plaintiff had fallen on some stairs, and had injured her left lateral chest cage and her lower back, there was nothing within those notes that contradicted the plaintiff's evidence as to being largely in pain from her 1983 and 1984 accidents before the restaurant fall in 1993, and continuing to have pain from the restaurant fall in 1993 for some time after that fall. Specifically, when properly understood, these notes do not contradict the history summarised by Dr Mahony, to the effect that the plaintiff was free of pain for about 10 to 12 years before the 2007 accident. 90A copied portion of the handwritten clinical notes of Dr Mohammed, another pre-2007 treating general practitioner, was tendered as Exhibit "2". For the purpose of submissions the defendant was requested to provide a copy of those notes with yellow highlighted markings to identify the entries relied upon: MFI "4". The notes comprised handwritten medical notes of consultations between an unknown date in December 2002 that had been obscured during copying, to 21 April 2011. 91For the purposes of analysis, it is convenient to identify three relevant periods that were evident in those notes, the first being between December 2002 and 22 April 2007, which pre-dated the 2007 accident, the second being for the notes of entries between 11 May 2007 and 14 October 2008, which related to the post-2007 accident period, and the third being between 25 March 2011 and 21 April 2011. 92The significance of the first period within Exhibit "2" is that in the 52 months between December 2002 and April 2007, of the 150 consultations the plaintiff had with Dr Mohammed in that period, the defendant highlighted 29 of those consultations as being relevant to the assessment of the plaintiff's evidence as to her account of her pre-2007 state of health. 93When those 29 highlighted entries were examined in detail, on a year by year analysis, it is evident that there were 3 consultations in the last month of 2002, 7 consultations in 2003, 6 consultations in 2004, 3 consultations in 2005, 6 consultations in 2006, and 2 consultations in the first 4 months of 2007, that were said to relate to physical problems to do with areas of the plaintiff's body that had been injured in her pre-2007 accidents. This evidence was a useful point of comparison for the plaintiff's oral evidence to the effect that by the time of her 2007 accident, her experience of back problems had reduced to several times per year. 94On a closer examination of those notes of Dr Mohammed, some entries highlighted by the defendant related to headaches without annotation as to the apparent cause, and which could not therefore be reasonably said to be due to any prior injury, some entries related to an allied health care plan which dealt not only with a plan for the arrangement of 4 physiotherapy treatments for neck and back pain, but also for the apparently non-related issue of a dietician consultation. There also were several unexplained references to left shoulder pain. 95Significantly, in respect of the two consultations referred to by the defendant as having occurred in February 2007, just 3 months before the May 2007 accident, contrary to the defendant's submission, these consultations are shown on analysis to be completely irrelevant to the issues in this case. 96In that context, the recorded complaint of myalgia, or muscle pain, was noted to be queried as being possibly secondary to the medication Ezetrol, and for which Feldene was prescribed, and which was highlighted by the defendant as being relevant, apparently turned out to be related to a side effect of the plaintiff's cholesterol medication. In that regard, a reading of the note for 7 January 2007 reveals the plaintiff was noted to have been intolerant to statins, an anti-cholesterol medication, and on 23 February 2007, the prescription for Ezetrol was stopped so that repeat testing for blood lipids and for CK enzyme or creatinine kinase could be carried out. It was noted that the following month the plaintiff's CK reading had gone down from 600 to 311, and the plaintiff's cholesterol reading had gone up from 5.5 to 6.5, presumably due to cessation of anti-cholesterol medications. That interpretation is confirmed from the note concerning the plaintiff's condition of hyperlipidaemia that was made by Dr Mohammed on 25 March 2011. 97Nothing of substance turns on these details other than it appears that the defendant had misread the significance of Dr Mohammed's notes in respect of this detail, and had therefore made a submission that overstated the significance of the mention of myalgia in the notes on the issue of assessing the reliability of the plaintiff's evidence on the matter of her pre-2007 state of health. 98The significance of the second period in Exhibit "2" is that of the 11 consultations noted in that period, the defendant highlighted 8 of them as being relevant to the assessment of the plaintiff's evidence as to her post-2007 state of health, whereas an examination of the notes made on the occasion of those 8 appointments shows that the plaintiff's evidence has not at all been embarrassed by those notes. The highlighted portions of the notes refer to problems with earache, blood lipids, infections and dysuria, and not to any apparent accident related problems. 99In that regard, the true significance of that part of those notes is that they confirm that the plaintiff had been seeing another medical practitioner for her accident related problems as she had said in her evidence, as was confirmed by Dr Mohammed's note in his own records on 25 March 2011. 100The significance of the third period in Exhibit "2" is that in 2011, the plaintiff consulted Dr Mohammed in order to obtain confirmation as to the content of his notes, as is clearly stated on the last page of those notes. An obvious inference is that the plaintiff took that course with a view to preparing herself for giving evidence in this case. The point is not necessarily adverse to her credit and goes nowhere. There is no need for me to speculate as to whether this was as a result of something that had been intimated to her by her legal advisors or otherwise. The related matter of the absence of any report from Dr Mohammed is another issue altogether. 101The plaintiff tendered a copy of the handwritten notes of the most recent of her treating general practitioners, Dr Hamid: Exhibit "C". Those notes commenced with an entry on 5 May 2007, which referred to the accident in question that occurred two days previously. In the paragraphs that follow, I set out my interpretation of the notes made by Dr Hamid. 102The first note made by Dr Hamid recorded the plaintiff's complaints of neck pain, shoulder pain, chest wall pain, and lower back pain following the accident. At that time, the findings of examination recorded restrictions of the neck, back pain, giving rise to the impression of a whiplash injury. Voltaren, and Ducene, a benzodiazepine, were prescribed, as was physiotherapy for the neck. 103On 7 May 2007, the plaintiff's condition was said to have been unchanged, and she was referred to physiotherapy. On 9 May 2007, the plaintiff's complaints of neck pain and insomnia were recorded, and further medications were prescribed. On the next consultation, the date of which was obscured by the document copying process, it is recorded that the plaintiff had reported no change in her pain and that physiotherapy was not helping. In August 2007 a record was made of a complaint of epigastric pain whilst the plaintiff was taking Voltaren. In November 2007 a complaint was recorded to the effect that the plaintiff was still having lower back, neck and shoulder pain. At that time it was noted that she had consulted Dr Mahony, who had ordered imaging studies. It was noted that the plaintiff had been complaining of vomiting, dizziness and nausea, and some other indecipherable complaint, for which a CT brain scan was ordered. 104In December 2007 a note was made that the plaintiff's brain CT scan was reported as being normal. Dr Hamid had recorded that the plaintiff had complained of being very tired, having headaches, was sleeping poorly and had nightmares. At that point it appears that she was referred to a psychologist. There was no report tendered from that psychologist. 105On what appears to be either 30 January or February 2008, the plaintiff was referred to Dr Chaudhary for her complaint of severe depression. On 28 March 2008, it was noted that the treatment plan for the plaintiff was to prescribe Zoloft for her. 106It is not clear on the documentary evidence as to whether the above summary covers the entire range of consultations the plaintiff had with Dr Hamid, or only represented a selection of them. 107Following my review of the evidence of the plaintiff, and the evidence I have summarised in the preceding paragraphs, aided by my consideration of the available medical evidence including the evidence I have reviewed in connection with my consideration of Issue 2 , I have concluded that at the time of the 2007 collision, the plaintiff had either recovered from, or had largely recovered from, the effects of her earlier injuries. This was to the extent that she no longer required regular or frequent medical attendances for treatment for the physical and psychological effects of the earlier injuries and incidents that she had incurred in the period before her injury in the accident on 2 May 2007. 108I find that was so except for the occasional short-lived flare-up of symptoms which had a pattern of receding after a number of days, as was described in the evidence of the plaintiff, which I accept. I also accept the evidence of the plaintiff to the effect that the pain she continues to experience from the effects of the 2007 accident is of an entirely different nature, intensity and duration to the problems of that kind which she had previously experienced. I also find that before the plaintiff's 2007 accident the plaintiff's previously documented and treated psychological problems had settled down to the degree that she no longer required psychiatric treatment or assessment.

Issue 2 - Injuries, treatment and disabilities caused by 2007 accident 109In order to reach a conclusion on the nature and extent of the plaintiff's injuries and the disabilities which flowed from the 2007 accident, it is necessary to view the plaintiff's own evidence on these matters against the various medical reports that were tendered.

Survey of evidence on injuries and disabilities 110I have already reviewed and summarised the plaintiff's evidence as to her pre-2007 state of health and her injury history at paragraphs [54] to [108] above, and I have already indicated my acceptance of that evidence. In the paragraphs that follow, before identifying my findings on the preferred medical opinions, and my findings on the nature of the plaintiff's injuries and disabilities from the 2007 accident, I survey the evidence on those matters. Plaintiff's evidence 111In her evidence in chief, the plaintiff stated that in the accident in question, her vehicle was struck from behind without any warning. She said that when this occurred she felt scared and she seemed unaware of what was happening around her. She said she had felt confused and wanted to go home to rest. She said that when she arrived home she started crying and was aware of being in pain, for which she took painkillers. She said she felt drained and went to bed in order to rest. She said that later that day, she started to feel worse. 112At that time the plaintiff said she was aware that her whole body was aching, she had a headache, her neck, low back, her arms and " everything " was aching. She also stated that both of her shoulders were painful, the right being more painful than the left. The following day she was aware of pain and this persisted for the following 3 days, so she went to see Dr Hamid. She had seen Dr Hamid a few times before, in connection with problems she had earlier experienced in 1993 and 1994. 113Immediately following the 2007 accident, the plaintiff described her pain as " nearly the same " as from the 1983 accident, but the problem was also " psychological " because this time she felt fearful about what was going on around her, and she surmised that she might have lost consciousness in the accident because she did not know what was going on around her. It is not entirely clear as to why the plaintiff felt that she had lost consciousness. Perhaps it was due to the shock she had described. In any event, the evidence does not permit a finding that she had a loss of consciousness. In relation to this aspect, apart from the plaintiff's answer to question 25 of the claim form Exhibit "3", there was no direct evidence that the plaintiff had hit her head in the 2007 accident. 114The plaintiff described the pain from the 2007 accident as " really horrible ... very severe " constant pain, compared to the " on and off " or " coming and going " pain that was the case immediately before the 2007 accident. 115In answer to questions put to her in cross-examination, on the subject of the injuries she received in the 2007 accident, the plaintiff agreed that the injuries she received in that accident involved the same areas of her body that were injured previously. However, she qualified that answer by stating that the pain from the previous accidents was not as severe as the pain from the 2007 accident. She said the respective pains could not be compared, in that the pain from the 2007 accident was now constant, whereas the pre-2007 pains were initially severe, but gradually diminished in intensity before the occurrence of the 2007 accident. 116In cross-examination, it was put to the plaintiff that she was exaggerating her evidence as to the effects of the 2007 accident in order to secure a larger amount of damages for compensation. It was further put to the plaintiff that after a couple of months following her 2007 accident, that her condition had got back to the way it had been in the years leading up to the 2007 accident, including in relation to her work and her domestic activities. The plaintiff did not agree with those propositions. 117The defendant did not specifically challenge the evidence of the plaintiff on the circumstances of the collision (nor did the cross-examination traverse the plaintiff's general description of the injuries she received in that accident, as summarised at paragraphs [111] to [116] above) other than to make the general and non-particular suggestion, that she had exaggerated the effects of the 2007 accident in order to enhance the level of a damages assessment in these proceedings. 118In my view, the plaintiff gave a measured and reasonable account of those matters in her evidence, and of itself, her evidence did not give rise to any concerns over whether she had either exaggerated or had tailored her evidence to suit her case, although in essence, that was the submission that was advanced on behalf of the defendant. 119However, in view of the credit challenges that the defendant made to the plaintiff's account of her injuries sustained in the 2007 accident, and also having regard to the credit challenges made concerning the disabilities that she claimed had evolved from those injuries, before I conclude my findings on those matters, it is appropriate that I undertake a survey and review of the medical and related reports that touch on those matters. 120In the paragraphs that follow, I propose to undertake that review in some detail in order to follow the course of the plaintiff's reported problems, the related treatment and the medical assessments made in connection with those matters, in order to assist me in the task of arriving at my findings of fact in relation to the injuries and disabilities that flowed from the 2007 accident. Dr Hamid - treating general practitioner 121The first objective assessment of the plaintiff's injuries following the accident of 2 May 2007, occurred when she was seen by Dr Hamid on 5 July 2007. He initially reported finding a restricted range of neck and lower back movements, as well as observing associated muscle tenderness and spasm of the neck and shoulder regions. Dr Hamid's initial diagnosis was that the plaintiff had suffered a soft tissue injury to the neck and to the lower back with some associated chest pain. That opinion was not challenged. Instead, the defendant sought to attack the underlying factual assumptions upon which that opinion was based by seeking to characterise the evidence of the plaintiff as being unreliable. 122Dr Hamid initially prescribed pain killing, anti-inflammatory and muscle relaxant medications along with physiotherapy. After several weeks of persisting symptoms, he arranged for some initial radiological investigations which revealed the presence of degenerative changes in the cervical spine between the levels C3/4 to C5/6, with some narrowing of inter-vertebral disc spaces. He predicted that the injuries would improve but this would require management over time. 123Dr Hamid continued to see the plaintiff over time, and in his 26 November 2010 report he observed the plaintiff had continued to suffer neck and back pain without improvement, with headaches, and the neck pain radiating to the arms and to the lower back. An MRI scan revealed the presence of some lumbar spine pathology at the level L4/5. Dr Hamid had made the observation that the plaintiff suffered from an unstable mental state and reactive depression, for which she received counselling and psychiatric treatment. Dr Hamid's referral of the plaintiff to a psychologist was in December 2007, and his referral to Dr Chaudhary for treatment of severe depression was in early 2008: Exhibit "C". Referrals to other doctors 124In the meantime, on 22 August 2007 Dr Hamid referred the plaintiff to Dr Mahony for orthopaedic treatment. The plaintiff was also referred to Dr Chaudhary for management of her psychological problems. She was referred to Dr Walker and Dr Dowla for neurological assessments. Dr Mahony referred the plaintiff to Dr Manohar for rehabilitation or pain management advice. The plaintiff's orthopaedic management by Dr Mahony was subsequently taken over by Dr Guirgis. The plaintiff's psychiatric management by Dr Chaudhary was later taken over by Dr Sokolovic, who was multilingual, and who was able to converse with the plaintiff in her own Bosnian language, or its related dialects. 125No reports were tendered from either Dr Manohar, Dr Dowla, or from the pre-2007 treating general practitioner Dr Mohammed, or from any of the pre-2007 treating doctors. No explanation was proffered for the absence of reports from these doctors. 126However, there was some selected hearsay of the content of the pre-2007 medical assessments of Dr Borton, Dr Garrick, Dr Gronow and Dr Metcalf cited by Dr Sokolovic in his first report. I shall refer to those opinions in connection with my review of the reports of Dr Sokolovic. Dr Mahony - treating orthopaedic surgeon 127Dr Mahony issued 15 reports concerning his assessment and management of the plaintiff's treatment between 22 August 2007 and 5 February 2010. Of those 15 reports, 11 were to other practitioners who are involved in the plaintiff's treatment, and 4 were addressed to the solicitor for the plaintiff. 128Essentially Dr Mahony treated the plaintiff for a cervical strain in association with degenerative changes to the cervical spine with nerve root irritation affecting the upper limbs, as well as a thoracic strain with pain radiating to the chest, and a low lumbar back strain with nerve root irritation, radiating to the feet. 129The plaintiff's physical symptoms did not improve much over time. Dr Mahony considered that she had sustained a cervical strain in association with degenerative changes with nerve root irritation affecting the upper limbs, as well as bi-lateral epicondylitis, capsulitis of her right shoulder and sub-acromial bursitis of her left shoulder, a thoracic strain with pain radiating to the left chest, as well as a low back strain with nerve root irritation radiating to the feet, more to the left than the right. 130The terms of the MAS certificate of Dr McGroder, to which I will refer in due course, prevent a consideration of the plaintiff's shoulder and elbow problems as part of the effects of the 2007 accident. 131Dr Mahony thought all of these symptoms, which I have summarised, were consistent with the road traffic accident the plaintiff had described, consequent upon aggravation of a pre-existing potentially irritable spine. 132The plaintiff was prescribed a variety of therapies which included medication, physiotherapy, hydrotherapy and remedial massage. 133The observations made by Dr Mahony concerning degenerative changes in the plaintiff's cervical and lumbar spines and the shoulder problems were confirmed on imaging studies that Dr Mahony had ordered. 134The plaintiff's orthopaedic care was transferred from Dr Mahony to Dr Guirgis after Dr Mahony had retired from practice. Dr Guirgis - treating orthopaedic surgeon 135After the plaintiff's orthopaedic care was taken over by Dr Guirgis, on an unknown date that followed the retirement of Dr Mahony, Dr Guirgis sent two letters to Dr Hamid setting out his comments on diagnosis and advice concerning the management of the plaintiff's post-injury problems. Those letters, which were described by Dr Guirgis as consultation reports of clinical findings and recommendations, were dated 15 February 2011 and 14 July 2011. 136The defendant objected to the tender of these documents as being non compliant with the requirements of an expert report and because they did not contain the customary details that were to be expected to be found in such reports to enable the assumed history and the opinions to be evaluated. Although these documents did not refer to or acknowledge the expert witness code, given that they were simply communications from Dr Guirgis, the treating orthopaedic surgeon, to the treating general practitioner, Dr Hamid, I considered they should be admitted into evidence subject to considerations of weight, particularly as they had been otherwise served in accordance with the rules, and Dr Guirgis was not required for cross-examination. 137In those letters, notwithstanding the absence of a recorded history, Dr Guirgis confirmed the effect of the earlier opinions of Dr Mahony, and he identified in more detail, the post-traumatic cause of the plaintiff's neck, shoulder and lower back complaints, and in addition he referred to a post-traumatic vestibular dysfunction, which the parties agreed, was a reference to the plaintiff's complaint of dizziness. Dr Guirgis did not explain whether the dizziness was due to head trauma or due to some neck-related problem. It is not necessary for me to speculate on the mechanism, as Dr Guirgis has identified the cause to be post-traumatic. 138Dr Guirgis did not indicate which trauma was responsible for this condition so that component of his evidence is of limited utility. In considering the weight to be attached to Dr Guirgis' comments in that regard, I did not see the need to otherwise discount them because that view had already been expressed by Dr Mahony, and Dr Guirgis' role was to continue Dr Mahony's previous care of the plaintiff. 139Dr Guirgis also identified signs of psychological disturbance or post-traumatic stress disorder in the plaintiff. This was identified as being chronic pain, anxiety, depression, fear of driving for fear of having another accident, and a history of several syncopal attacks. 140The plaintiff's psychological problems were the subject of a psychiatric report from Dr Chaudhary, and two subsequent psychiatric reports from Dr Sokolovic, the psychiatrist who currently treats the plaintiff. Dr Chaudhary - treating psychiatrist 141Following the onset of depression in the plaintiff some 7 - 9 months after the 2007 accident, Dr Hamid referred the plaintiff to a psychologist: Exhibit "C". There is no report from that psychologist. Subsequently, in early 2008, Dr Hamid referred the plaintiff to Dr Chaudhary, who saw the plaintiff for the first time on 14 April 2008, and on a total of 5 occasions, the last one being on 1 August 2008. The single report of Dr Chaudhary was dated 12 February 2009. Dr Chaudhary took a detailed history of the plaintiff's psychological problems as follows: " PSYCHOLOGICAL SYMPTOMATOLOGY She reported that since the accident of 2.5.07 she has not been able to do all the house duties such as cooking, washing, laundry, cleaning, vacuuming, shopping, washing the car, taking care of her children's needs and driving them to school and back. She was very active according to her in her daughter's school and she used to do voluntary work at least once a month. Every weekend with her family she used to go out for picnics, to the beach or other social activities. She said she lived a normal and healthy life until the accident on 2.5.07. Unfortunately since the accident it has been very difficult for her to perform any duties because she has a lot of back pain and shoulder pain. She also has a lot of headaches and her legs and arms are sore all the time. She gets severe pain and due to pain she has blacked out many times and twice was taken to the emergency ward at Liverpool Hospital. At present she feels she must be accompanied by some member of the family all the time. Because of pain attacks she cannot attend hydrotherapy and was referred to the insurers because she was scared to go into a pool fearing she might black out and drown. She still complains of having nightmares and they keep her awake through the night and she wakes in a sweat with fear. These nightmares affect her day and make her very stressful throughout the day. Some days she wakes and feels so depressed that she just wants to remain in bed. Her husband then tries to get her out of bed but she just does not want to know. The pain attacks and flashbacks of the accident prevent her from driving and sometimes she tends to grab the steering wheel whilst her husband thinking they might have another accident. I advised her that she should sit on the back seat and read a paper or magazine and not to interfere with her husband's driving. Because of this she is quite depressed and depends on help from her husband and daughter. Now these family members do all the work around the house and the shopping as well. Her son helps out with the vacuuming. She can only help out with light housework like dusting and sometimes she can hang washing on the line but only using her right arm. She cannot cook any more due to blackouts, she is scared she might burn herself and make a bigger problem for herself. She said it is the same with shopping and she cannot carry heavy items due to her arm and shoulder pain and she cannot drive her car to the shops and back which she used to do prior to the accident. Since the accident she is in pain every day and depends on help from the family where before she was the one looking after them. She says her life has changed completely and the thought that it wont get any better frightens her a lot. For some pain relief so she can do some of the things she was able to do prior to the accident, looking after her family and having a stress free life." 142From the context of the cited comments, it is not clear as to whether Dr Chaudhary's reference to " pain attacks " as stated, or should be read as panic attacks. 143Dr Chaudhary expressed the following unchallenged opinions on the plaintiff's diagnosis and prognosis as follows: " DIAGNOSIS In view of this clinical presentation I feel this lady is suffering from an adjustment disorder with anxiety and depressive moods. She has been on treatment and has been progressing slowly and with time her symptoms will settle down. Her main problems continue to be chronic pain syndrome due to the injuries she suffered in the accident and she will need effective pain management program which will help her to overcome her problems. PROGNOSIS Prognosis in the long run will depend on resolution of her pains and her psychological symptoms are secondary to the pain and once this primary condition is under control her psychological symptoms will remit in the future. Prognosis in the long run is good and she will make full recovery from the psychological problems. Her adjustment disorder with anxiety and depressed moods is a reaction to the accident she had on 2.5.07 and it is my opinion that she does not suffer from permanent psychological impairment and her psychological symptoms have improved to maximum level and her condition is stable." 144Dr Chaudhary also summarised the plaintiff's history to him as complaining of psychological problems including difficulty with sleeping, nightmares, nervousness, particularly with her children, dizzy spells, stress, sitting and staring into space, fear of having another accident when in her motor vehicle, tiredness, depression and not wanting to get out of bed. 145It appears from reading the report of Dr Chaudhary that his last prognostic comment to the effect that the plaintiff was not suffering from a permanent psychological impairment is out of keeping with subsequent psychiatric opinion. This raised a question of whether the word " not " was an erroneous inclusion. Dr Chaudhary was not called as a witness so this issue could not be clarified through further evidence from him. The matter was not explored in the evidence. Dr Sokolovic - treating psychiatrist 146The plaintiff said she felt she had not established a rapport with Dr Chaudhary. As a result, Dr Hamid referred her to Dr Sokolovic, who was multi-lingual. The plaintiff had been treated by Dr Sokolovic in the past. The plaintiff was pleased with this referral as she was able to communicate with him in her own Bosnian language dialect. At the referral of Dr Hamid, Dr Sokolovic first saw the plaintiff at her home on 30 April 2009, and he has continued to treat her since that time. 147The first report of Dr Sokolovic reveals that he had been provided with copies of the materials he listed on page 2 of his report. It transpired that this material had been provided to him by the plaintiff rather than by her solicitor. Dr Sokolovic had the benefit of considering the content of Dr Chaudhary's report as cited above, together with some reports from other doctors who had seen the plaintiff prior to the 2007 accident. Those previous doctors were Dr Borton, a general practitioner, Dr Gronow, a pain management specialist, Dr Garrick, a neurologist, and Dr Metcalf, a psychiatrist. These latter 4 reports were obviously related to the prior road traffic accidents in which the plaintiff had been involved. 148The defendant did not object to the tender of the reports of Dr Sokolovic without the inclusions of copies of those reports. This may have been because the defendant was satisfied that Dr Sokolovic had sufficiently cited and set out within the body of his report, the selected quotes from relevant portions extracted from the reports of the earlier assessing or treating doctors. A concluded view on that matter is not available from the evidence. 149However, it is clear from the extracted portions of the reports of Dr Borton, Dr Metcalf, Dr Garrick and Dr Gronow, that in the past, from her first injury in 1983, the plaintiff had suffered significant disability involving her cervical and lumbar spines. It is also clear that in 1984 and 1993, she suffered aggravation of those injuries. This led to her suffering from chronic pain and these problems had become amplified by non-organic factors, and probably by depression. 150In reciting those matters, Dr Sokolovic identified the fact that whilst the plaintiff's physical problems and pain were addressed following the 1983 and 1984 accidents, unfortunately, " no attention was paid to her mental symptoms ". Despite this, Dr Sokolovic summarised the plaintiff's pre-2007 history as being one of gradual improvement, including her psychological functioning. 151When the plaintiff was seen by Dr Sokolovic, he observed signs of tension, dysphoria and difficulty concentrating. He observed the plaintiff to burst into tears when the details of the 2 May 2007 accident were discussed. 152Dr Sokolovic recorded the history of the plaintiff's psychological condition as being worsened by memories of her earlier accidents. This, and her other problems of disturbed sleep and nightmares, and her fear of traffic, being the source of great stress to the plaintiff. After his first assessment of the plaintiff, Dr Sokolovic concluded as follows: "This appointment was concluded with the opinion that in her first accident of 24 August 1983, Zineta was left shocked and concussed. Her condition required action from doctors, though only her physical symptoms were addressed. The situation was further complicated by her second accident of 17 July 1984, in which she was again shocked and frightened, and suffered a long period of sleeping problems including nightmares, an inability to concentrate, and other mental and physical symptoms. Over time, and in the care of several experts, her condition improved gradually. She was able to take part in effective employment, play a suitable role in her family, and engage in community events, including seeking out a Tafe education. However, her third accident of 2 May 2007 left her more affected by her psychological symptoms and chronic pain than ever before. No doubt this can be attributed to the cumulative effects of her concussions and repeated Post Traumatic Stress Disorder (PTSD)." 153Having had the advantage of being able to further assess the plaintiff in a number of consultations over time, and after reviewing some documentation concerning the plaintiff's earlier history, presumably extracted from the documentation referred to on page 2 of his report, Dr Sokolovic expressed the following opinion: "When judging Zineta's third accident of 2 May 2007, consideration was paid to her emotional shock and the aggravation of her physical symptoms; the severity of her physical and mental ailments was increased by the cumulative effects of the injuries sustained in her previous accidents, as well as her asthenic traits that rendered her more receptive to pain. The documented reports of Dr Mahony illustrated his optimal treatment of Zineta's chronic pain. The initial report made by Dr Chaudhary dated 12 February 2009 demonstrated his recognition of her chronic PTSD and other symptoms. Unfortunately, in his later report of 27 February 2009, he states, in part, that subsequent to her accidents she now suffers only from adjustment disorder, and that... '...her psychological conditions are not chronic and are not likely to cause any permanent psychiatric impairment in the future and I confirm that whole person impairment under the Motor Vehicle Accident Compensation Act is not assessable in her case.' From an objective point of view, this statement could not be more mistaken. Dr Chaudhary delegated Zineta's further treatment to Dr Mahony, which was an unfortunate decision as Dr Mahony himself had had difficulty in treating her chronic pain, no doubt due to her severe chronic PTSD resulting from the cumulative physical and mental effects of her injuries and her increased susceptibility for the perception of pain. Zineta has been left with asthenic traits that increase her reception and reaction to pain, so a more appropriate approach would be intensive treatment of her post-concussion symptoms with special attention to the reduction of her suffering of chronic pain." 154Dr Sokolovic then went on to conclude: "In conclusion, Zineta was once an ordinary person, easygoing and optimistic, with reasonable mental and physical health who was able to cope well with the stressors of everyday life, including those of her unsuccessful first marriage. In her first accident of 24 August 1983 she was inflicted with concussion and physical injuries to her neck, shoulders and back, and these injuries were aggravated by her involvement in the accident of 17 July 1984. The symptoms of these accidents were cumulative, and the applied regimen of treatment she subsequently received was not sufficiently suitable. However, with time she gradually improved and eased back into her old life, engaging in education, employment and close personal relationships. Unfortunately, Zineta's third accident of 2 May 2007 added further to the cumulative injuries sustained in her previous accidents, resulting this time in more severe chronic PTSD, chronic pain syndrome and psychosocial dysfunction, besides further changes to her personality. Through effective treatment her health has improved to some degree, though it is likely that her condition will not reach her previous level. However, even with stated improvements, she will no doubt remain unsuitable for gainful employment or effective vocational rehabilitation. In addition, due to her chronic mental and physical conditions, as well as her remaining vulnerability to stressors, she will remain dependent on medical and psychological treatment, and the quality of her life will continue to suffer." 155Dr Sokolovic continued to treat the plaintiff. In his second report dated 22 February 2011, he concluded as follows: "Currently, Zineta is mildly anxious, and is still reluctant to be involved in any form of road traffic. Her sleeping pattern has been improving, though she remains vulnerable to both social and physical stressors, which cause her to relapse into episodes of anxiety and nightmares. Her current condition can be considered to have reached a stable level, the most significant problem being her vulnerability to stressors, which is unlikely to be remedied soon. She will probably remain reluctant to be involved with traffic and driving. Zineta should continue with psychiatric treatment and follow up according to her need and the fluctuation of her symptoms. She should attend at least a few times a year." 156The impression gained from the reports of Dr Sokolovic is that there has been some improvement in the plaintiff's psychological problems over the time he has been treating her. 157In setting out the evolution of the opinions of Dr Sokolovic, for completeness, it is necessary to refer to his letter dated 28 April 2010: Exhibit "M", which he intended as an addendum to his earlier report. 158That letter had been prepared because Dr Sokolovic had been asked to provide information on his prior assessment and treatment of the plaintiff. In that letter he indicated that he had treated the plaintiff between 14 February 1999 and 21 November 2000 for PTSD following a series of incidents involving the plaintiff in 1996 in which she was the victim of serious threats which amounted to an act of violence or assault, in connection with an associated victims compensation claim for which she received compensation. The VCT Determination noted the plaintiff still had symptoms of PTSD even 2 years after the event. The Determination stated: "Dr Sokolovic diagnoses a post traumatic stress disorder and sets out symptoms including sleep disturbance, nightmares and flashbacks. The main effect on the applicant's ability to function in the normal manner is in relation to the birth of her child in the following January. Dr Sokolovic found the applicant in need of medication due to anxiety both before and after the birth but did not prescribe it due to her pregnancy. She experienced difficulties in caring for the new born child and her husband consequently played a large part in caring for the child. The report states that there are residual symptoms nearly 2 years later." 159Although Dr Sokolovic had initially omitted some relevant historical matters from his first report, namely his treatment of the plaintiff in the period 1999 to 2000, those matters were not the subject of a requirement that Dr Sokolovic attend for cross-examination, nor were they otherwise challenged, so I draw no adverse conclusions from such earlier omissions. I take that view because they were ultimately dealt with in Dr Sokolovic's letter dated 28 April 2010. MAS reports - s 58 and s 61 of MAC Act 160I now turn to examine the MAS reports of Dr McGroder and Dr Virgona, which were commissioned by the Motor Accidents Authority. In general, these reports must be seen in the specific context of an administrative enquiry aimed at determining whether the certification requirements of the Motor Accidents Compensation Act 1999 were fulfilled, as the outcome of that issue impacted on whether or not the plaintiff was entitled to claim damages for non-economic loss. The conclusion of that process was that the plaintiff was precluded from making a claim for non-economic loss in these proceedings. 161The MAS reports were tendered by the plaintiff without objection, and no application was made by either party seeking to limit the terms of the tender, pursuant to s 135 of the Evidence Act 1995, or otherwise, on account of the fact that under the scheme of the MAC Act , a party is precluded from questioning a MAS medical assessor. This is because under the scheme, an assessor cannot be compelled to give evidence. Accordingly, as the reports form part of the evidence to be considered, they require evaluation for their probative value and weight. 162The defendant has drawn attention to the provisions of s 58 and s 61 of the MAC Act in the context of the MAS reports that were tendered. 163Section 58 is concerned with the manner of determination of disputes between claimants and insurers on medical assessment matters, which are defined as relating to whether treatment was reasonable or necessary in the circumstances: s 58(1)(a); whether treatment relates to the injury caused by the motor accident: s 58(1)(b); and whether the degree of permanent impairment of an injured person as a result of the injury caused by the motor accident is greater than 10 per cent: s 58(1)(c). 164Section 61 is concerned with the conclusiveness of medical assessment certificates as evidence of any matters certified in the certificate: s 61(2). Certificates may be rejected by a court, either in whole or in part, on grounds of denial of procedural fairness, but only if satisfied that the admission of the certificate as to the matter concerned would cause substantial injustice to the party affected: s 61(4). Except as provided by s 61(6), which refers to substitution of determinations for percentage permanent impairment (which is not a consideration here) a court cannot substitute its own determination of any medical assessment matter: s 61(7). 165It is clear that the MAS assessments of Dr McGroder and Dr Virgona in this case, were directed at the question of whether the plaintiff's case met the threshold of 10 per cent whole person impairment. However, applying the terms of s 61, notwithstanding that the reports in question were not expert opinions obtained and served under the rules, which require adherence to the Expert Witness Code, the plaintiff is bound by the findings as to injury as set out in those reports. There was no evidence suggesting that the plaintiff had sought remedies to limit the effect of those reports, on grounds of procedural fairness, or otherwise. Dr McGroder - MAS Assessor 166On 25 June 2008, the plaintiff was assessed by Dr Gregory McGroder, a MAS medical assessor. Dr McGroder, who is a specialist in occupational medicine, issued his certificate of determination on 2 July 2008, in which he determined that the accident had caused the plaintiff to suffer soft tissue injuries to the cervical, thoracic and lumbar spines, and to the chest. He determined that those injuries had stabilised. 167Dr McGroder also determined that the plaintiff's injuries comprising subacromial bursitis of the left shoulder, capsulitis of the right shoulder, and epicondylitis of the right and left elbows, were not caused by the accident. 168Of the injuries that Dr McGroder accepted as having been caused by the accident, in his determination of stabilisation, he stated that he " can think of nothing physical that will change the course of her symptoms. Under the circumstances, I feel that her condition has stabilised ." 169Dr McGroder determined that according to the assessment criteria for the MAC Act scheme, the whole person impairment for the assessed injuries caused by the accident, was 0 per cent. That finding is not open to challenge in these proceedings, and neither party sought to do so. 170When Dr McGroder's report is examined, it is plainly apparent that he based his opinions on matters that were not in evidence in these proceedings. One such matter was the assumption that the collision in question was " a low impact accident ": report, page 9. In these proceedings, and on the material Dr McGroder had before him, it is not possible to determine the correctness of the factual basis of that statement of opinion because the material upon which it was founded, or from which it had been extracted, was not in evidence in these proceedings: report of Dr McGroder, page 2. 171As to the details of the accident, Dr McGroder's report recorded the following summary: " History of the Motor Accident The accident occurred on 2 May 2007. Mrs Nuhic was driving a Ford sedan. She was wearing a seatbelt. She stopped at a red light. A car stopped behind her. It appears that another car ran into the car behind her and forced it into the back of her car. She said that at the time she did not feel any pain but she felt shock and she said the police assessed her and she told them that she did not have a problem and that she was okay to drive home. She did so which was a matter of 10-20 minutes. The back of her car was repaired." 172That summary requires comparison with the content of the plaintiff's personal injury claim form, Exhibit "3", where she stated that she had injured her head, her neck, her shoulders, her arms, and her lower back, and where it was stated that the damage to the back of her car included damage to the boot. 173Dr McGroder's report went on describe his findings on clinical examination as follows: " Clinical Examination This lady was extremely difficult to examine because of overt abnormal pain behaviour. She displayed inconsistent range of movement. I spoke to her via the interpreter with regard to this. An example was that when she spoke to the interpreter she had her neck turned comfortably towards the left but when being specifically examined she demonstrated significant decreased \ movement towards the left and significant pain. The interpreter attempted to \ explain this to her but Mrs Nuhic said that what was happening was due to her pain and she cannot explain why it was different at different stages. When testing for tenderness she displayed extreme pain responses to light touch and once again via the interpreter I explained to her that this was inconsistent with when sitting in the chair and lying on the examination couch but Mrs Nuhic said she could not explain why her pain response was such. Similarly when testing strength she displayed gross weakness that was inconsistent with daily living but she once again made no attempt to change her response. Overall she gave the impression of being depressed with a flat affect. She was noted to be teary at various stages during the history and examination. Mrs Nuhic was wearing a lumbar brace. She had normal spinal alignment. She had a slow gait and when being specifically examined dragged her feet along the ground. She said she could not walk on heels and toes because of back pain. She could only perform a very small part of a squat because of back pain. On assessing movement of the thoraco lumbar spine forward flexion was 30 degrees and backward extension was minimal. Lateral movement was 20 degrees bilaterally and rotation 20 degrees bilaterally. There was positive truncal rotation. I could not detect any specific muscle weakness involving the lower limbs although gross weakness was demonstrated when in a lying position. Thigh diameter was 52 cm bilaterally and calf diameter 40 cm bilaterally. Reflexes were equal and normal. There was no abnormal sensation. I could not palpate muscle tone because of abnormal response to light palpation. With regard to the cervical spine she displayed when being specifically examined gross restriction of range of movement in all directions. Forward flexion was 30 degrees and backward extension 20 degrees. Lateral movement was 20 degrees bilaterally and rotation 30 degrees bilaterally. There was pain throughout and signalled with a nodding of the head. On assessing movements of the shoulders on the right it was full but on the left elevation was only to the horizontal and all movements were basically to approximately 50 % of the range. There was no evidence of muscle wasting affecting the upper limbs. Reflexes were equal and normal. There was decreased sensation to pinprick over the whole of the left upper limb. There was however tenderness to light touch involving the muscle groups of the forearm, the upper arm, and the shoulder area globally and also the thenar eminence and small muscles of the hand. On the right there was tenderness of the forearm muscles and the upper arm muscles and the shoulder area globally. Reflexes were equal and normal in both upper limbs. Strength was grossly decreased in the left upper limb involving all muscle groups. It was reasonable on the right. On assessing tenderness of the spine this was marked to light touch over the cervical, the upper thoracic with an area around the thoraco lumbar junction which was not tender but then tenderness to light touch over the lower lumbar spine and there was tenderness over the paraspinal areas. There was tenderness over the posterior thorax and the anterior chest area. Gentle axial loading of the head resulted in localised tenderness on the right and on the shoulders a pain response involving the shoulders and also the lower back." 174In his report, after reviewing Dr Mahony's reports covering the period of his management or treatment of the plaintiff between 22 August 2007 and 7 April 2008, Dr McGroder stated: "My feelings with regard to Dr Mahony's opinions is that he has based a lot of this on radiological diagnoses. There is no evidence however of nerve root irritation on any of her investigations. There is no evidence of any pathology involving her right shoulder. There is some mild subacromial bursitis on the left but under the circumstances this would not be clinically relevant. Overall however I feel that Dr Mahony has based his opinion on subjective symptomatology and radiological diagnoses." 175It is plain from the preceding extract of Dr McGroder's report that whereas Dr Mahony based his finding of an irritation of the plaintiff's cervical nerve roots affecting the plaintiff's upper limbs, Dr McGroder discounted the symptoms that underpinned those comments and relied solely on the result of investigations for his conclusion that there was no evidence of the cervical nerve root irritation described by Dr Mahony. This raised a question as to the reasonableness of that analysis. 176Dr McGroder then stated his conclusion as follows: " Consistency of Presentation As noted above this lady presented an inconsistent exaggerated response to examination and overall demonstrated gross abnormal pain behavior (sic) which made assessment of impairment difficult. Overall my feeling was that if this lady did have a problem it was psychological rather than physical. Diagnosis and Causation This lady was involved in a road traffic accident on 2 May 2007. It appears to have been a somewhat low impact rear ender accident. At the time of the injury this lady did not report any symptoms. She said that she only developed symptoms the next day. She did not see her GP until 5 May 2007 and at that time he only documented neck, shoulder, lower back, and chest problems. At the moment she presents with widespread pain affecting basically the whole of her body. Her current presentation cannot be explained by an accident model. Her investigation findings do not demonstrate any significant pathology and her examination did not demonstrate any objective evidence of any significant underlying physical problem. On the contrary her presentation was one of gross abnormal pain behaviour. With regard to the injuries as listed by the parties I will address these in order.

1. Cervical spine/neck - soft tissue injury/disc bulge. This lady may well have sustained a mild cervical strain even though given the nature of the accident * and her late reporting of symptoms this is not definite. She may well have sustained a strain but there is no objective evidence of any significant ongoing problems.
2. Thoracic spine - soft tissue injury. Similarly with the thoracic spine this also may well have been the case although this is not definite once again but it is not totally inconsistent that there may have been a soft tissue injury involving the thoracic spine which under normal circumstances would have resolved.
3. Lumbar spine/lower back - soft tissue injury/disc lesions. The lumbar spine has been referred to as a soft tissue injury/disc lesion. There are some minor disc lesions seen on MRI scanning but these have no mass effect. She may well have sustained a mild soft tissue injury but this would not be significant although once again it is not totally inconsistent that she may have sustained soft tissue injury which under normal circumstances should resolve.
4. Chest - soft tissue injury. There is a suggestion of soft tissue injury and once again this is not totally medically inconsistent although once again with a low impact accident and no early reporting of symptoms this would only have been mild at most.
5. Left shoulder- subacromial bursitis. With regard to the left shoulder subacromial bursitis is a radiological diagnosis made on an ultrasound which is an inaccurate examination and this is not present clinically.
6. Right shoulder - capsulitis. Similarly with the right shoulder the diagnosis of capsulitis is not seen on investigations and is not present clinically.
7. Right and left elbows - bilateral epicondylitis. With regard to the right and left elbows there has been a diagnosis of bilateral epicondylitis but there is no clinical evidence of a genuine bilateral epicondylitis on today's examination. Thus with regard to ongoing documentation of injuries they will be referred to as:
8. Cervical spine - soft tissue injury.
9. Thoracic spine - soft tissue injury.
10. Lumbar spine - soft tissue injury.
11. Chest - soft tissue injury." 177In my view, apart from the requirements of statute concerning the cause of the plaintiff's injuries as required by s 61 of the MAC Act , I consider that Dr McGroder's remaining opinions should be given little weight. 178My reasons for coming to that view are as follows. 179First, I consider that there is no satisfactory evidence to support the assumption that the collision in question involved a low impact. The plaintiff's evidence suggests otherwise, namely, that she was thrown about whilst restrained by her seatbelt, as does the motor accident personal injury claim form, Exhibit "3", which described damage to 3 vehicles, including to the back of her vehicle and which presumably formed the basis of the admission of liability in this case. 180The claim from described a 3 vehicle collision. The first collision occurred when the front portion of a vehicle driven by Mr Taha, collided with the rear of Mr Orahim's stationary vehicle, and a result of that collision, Mr Orahim's vehicle then collided with the rear of the plaintiff's vehicle, which had been stationary at red traffic lights. 181There was no actual evidence of the speed of Mr Taha's vehicle at the time of impact. His vehicle was described as having sustained damage to the front portion. The consequential damage to Mr Orahim's vehicle was described as being to the front and to the back of the vehicle. The consequential damage to the plaintiff's vehicle was described as being to the boot and to the whole of the back of the vehicle. 182I do not consider that the above evidence necessarily or fairly supports a conclusion that the collision involving the plaintiff's vehicle was of low impact. I consider that this circumstance detracts from the probative value of Dr McGroder's report. 183Secondly, from a diagnostic or assessment point of view, Dr McGroder's report does not undertake any meaningful assessment of the validity or otherwise, or the impact of the psychological problems he observed in the plaintiff. This could possibly be explained on the basis that the assessment of such matters was outside the terms of his specific remit, and it was therefore simply sufficient for him to record the difficulty he experienced in examining the plaintiff. That said, the fact that his evaluation did not adequately consider the psychological effect of the accident on the plaintiff detracts from the utility of his report in the context of the assessment of the plaintiff's claim as a whole, as is required in connection with my evaluation of the evidence in these proceedings. 184Thirdly, Dr McGroder appears to have set aside from his consideration the opinions of the treating orthopaedic surgeon, Dr Mahony, stating that it appeared to him that Dr Mahony had based a lot of his opinions on the radiological diagnoses, and on the plaintiff's subjective symptomatology. In contrast, in my view, the plaintiff's subjective account of her injuries and disabilities is a relevant matter that I must consider and take into account in the evaluation I am required to undertake. 185Fourthly, the above factors, also in combination with the fact that the plaintiff's reported physical problems should not be considered in isolation without also taking into consideration the psychological complaints and the related psychiatric opinions, indicated to me that the report of Dr McGroder is of only very limited probative value. I also consider that conclusion arises because he has only seen the plaintiff on one occasion, unlike Dr Mahony and Dr Hamid, who have had the advantage of making their observations after treating the plaintiff over time. 186I therefore consider that the probative value of the report of Dr McGroder should be considered as being limited to his acceptance of the plaintiff's injuries to the cervical, thoracic and lumbar spines, and to the chest. His impressions as to other matters are not definitive. In any event his opinion on those other matters has been overtaken by the events of time and other clinical diagnoses. Dr Virgona - MAS Assessor 187On 25 August 2010, the plaintiff was assessed by Dr Angelo Virgona, a MAS medical assessor. Dr Virgona, who is a consultant psychiatrist, issued his certificate of determination on 14 September 2010, in which he stated that the plaintiff 's injuries caused by the accident have given rise to a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. 188Dr Virgona carried out his assessment of the plaintiff's accident related problems according to the MAS assessment criteria, and he also ultimately determined that the plaintiff's level of impairment, according to those criteria, should be assessed at 0 per cent. 189Dr Virgona was provided with a range of materials that were described on page 2 of his report. The significance of some of the content of that material is not clear from the evidence. For example, there was a statement of Mr Mustapha Taha, dated 22 January 2008, which was apparently obtained some 8 months after the collision, and some correspondence between solicitors, of unknown content. 190Dr Virgona recorded the following history of the circumstances of the accident: "She stated that the accident occurred on 02/05/07. She was driving, alone, and was wearing a seat belt. She had dropped her daughter off and was on her way back home. She stated that she was stopped at a set of lights and someone ran into the back of her car. She stated that one car had run into the car behind her, and pushed it into her car. I asked if her car was pushed forward, and she said "I don't know". She stated "I was in huge shock". I asked if she hit her head, or was knocked out and she said "I don't know." "I was in some kind of shock, I don't know what happened". She stated that she got herself out of the car, the police came, she told them that she didn't need an ambulance and she drove the car home." 191Dr Virgona explored the plaintiff's history, including current symptoms of pain, nightmares, sleeping problems, weight fluctuations, concentration difficulties, forgetfulness, loss of appetite and nervousness. He also reviewed the plaintiff's treatment regime. 192Dr Virgona reported that the plaintiff was tearful throughout his interview and avoided eye contact. He described her as having been reactive in her affect, without psychomotor abnormalities and having no morbid depressive features. He also reported that the plaintiff's presentation was consistent with that given to other clinicians, but he noted that her emotional responses during his interview often appeared to be incongruent to the matters under discussion. He obviously drew conclusions from her demeanour for the purposes of arriving at his assessment. 193Dr Virgona set out a review of the reports and materials that had been provided to him, including the report of Dr L Pierides, obtained on behalf of the defendant. Immediately following his notation of the opinion of Dr Pierides, in which the plaintiff's presentation was described as being contrived, Dr Virgona's report included the following comment: " Annexure A: noted ." That reference to Annexure A remained unexplained in the evidence, and it is not possible to determine what it was that Dr Virgona had considered, and had noted in that aspect of his review. In my view, this casts doubt upon the probative value of the report of Dr Virgona. 194Dr Virgona had before him the plaintiff's motor accident personal injury claim form, as well as the statement of Mr Taha dated 22 January 2008. The statement appears to have been of some length, as is evident from Dr Virgona's reference to points 27 and 28 within it. Dr Virgona quoted Mr Taha's statement that the impact was " not strong " and provided a summary stating that the plaintiff's vehicle was " damaged slightly at the rear bumper bar. The tow bar may have protected it ." That untested statement was at significant variance with the plaintiff's account of the damage to the back of her vehicle and to the boot, as recorded in the claim form Exhibit "3". 195In these proceedings it is not possible to undertake a comparative analysis of the statement of Mr Taha because the primary materials for comparison are not in evidence. I therefore consider that I must attach only diminished weight on that evidence as it is incapable of being tested, especially where neither party had a right to question Dr Virgona on any aspect of the content of his report. This casts further doubt upon the probative value of the opinion of Dr Virgona. 196Dr Virgona also reviewed some DVD footage and an investigator's report, which I shall assume was the same material that I have also seen, and to which I shall shortly refer: Exhibit "H". 197Dr Virgona then stated his conclusions on matters of diagnosis and causation as follows: " 6. Conclusions Diagnosis and Causation The claimant was involved in a minor traffic accident. She developed pain symptoms which experts concluded were exaggerated and possibly contrived. She has an extensive compensation history. She did not report any psychological symptoms initially to her GP nor on her claim form. She then complained of range of psychological symptoms and was referred to a psychiatrist the following year. When first seen, on 10/04/08, the referring symptoms were poor sleep, poor concentration and depression. He concluded that she had an adjustment disorder secondary to her pain. She then saw her previous psychiatrist, who diagnosed PTSD. He continues to see her until the present time. He has concluded that she had been sensitised to the development of PTSD symptoms by previous accidents. The important features of this case include: it was a relatively minor accident; she did not claim any psychological symptoms at all when she filled in her claim form; she did not report any psychological symptoms to her GP in the acute period after the accident and was only referred for psychiatric assessment and treatment the following year. I opine that, had she been sensitised to PTSD because of past traumatic experiences, as argued by Dr Sokolovic, then she would have had PTSD triggered acutely, i.e. by the accident and these symptoms would have been obvious to her and her GP straight after. A more likely explanation is that she developed the pain symptoms, there may have been some sleep disturbance due to pain, she may have gone on to develop other anxiety and depressive symptoms as a result of the pain and sleep disturbance. This would be more consistent with the Adjustment Disorder, as noted by Dr Chaudhary, than with PTSD. I think it is likely that she exaggerates symptoms. This was the conclusion of Assessor McGroder. Her tearfulness throughout my assessment was not consistent with her current circumstances, given that she had reportedly improved across a range of measures and the tears were often incongruent to the matters under discussion. It is likely that she has a Chronic Pain Disorder and I opine that abnormal illness behaviour is probably influencing her presentation. She does report some ongoing anxiety and depressive symptoms, these are of a mild nature and are consistent with a mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE caused by the motor accident: Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood" 198Dr Virgona assessed the plaintiff's whole person impairment caused by the accident in question at 7 per cent, but on application of the required guidelines, noting these ratings are not a direct measure of disability, he issued a guided MAS certificate of 0 per cent whole person impairment. 199The report of Dr Virgona has to be assessed for its probative value, particularly as a substantial part of the plaintiff's case involves psychological issues and psychiatric reports, and even more particularly as the outcome of the case is dependent upon an assessment of the credit of the plaintiff, and where Dr Virgona reached the conclusion that the plaintiff exaggerated her symptoms, which led him to conclude she had underestimated her true capacities. 200For the reasons that follow, I consider that I should not place any reliance upon the comments of Dr Virgona to the effect that he considered the plaintiff to have exaggerated her symptoms. 201First, I cannot be satisfied that his opinion as to the plaintiff having exaggerated her symptoms was not at least in part influenced by the untendered and untested evidence comprising Mr Taha's statement as his version of the extent of the damage that was sustained to the plaintiff's vehicle in the collision. 202Secondly, it appears to me that Dr Virgona has placed reliance on the opinion of Dr Pierides to the effect that the plaintiff's symptoms were exaggerated and contrived, where on an examination of the reports of Dr Pierides, it seems to me, for the reasons that I shall outline in connection with my analysis of the reports of Dr Pierides, I do not accept the reasonableness of the conclusions reached by Dr Pierides. Furthermore, in my view Dr Virgona's opinion must be seen as being tainted by that prejudicial material. 203Thirdly, for the formation of his opinion, Dr Virgona has also placed reliance on the assessment of Dr McGroder to the effect that it is likely the plaintiff exaggerated her symptoms. The difficulty with that reliance is that Dr McGroder's examination of the plaintiff took place on 25 June 2008, which was some 26 months before the examination by Dr Virgona. In that time the plaintiff had been assessed and treated by Dr Sokolovic for her psychological problems. I consider the criticisms of the plaintiff that were made by Dr McGroder in this context, were based on unsound foundations, as the consultation on which they were based had taken place over 2 years before Dr Virgona's examination, and since then the plaintiff had been under the clinical supervision of a consultant psychiatrist, as a result of which a wider consideration of her situation was required. 204Fourthly, Dr Virgona seems to have regarded it as an important feature of his analysis that the accident in question " was a relatively minor accident ". I consider that conclusion to be a flawed assumption for his diagnostic conclusion because it is necessarily subjective, and therefore unsound on the evidence tendered in these proceedings. 205Fifthly, I consider that an element of confusion has entered into Dr Virgona's task of assessment of the plaintiff's psychological problems. I consider this to be the case because he has placed important reliance upon the fact that the plaintiff did not claim any psychological symptoms at the time she filled in her claim form. In making that statement he appears to have overlooked, or not had available to him, the chronological fact that the plaintiff suffered shock and confusion at the time of the collision, and only started to complain of psychological symptoms some 7 - 9 months or so after the accident. He has therefore apparently misunderstood the basis of her case, which was not that the psychological symptoms started immediately after the accident, but rather, developed some months later, which resulted in Dr Hamid referring the plaintiff first to a psychologist, and then to Dr Chaudhary. 206It appears that in this regard, Dr Virgona has assumed from the absence of any mention of psychological problems in the correspondence from Dr Hamid, that " she did not report any psychological symptoms to her GP ." That comment must be read in the light of the plaintiff's report of the phenomenon of " shock ", which she described in her evidence. The comment also ignores the entries in the notes of Dr Hamid, where it is recorded that he referred the plaintiff to a psychologist and a psychiatrist. 207Dr Virgona's comment on the absence of a report of psychological symptoms to the general practitioner requires consideration in a number of respects, including in the context of Dr Hamid's notes, Exhibit "C". 208It must be recognised that the notes of Dr Hamid, Exhibit "C", are not intended as a verbatim transcript. Accordingly, what Dr Hamid decided to include, or leave out of his written notes, was a matter that depended upon his requirements, recognising the notes were no more than an aid to memory, and not a transcript. That said, the absence of any reference to psychological problems in Dr Hamid's letters could either be seen as indicative that there were no such problems, or that if the plaintiff was affected by such problems, they were not thought to be significant at the time. If Dr Hamid had been called to give evidence, this point could have been clarified. 209At the plaintiff's first consultation with Dr Hamid on 5 May 2007, Exhibit "C" makes reference to the plaintiff being prescribed Ducene. I infer from Dr Hamid's report, and as explained by Dr Sokolovic, that Ducene was prescribed as a muscle relaxant. 210At the third consultation on 9 May 2007, Dr Hamid's notes allow an interpretation that the prescription of Ducene was reconsidered and increased. The extent of increase, whether by frequency or dosage is not noted, nor is the reason for the increase. 211Whilst it is known that Ducene is a prescribed restrictive substance included in Appendix D of the Poisons and Therapeutic Goods Regulation 2002, namely a Schedule 4 drug, because it is a benzodiazepine, and is psychoactive, the state of the evidence does not permit an inference that its prescription for the plaintiff on 5 May 2007 and thereafter, may have had some psychotherapeutic effect such as to perhaps mask the plaintiff's post-accident emotional state. For that inference to be drawn, expert evidence would be required and the evidence is silent on this point so the inference cannot be drawn: Strinic v Singh [2009] NSWCA 15. This is even though Dr Sokolovic described Diazepam as an anxiolytic. This is a matter that could have been usefully made the subject of clarification in the medical evidence. 212Accordingly, the correctness or otherwise of Dr Virgona's comment as to the absence of an early report of psychological symptoms is a matter that has to be considered on an a factual level, taking into account the existing medical evidence, the evidence of the plaintiff and her daughter, and the reasonable inferences open on that evidence. This is a matter to which I will return following the resolution of conflicting medical opinions and when I identify my findings as to the plaintiff's injuries and disabilities which were caused by the 2007 accident. 213Sixthly, Dr Virgona has made a subjective statement to the effect that the plaintiff's tearfulness throughout the interview with him was inconsistent with her current circumstances, and incongruent to matters that were under discussion at that interview. To the extent that this is a statement of opinion, it does not comply with the requirement of the Expert Witness Code, UCPR Sch 7, cl 5(a), which requires that the statement of opinion by an expert must be supported by the reasons for that opinion. In that regard, the stated inconsistency and incongruity were not specifically identified. 214As a MAS assessor, Dr Virgona was not required to state his adherence to the expert witness code for the purpose of preparing his report. That is not a criticism of his report in the sense that it is clear that his report was not prepared as an expert report for use in these proceedings. However, since the report was tendered in the proceedings, the absence of reasons for the stated conclusions is a matter that I must take into account in weighing the opinions that were expressed by Dr Virgona. 215In weighing the foregoing considerations arsing from the report of Dr Virgona, I consider that I should place only limited reliance upon it, and only to the extent of his diagnosis of accident related chronic adjustment disorder with mixed anxiety and depressed mood, a matter that is supported by the opinion of the treating psychiatrist, Dr Sokolovic. 216I now turn to examine the reports tendered by the defendants. Dr Pierides - defendant ' s occupational medicine expert 217At the request of the solicitor for the defendant, Dr L Pierides, who is an occupational medicine specialist, examined the plaintiff on 22 November 2007. Dr Pierides wrote critically of the plaintiff's presentation, and was also critical of the diagnosis made by Dr Mahony. He stated that the plaintiff may have suffered a cervical strain in the accident but he thought the remainder of the diagnoses put forward by Dr Mahony were not able to be substantiated. He argued that the plaintiff's condition was not consistent with any significant injury. He expressed the opinion that the plaintiff's presentation appeared contrived. In his first report Dr Pierides stated that he believed the plaintiff had recovered from the effects of her injuries. 218Dr Pierides saw the plaintiff for a second time on 6 July 2010. On that occasion he reported that the plaintiff was looking quite forlorn. He said he was unable to determine any significant ongoing physical injury but he noted that the examination was somewhat limited by the plaintiff's reticence to move and because of her pain behaviours. His diagnosis and prognosis was expressed in the following terms: " Your current diagnosis of all accident related conditions? I could not determine any significant ongoing injury. In the presence of her pain behaviours and self restriction, it was difficult to perform an examination of any relevance. Even so, the investigations findings were essentially all within normal limits and there was no evidence of neurological compromise in the upper or lower limbs, there was no muscle spasm or guarding in any of the lumbar spinal areas and therefore I feel confident determining that there is no ongoing injury. Your updated opinion as to prognosis. Physically she has recovered and I believe she would have recovered within a few weeks after the subject accident. The subject accident involved a rear end collision but she was able to drive her car home. She didn't go to her doctor for 3 days after the subject accident. All her investigations have been essentially normal." 219Dr Pierides expressed some scepticism about the relationship between the plaintiff's need for psychiatric treatment and the 2007 accident. Whilst that comment would appear to be a matter beyond his stated expertise, although in fairness to him, he did suggest an independent psychiatric examination. His further comments were as follows: " Please provide your comments and opinion in relation to the applicant's past, present and future fitness for employment. I believe that for 6 weeks after the subject accident she would not have been able to undertake all activities without restriction. I believe at that time though any accident related injuries would have settled and she would have been able to return to her normal pre-accident level of activity, whatever that may have been. I note she has not worked since 1998. Please provide your opinion in relation to any future treatment required by the applicant as a result of the accident and associated costs. Please refer to the precise claim as outlined in the claimant's submissions and comment. She does not require any further treatment. I don't believe that any further hands on intervention, medication, psychological or psychiatric intervention or review by doctors or investigations will be necessary. The independent psychiatric assessment should make comment on the psychiatric requirements, although as noted, there appeared to be a significant past psychiatric history which will need to be assessed appropriately. It is possible that she had a temporary aggravation of a pre existing psychiatric condition at the time of the subject accident but it appears any ongoing psychological or psychiatric treatment is not related to the subject accident. Please advise if your previous views with respect to any past and future care requirements have altered in light of the enclosed documents and your re-examination. She doesn't require any assistance with any home duties. In fact it is in her best interests to participate in her normal activities. I don't believe at any time after the subject accident she would have required any significant care. Her presentation was not that of someone with physical injury but someone who is self limiting. I also took the opportunity to advise her that I viewed a video of her on her balcony where she was looking quite relaxed and moving freely and elevating her arms. She said that some days she feels good and some days she feels bad. If your previous views have altered in a material way, please advise. My previous views have not changed. I believe that any possible injury that could have occurred in the subject accident would have been mild and would have settled in a few weeks with appropriate physiotherapy treatment. I don't believe there is any subject accident related contribution to her current presentation now." 220In a subsequent letter of clarification dated 25 January 2011, without the benefit of any further consultation with the plaintiff to clarify any matters of detail, Dr Pierides expressed the view that any injury from the accident which is the subject of these proceedings would have been minor, and he thought recovery would have occurred at a maximum of 8 weeks from the accident. He was of the view that the plaintiff's symptoms bore no relationship to a physical injury. The basis of those views was not readily apparent, and in my view, this detracted from the probative value of the views of Dr Pierides. 221Dr Pierides prepared a further report for the solicitor for the defendant, which was dated 17 August 2011. That report was prepared in answer to questions that had been posed to him by the solicitor for the defendant. Dr Pierides did not have the advantage of re-examining the plaintiff again before issuing his supplementary commentary. In my view, in a case involving a claim for psychological disability, that was a significant shortcoming and disadvantageous perspective for him to make diagnostic comments. Dr Lewin - defendant ' s psychiatric expert 222At the request of the solicitor for the defendant, Dr Lewin saw the plaintiff in bifurcated consultations on 6 July 2010 and 22 July 2010 for a total of about two and a half hours. The need for Dr Lewin to have two consultations was because the first consultation had to be terminated due to Mrs Nuhic becoming emotionally distressed, with complaints of pain, headache and tiredness. Dr Lewin found that the plaintiff exhibited abundant evidence of psychological vulnerability. After reviewing her history he concluded there was no history to suggest any permanent impairment of her functioning as a result of psychiatric disturbance prior to 2007. 223Dr Lewin assessed the plaintiff's condition in the following terms: "There was evidence of a Chronic Post Traumatic Stress Disorder and an associated Depressive Reaction in the period prior to 2007. That was associated with widespread complaint of pain symptoms and marked functional impairment. Problems relating to pain resulted in specialist treatment and Mrs Nuhic also consulted a psychiatrist. There appears to have been some benefit from treatment. In the period following the 2007 accident, Mrs Nuhic experienced a disproportionate range of pain symptoms and marked functional impairment. She also described reactive symptoms of depression and anxiety consistent with the diagnosis of an Adjustment Disorder. Mrs Nuhic described a gradual improvement in response to treatment provided by Dr Sokolovic. She feels that her condition began to improve over the last four to six months approximately. I am unable to give an expert opinion with regard to the prognosis in so far as the physical condition is concerned. Mrs Nuhic appears to be responding in a positive manner to the programme of psychiatric treatment and further improvement is a likely outcome. When the psychiatric condition, an Adjustment Disorder, is considered on its own, Mrs Nuhic is considered fit for work. Her long-term work history is noted. When she attempted to resume work as a shop assistant in May 2009, she was overwhelmed by pain symptoms. She complained that she was unable to tolerate standing for prolonged periods or to lift trays of meat in the butcher's shop. She said that she could not tolerate the degree to which her arms and shoulders hurt. When matters relating to pain are put to one side, Mrs Nuhic is considered fit for part-time work at the present time. She has some mild symptomatology, but this is not associated with delusional thinking or any impairment in her judgment. Mrs Nuhic is considered fit for part-time work immediately. She would be fit to participate in any appropriate programme of occupational rehabilitation. With appropriate rehabilitation support, she is considered fit to work on a full-time basis." 224Dr Lewin's subsequent reports were in the form of letters prepared in response to matters asked of him by the solicitor for the defendant and were not based on further interviews with the plaintiff. His responses were principally directed at aspects of the case that had an impact upon the monetary assessment of the pecuniary heads of damage claimed. Occupational therapy reports 225The parties tendered competing reports from the occupational therapists Ms Smith and Ms McLaughlin. The competing positions within those reports will be analysed in connection with damages issues, as they do not directly impact on the process of making findings on injury and disability. Surveillance film and related investigation report 226The plaintiff tendered a surveillance report from M & A Investigations, dated 18 June 2008, and some associated DVD footage taken from outside the plaintiff's home: Exhibit "H". That report and the footage, was commissioned by AAMI Insurance Limited. 227The report incorporated some surveillance report sheets showing that surveillance had been undertaken from outside the plaintiff's home on 6 June 2008 for 1 hour between 4.30pm and 5.30pm without the plaintiff being observed, on 8 June 2008 for 5 hours between 7.00am and 12 noon without the plaintiff being observed, on 10 June 2008 for 6 hours between 6.30am and 12.30pm without the plaintiff being observed, on 11 June 2008 for 7.5 hours between 7.00am and 2.30pm with some observation of the plaintiff. On that occasion some 3 minutes of video time was obtained showing the plaintiff as I shall shortly describe. Finally, the last surveillance in that series was undertaken on 13 June 2008, for 5.5 hours between 12 noon and 5.30pm, without the plaintiff being observed. Some 25 hours of observation produced some 3 minutes of video footage. 228In the 3 minutes of video obtained of the plaintiff from 1.27pm on 11 June 2008, the plaintiff is seen to have emerged onto the balcony of her home, with her husband. She is seen to be smoking a cigarette, make some hand movements, and retrieve something that looks like an item of clothing from a clothesline on the balcony. 229In addition to the above summary, the report also describes the plaintiff as conversing with her husband. That is evident on the video. 230The report described the plaintiff as walking with a steady and even gait. In my view, that comment represents an overstatement of what is seen, as there is an insufficient view of the plaintiff for an insufficient period of time to enable such a judgment to be made. In my view, her gait cannot be usefully gauged from the video footage because her legs and her feet could not be seen as they were obscured by a balcony wall. However, my impression was she was leaning from side to side as she moved about the balcony, I do not consider the even gait comment to have been a fair interpretation. In my view, the activity was so minimal, that nothing turns on this. 231The report stated that the plaintiff was seen turning her head and neck freely, as she glanced at her surroundings. In my view, those head and neck movements were minimal, and only of a relatively short duration, and were not shown to be inconsistent with the plaintiff's evidence. 232The report described the plaintiff as reaching her right hand/arm out over the balcony as she flicked the ash from her cigarette. That movement did not appear to have involved any vigorous, strenuous or repetitive movements. That sequence was not all inconsistent with her case. 233Finally, the report described the plaintiff raising her right arm above head height as she retrieved some washing from the clothesline. The arm movement in question was relatively minor, it did not appear to be under load. It appeared that the plaintiff reached up in a movement to release an overhead clothes peg before pulling the garment or item off the clothesline. In my view, from what little could be seen of that movement, it did not demonstrate an inconsistency between the film and the evidence. 234The report did not say, as was evident on the film, that much of the view of the plaintiff was obscured by what appeared to be a large potted aloe vera plant resting on the ledge of the balcony and in the line of view of the camera. Also, the report did not describe either the plaintiff's right hand gesticulations as she appeared to speak with her husband, nor did it refer to what appeared to be the plaintiff holding a leaf or a frond from an aloe vera plant, and rubbing the end of it onto her face and neck, as if massaging the liquid from that plant into the skin of her face and the crop of her neck. None of the activity that was evident was inconsistent with the plaintiff's evidence or claim in the case. 235The conclusion I have reached on viewing the report and the film is that there is nothing disclosed by the film, which shows a relevant contradiction of the evidence of the plaintiff, or a medical or other history attributed to her.

Resolution of conflicting medical opinions 236The resolution of conflicting medical opinions in this case has been rendered perhaps more difficult than usual where the parties have chosen not to call any oral evidence from any of the medical practitioners from whom treatment and medico-legal assessment reports had been obtained. That comment does not apply with respect to the reports of Dr Mahony, as it was not possible for him to be called. 237The relevant conflicts in the medical evidence on the question of the plaintiff's physical injuries and their consequences are between the opinions of Dr Hamid, Dr Mahony, and to a lesser extent, Dr Guirgis, on the one hand, and Dr Pierides and Dr McGroder on the other. 238With regard to the plaintiff's psychological problems, the conflict is more a question of degree between the opinions of Dr Hamid, Dr Chaudhary and Dr Sokolovic on the one hand, and Dr Lewin and Dr Virgona on the other. 239Essentially, the controversies are between the treating doctors and those who provided medico-legal opinions to the defendant and MAS assessment reports to the MAA. At the core of the differences in the medical opinions are the assumptions made concerning the plaintiff's history and presenting problems, and how those who have examined the plaintiff have interpreted the histories and presentation. 240In approaching these controversies, although the medical and other evidence must be seen as a whole, the logical starting point is to give consideration to the histories taken by the treating practitioners, as well as the diagnoses of those practitioners, and then to examine the basis upon which those diagnoses have been criticised or rejected by the medical experts who have expressed views that are different to those of the treating doctors. 241Before undertaking that consideration, some general observations should be made. 242The first observation concerns the MAS assessment reports of Dr McGroder and Dr Virgona, which were tendered on behalf of the plaintiff. I have already observed that these reports were obtained for the limited purpose of determining whether the plaintiff's injuries and resultant disabilities satisfied the threshold required for an entitlement to claim damages for non-economic loss, and the definition of those injuries. Insofar as those reports contain other diagnostic or critical opinions, apart from matters of statutory certification, I consider that these reports must carry diminished weight on other matters of controversy where the reasoning for the basis of the opinions has not been expressed: UCPR Sch 7, cl 5(c). This comment is not intended as a criticism of the authors of those reports. It is more simply a recognition of the specific and limited purpose for which the reports were obtained. 243The second observation concerns the manner in which the content and terms of the recorded medical histories attributed to the plaintiff were relied upon in the respective analyses, and the considerations of fairness that apply to those analyses, on account of the factors outlined by Basten JA in Mason v Demasi [2009] NSWCA 227, at [2]. 244In this case, there is a significant confluence of those factors. This was especially so with regard to the plaintiff's level of proficiency in English, and the assumptions made by the various medical practitioners concerning the nature or severity of the underlying incident in which the plaintiff was involved. This last factor was at the centre of the medico-legal analysis, and was relevant to assessing the comments of some of the medical examiners to the effect that the plaintiff's presentation was either contrived or exaggerated. Preferred opinions on physical injuries from 2007 accident 245I commence this part of my analysis and consideration with the history, findings and conclusions of the treating general practitioner, Dr Hamid. Since he was the first medical practitioner to have examined the plaintiff following her injury, he was in an especially advantageous position to record critical matters of history and make his findings on examination. 246Unless it can be shown that there was a relevant doubt over the veracity of the matters recorded by Dr Hamid, or that an inherent improbability arises concerning the detail of the matters he was told or had assumed, or had concluded, and in my view no such undermining factors have been shown, then I consider that his observations must be taken to be a reliable baseline. 247In identifying that baseline, I do not consider that anything of significance turns on the fact that the plaintiff chose to see Dr Hamid for treatment for the 2007 accident instead of seeking out an earlier treating general practitioner. As I have already noted, I consider that she gave a reasonable explanation for taking that course. 248Dr Hamid took the history of the plaintiff having been injured when her stationary vehicle was hit from behind whilst she was wearing a seat belt. He recorded that the plaintiff had told him she experienced neck pain, headache, lower back pain and chest pain. He also detected the presence of marked muscle spasm in the neck and in at least one shoulder. He also noted the presence of restricted neck and lower back movements due to the report of pain on testing of both active and passive ranges of movements of those areas. He prescribed anti-inflammatory medication, a muscle relaxant, and physiotherapy for treatment of these problems. 249In my view, that history and those findings, when taken together with the extent of damage to the rear of the plaintiff's vehicle, suggest that in the accident, something more than the occurrence of a minor impact had occurred. 250This is a matter of some importance to understanding the conflicting opinions because Dr Pierides, who on the basis of a single consultation, had assumed and thought that the accident in question was " moderate ". On the basis of that assumption, he expressed the view that by the time of his examination some 6 months after the accident, the plaintiff's injuries had stabilised, and that she had recovered. 251The opinion of Dr Pierides, as to the effects of the accident on the plaintiff, was not shared by the treating orthopaedic surgeon Dr Mahony, a matter to which I will return. 252Dr Pierides seems to have adopted a position of some scepticism towards the plaintiff's presentation at the first consultation he had with her. This is evident from his remarks concerning apparent inconsistencies in the plaintiff's history and her presentation. 253The first of those sceptical remarks was the comment that there was 50 per cent restriction in the range of the plaintiff's neck movements on examination, and a rotation of the neck to 70 degrees whilst speaking with the interpreter. 254Dr Pierides stated that the plaintiff had maintained that posture " without difficulty ". In the absence of an annotation by Dr Pierides to the effect that this was a matter that had been drawn to the attention of the plaintiff to afford her the opportunity of providing an explanation, I consider that observation must be given little if any weight. This is because there was no explanation within the medical evidence that the observed 70 degree neck rotation was a medically significant variation from the 50 per cent restriction on examination he had earlier recorded. 255It appears that this commentary by Dr Pierides made no allowance for the fact that the plaintiff needed to turn to speak to the interpreter for the purposes of the consultation. There was no annotation within the report of Dr Pierides as to whether the additional range of movement observed by him was either painful or pain free for the plaintiff, or whether he had in fact asked any questions of the plaintiff along those lines: Mason v Demasi . 256The second of those sceptical remarks was the comment by Dr Pierides that the plaintiff made only a feeble attempt to elevate both her arms. Putting aside the potential for that comment to have a pejorative meaning, and assuming that it simply meant her attempt was either weak or unconvincing, the above comments can also be made about the subjectivity of the reference to feeble attempts. The absence of any summary of a discussion with the plaintiff as to the possible reasons for such " feeble " attempts, that might explain the comment undermines the utility of the remarks by Dr Pierides. 257Similarly, the third of those sceptical remarks concerned the comment by Dr Pierides of an apparent inconsistency in the plaintiff's straight leg raising movements. 258Dr Pierides noted that the plaintiff had minimal movements of the lumbar spine. In his report, he did not explain the significance of his discrepant observations of 90 degree straight leg raising whilst the plaintiff was in the sitting position (a procedure that was difficult to envisage without further or precise explanation as the sitting position seems to assume an approximate 90 degree leg position at least insofar as the apposition of the spine and the upper leg or thigh are concerned, thus suggesting he was referring to a part or lower leg raising manoeuvre rather than simply a whole leg raising manoeuvre) compared with only a few degrees of straight leg raising he said he was able to elicit from the plaintiff whilst she was in the supine position. 259Without expert medical evidence to reconcile or explain these apparently discrepant matters, where reconciliation is not a matter that is obvious to a lay person, and which requires expert interpretation and explanation, it is not permissible for me to speculate and draw inferences either way concerning the veracity of the plaintiff's lumbar complaints based on the reports of Dr Pierides: Strinic v Singh [2009] NSWCA 15; (2009) NSWLR 419. 260As to the severity or otherwise of the plaintiff's neck injury, there was no discussion from Dr Pierides on the relevance of the initially observed spasms seen by Dr Hamid in the plaintiff's neck and shoulder. These were identified by Dr Hamid as being present on his early assessment of the plaintiff. There was no statement from Dr Pierides that such spasms were required to be present 6 months later, as a prerequisite for a medical acceptance of the plaintiff's complaints. The first report of Dr Pierides was silent on this matter, and a pre-requisite to that effect should not be assumed in the absence of clearly expressed opinion evidence. 261It appears that the sceptical views of the plaintiff's presentation apparently led Dr Pierides to conclude that the plaintiff's condition on presentation at his examination, was not consistent with any significant injury, and was contrived, with minimal attempts at movement. He expressed the opinion that " Mrs Nuhic acted like someone significantly disabled. This is not consistent with the investigation findings, nor with the absence of any significant examination finding. There was a voluntary restriction of movement but no evidence of ongoing injury ". That comment necessarily called for a discussion on the consistency issue. 262In that context, there was no discussion by Dr Pierides on whether the movements he had sought to elicit from the plaintiff, were productive of pain or discomfort to her, or were likely to be so productive. In my view, the absence of a mention of such matters, and the non-clarification of them through explanatory oral evidence, is a factor that diminishes the probative value of the first report of Dr Pierides as to the inconsistency to which he referred. 263In contrast, Exhibit "C" reveals that Dr Hamid had seen the plaintiff on 6 occasions over the interval of time until the first consultation with Dr Pierides. In that time, he saw a continuation of the plaintiff's persisting symptoms of pain without improvement, with the evolution of a reactive depression, as is evident in Dr Hamid's second report. It appears from Exhibit "C" that within some days or weeks of the examination by Dr Pierides, in December 2007, Dr Hamid saw the need to refer the plaintiff to a psychologist. 264In contrast, it is apparent from his report, that Dr Pierides did not mention any possible psychological factors that may have been impacting upon the plaintiff at the time of his examination, and which may have had some influence on both her presentation, and upon his observations. Whilst that may have been a reasonable position for Dr Pierides to adopt in considering the physical consequences of the accident, it could not reasonably represent the whole picture, because psychological factors were also at play in the plaintiff's situation, and these also required relevant consideration. 265In the period leading up to the first examination of the plaintiff by Dr Pierides, between 11 September and 27 November 2007, the plaintiff had been seen and reviewed by her treating orthopaedic surgeon, Dr Mahony on 3 occasions, namely 11 September, 10 October, and 6 November 2007. On each of those occasions, Dr Mahony considered that, amongst the other accident related matters he had described in his serial reports, the plaintiff had clinical evidence of nerve root irritation to the cervical and lumbar spines. He considered the plaintiff had aggravated a potentially irritable spine. Presumably, this was because of the x-ray evidence of degenerative changes he had referred to in his reports. 266It is plain from the reports of Dr Mahony that the observations he made concerning nerve root irritation to the plaintiff's cervical and lumbar spines are explained on the basis of a potential for the plaintiff's spine to become irritated. In the context of his reports, the irritating mechanism Dr Mahony was alluding to, was strain to the affected areas due to the trauma of the accident. That explanation was neither glaringly improbable nor unlikely, and although the reasoning of Dr Mahony was brief, it was reasoning that was complaint with UCPR Sch 7, cl 5(c). 267In comparing Dr Mahony's early assessments to the first assessment by Dr Pierides, it is not clear on the evidence as to precisely which of Dr Mahony's reports were provided to Dr Pierides. However, and significantly, Dr Pierides acknowledged that the plaintiff may have suffered a cervical strain in the accident. That was a statement consistent with the opinions of Dr Mahony. However, Dr Pierides stated that the remainder of Dr Mahony's diagnoses (which I infer from the context to be a reference to the shoulders, upper limbs and low back) " are not able to be substantiated ". There was no UCPR Sch 7 cl 5(c) compliant reasoning for that blanket rejection by Dr Pierides of Dr Mahony's views. In my view, in the absence of such reasons, I consider those views of Dr Pierides should be substantially discounted. I also take that view because there was no discussion from within the evidence that would reasonably permit the conclusion that an occupational medicine physician such as Dr Pierides was any better placed than the treating orthopaedic surgeon, Dr Mahony, to make critical diagnostic conclusions on the basis of a single examination. 268A further reason for discounting the views of Dr Pierides is his manner of assessment that the plaintiff's shoulder injury is not accident related. The report of Dr Hamid, which identified contemporaneous shoulder muscle spasm 3 days after the accident, appears to suggest otherwise. However, in the light of the terms of Dr McGroder's MAS certificate, this issue is of diminished importance. 269From the time of the first examination of the plaintiff by Dr Pierides on 27 November 2007, and in the lead-up to the second examination of the plaintiff by Dr Pierides on 6 July 2010, the plaintiff was seen by Dr Hamid on a number of occasions. Additionally, Dr Mahony had variously prepared 11 reports, commentaries or referrals having seen the plaintiff on at least some 10 or so occasions. 270In my view, although some of Dr Mahony's written reports following those consultations were brief, they nevertheless provided an important continuity framework and vantage point for his assessment of the plaintiff's condition over time. The last of those consultations with Dr Mahony was on 5 February 2010, some 5 months before the plaintiff was re-assessed by Dr Pierides. 271In his July 2010 report, Dr Pierides made some reference to the plaintiff's altered appearance, " her pain behaviours ", and her apparently " poor " and self restricted efforts at movement of her cervical and lumbar spines, rendering it difficult for him " to perform an examination of any relevance ". Although outside the terms of his speciality, Dr Pierides ventured an opinion to the effect that he believed the treatment for the plaintiff's psychological conditions was unrelated to the subject accident. He rejected any accident related contribution to her presentation on such matters at his examination of her in July 2010. At best Dr Pierides conceded the possibility of a closed period of about 6 weeks of disability. This was in the context where his reference to " pain behaviour " must be read as a reference to psychological factors. 272In considering the foregoing opinions I conclude that I should prefer the opinions of Dr Hamid and Dr Mahony to those of Dr Pierides on the question of the plaintiff's physical injuries and disabilities. 273I have formed that view because I consider that Dr Hamid and Dr Mahony held positions of relative advantage over Dr Pierides in examining the plaintiff more frequently over time in order to reach their conclusions. Furthermore, Dr Hamid and Dr Mahony had been exposed to the evolution of the plaintiff's psychological problems leading to the point of referral of the plaintiff to Dr Chaudhary. 274In my view, Dr Pierides has put to one side, and has not appropriately considered the impact of psychological problems in the plaintiff. I consider that in dismissing those problems, Dr Pierides has provided insubstantial reasons for doing so. Furthermore, having regard to the rigour of opinion structure required by UCPR Sch 7 cl 5 (c), which is absent from the reports of Dr Pierides, I consider that Dr Pierides has provided insufficient, non-cogent and insubstantial reasons for his criticisms of the treating orthopaedic surgeon, Dr Mahony, in circumstances where he was not of like specialty to Dr Mahony. For these reasons, in resolving this aspect of the controversy, I prefer the more persuasive evidence of Dr Hamid and Dr Mahony to the more sceptical and less reasoned views of Dr Pierides. 275In coming to these views, I have largely ignored the two items of correspondence from Dr Guirgis that were tendered by the plaintiff. This was because, whilst Dr Guirgis was the treating consultant who took over from Dr Mahony, and he may have had a relevant contribution, his correspondence is largely declaratory and unreasoned, which indicates that I should have little regard for it as opinion evidence from an expert. Instead, I should seek to determine the physical medicine issue from the expert reports which are more cogently expressed than those provided by Dr Guirgis. 276I now turn to the evaluation of which of the conflicting psychiatric opinions should be preferred. Preferred opinions on psychological consequences of 2007 accident 277The analysis of the psychiatric evidence has been to a degree hampered by the absence any reports from the psychologist to whom the plaintiff was referred by Dr Hamid in December 2007. That said, the analysis must nevertheless proceed on the evidence that is available. 278When considering the available medical evidence on the psychological issues, I consider that significant weight should be placed upon Dr Hamid's clinical decision to refer the plaintiff for specialist assessment and treatment of what turned out to be her severe depression by the time she was referred to Dr Chaudhary. 279A difficulty that arises with the report of Dr Chaudhary is that he recorded " there was no medical history prior to the accident ". He also recorded that the plaintiff said " she lived a normal and healthy life until the accident on 2.5.07 ". It is obvious from the evidence that those statements are plainly incorrect, including from the perspective of the plaintiff's psychiatric history. 280As Dr Chaudhary was not called to give oral evidence, it cannot be determined whether the incorrect history was recorded because the plaintiff did not tell him of her prior psychiatric history, or whether this was not explored in detail at Dr Chaudhary's first consultation. Dr Chaudhary did note that there were some communication difficulties because the plaintiff " was not very forthcoming with information ", and he further noted that the plaintiff's husband helped to explain her problems. No interpreter was present at that first interview, as would more likely have been the case if the referral was for a medico-legal consultation. The plaintiff had difficulty communicating with Dr Chaudhary in English. 281In those circumstances, and on the state of the evidence, I do not consider it to be either fair or appropriate to conclude that the limited history recorded by Dr Chaudhary was as a result of the plaintiff withholding the details of her prior history of injury-related psychiatric problems. This is because at page 3 of Dr Chaudhary's report dated 12 February 2009, after summarising the plaintiff's psychiatric and physical symptoms, Dr Chaudhary noted the history of the motor vehicle accidents that occurred in 1983 and 1984, and stated that the plaintiff had " reported similar problems as mentioned in this recent accident ." The history recorded in the 13 February 2009 report of Dr Chaudhary was obviously a summary gleaned from the 9 consultations he had with the plaintiff on 10 April 2008, 9 May 2008, 6 June 2008, 4 July 2008, 1 August 2008, 29 August 2008, 17 October 2008, 14 November 2008 and 23 January 2009. 282It is clear that the plaintiff was being prescribed medication for her psychological problems and Dr Chaudhary was treating her symptoms. He noted that the prognosis for her psychological problems was dependent upon the resolution of her pains as the psychological problems were secondary to her pains. Dr Chaudhary's diagnosis was a clinical one. He stated that the plaintiff had an adjustment disorder with anxiety and depressive moods, and chronic pain syndrome, all being a reaction to the accident on 2 May 2007. 283It is plain that Dr Chaudhary did not have a complete history. That is a matter that affects the weight of his report. 284Another matter that affects the weight of his report is the breakdown in the clinical relationship between himself and the plaintiff. Evidence of this emerged from the plaintiff, who described being told by Dr Chaudhary not to return to see him because he could not help her any more. This was in circumstances where the plaintiff was suffering sleepiness, profuse sweating and terrible nightmares in conjunction with the medication which Dr Chaudhary had been prescribing for her. In addition, they did not share a common language. 285If the only psychiatric evidence tendered in these proceedings was that of Dr Chaudhary, his opinions would have to be weighed carefully, and discounted to a degree because of the limited history upon which his opinion was based. However, Dr Chaudhary's opinion must also be weighed alongside the other psychiatric opinions. 286In that regard, I consider the evidence within the reports of Dr Sokolovic to be highly relevant, and of great significance to achieving an understanding of the true position concerning the nature, extent and cause of the plaintiff's psychiatric problems. This is because Dr Sokolovic also saw the plaintiff for assessment and treatment over time at the request of Dr Hamid. As such he had a particular advantage of being able to review aspects of the plaintiff's earlier injury and psychiatric history, as well as being able to review and form an opinion of the plaintiff's emotional and psychological issues on successive occasions in the course of his psychiatric treatment of her, unlike the other psychiatrists who examined the plaintiff for the purposes of these proceedings. 287Dr Sokolovic also had the advantage over Dr Chaudhary in that he was able to communicate with the plaintiff in her own language. 288After reviewing the earlier accident and psychological history, Dr Sokolovic made the following incisive observation concerning the prior accident history: "According to the history given by Zineta and corroborated by her husband, she suffers from chronic pain as well as numerous mental symptoms, such as fragmented sleep and nightmares, problems concentrating on tasks requiring cognitive activity and also a reluctance to be involved in travelling in traffic or motor vehicles. Unfortunately, though her symptoms of chronic pain were addressed, no attention was paid to her mental symptoms. As time passed, Zineta's general health condition gradually improved. Her psychosocial functioning approached its previous levels, and with encouragement from her husband she was successfully involved with various studies at her local Tafe. She also became involved with her children's school, contributing to parental meetings. These improvements continued, and she was eventually able to find employment at York Smallgoods as a packer and general helper. However, on 2 May 2007, Zineta was involved in a third traffic accident. Dr M. Chaudhary, Psychiatric Consultant, gives a description, in part, in his report of 12 February 2009..." 289This was a more detailed and accurate history than that which had been obtained by Dr Chaudhary, and also substantially reflected the evidence of the plaintiff, with one relatively minor exception. 290There is one inaccuracy recorded in the above summary prepared by Dr Sokolovic. This relates to the reference to her employment at York Smallgoods. The error is one of chronology. Although the plaintiff had sought employment with Mr Spehar's company before the 2007 accident, she had not obtained such employment at that stage. For the purposes of assessing Dr Sokolovic's analysis, I do not consider that identified inaccuracy to be significant, having regard to the reasoning within his opinion. 291Dr Sokolovic also recounted the history of the plaintiff having suffered a collapse following the consultation with Dr McGroder for a MAS assessment. In his report, Dr Sokolovic set out the text of the plaintiff's written complaint to the MAA concerning her impressions of aspects of that examination by Dr McGroder, which she found confronting and upsetting. This apparently led the plaintiff to suffer a syncopal event later on the same day that she was examined by Dr McGroder. 292Dr Sokolovic took a very detailed history of the plaintiff's post-2007 accident complaints as follows: "Upon referral by Dr K. Hamid, Zineta was first seen on 30 April 2009 at her home, where opportunity was taken to speak to her husband Himzo, her two children, and observe their family life. Zineta impressed as a casually dressed middle-aged woman of ordinary build, though moderately overweight. Initially she was treated alone, though she was later joined by her husband and children who contributed to the details of her health and home situation. She was oriented to time and space, but had difficulties giving specific details regarding her previous treatment. Subsequent to her individual assessment, Himzo provided a more detailed picture of her medical history. When she was being treated alone, Zineta was tense and dysphoric, and showed signs of a difficulty concentrating on the interview. She was obviously emotional, and when details of the traffic accident of 2 May 2007 were approached for discussion she displayed affective incontinence, spontaneously bursting into tears. She complained of frequent neck pain triggering headaches, affecting her ability to concentrate or get to sleep. After being tactfully settled and encouraged, Zineta explained that the accident was particularly shocking and stressful as her car was stationary at the time of collision, so the impact was entirely unexpected, leaving her dazed though still conscious. Her memory of what had happened was dimmed until the police arrived at the scene and spoke with her. Zineta was against the idea of taking an ambulance to hospital as her previous experiences with this were very stressful. Her car was still operable, so she drove herself home and did not seek medical assistance. Once at home she stayed in bed for a few days, experiencing pain in her neck, shoulders, back and legs. Zineta's condition gradually deteriorated, despite her consumption of analgesics, until finally, on 5 May 2007, she attended the office of Dr Hamid. He gave her encouragement, stating that her condition was not serious, and prescribed some medication which she cannot remember. He recommended further investigation of her injuries. Zineta believes that her condition was worsened by the memories of her accidents disrupting her sleep, causing her nightmares and great stress. Over time she became exhausted due to lack of sleep, even though she spent most of her time in bed. She felt unable to concentrate on any tasks in the home, and was not capable of dealing with even simple duties. To her shame, her usual duties had to be taken over by husband and children. Zineta spoke of her fear of traffic, and how she was reluctant to be involved in it in any way. She explained that as her pain had continued to increase, she sought treatment from Dr G. Mahony, who referred her to numerous investigations, the processes of which she found very disturbing. She was also referred to Psychiatrist Dr M. Chaudhary, who had difficulties treating her because her level of English had deteriorated since the accident. Her husband would escort her to these sessions and filled the role of interpreter. Often, she did not understand the doctor's questions, but still found him pleasant and caring. Zineta was not able to recall the names of her medicaments, though she brought samples of Avanza and Diazipam, besides numerous analgesics. Her sleeping had not been improved by this regimen, and she still suffered from nightmares. Zineta's husband explained that since her accident she had changed as a person. She was now constantly anxious and unable to attend to her duties in the home. Her libido had been entirely curtailed. Himzo was most worried by his wife's extreme emotions at mention of any of her accidents. He described how she would cry when these details were discussed, and so naturally they were avoided in conversation. Zineta's husband was able to provide some details about her earlier traffic accidents, their effect on her health and the treatment she received as a result." 293It is a matter of some significance that over the time that Dr Sokolovic was treating the plaintiff, including at the time of his first report dated 22 March 2010, he had observed and reported moderate improvements in her psychological problems over the course of those events. I shall return to the matter of the medications prescribed by Dr Sokolovic in that period when considering the criticisms that Dr Lewin has directed at Dr Sokolovic's prescription of the drug Zyprexia for the plaintiff's treatment. 294In his 22 March 2010 report, Dr Sokolovic initially concluded that the 2007 accident resulted in a more severe and chronic form of PTSD than was the case with regard to the plaintiff's previous accidents. He also noted the plaintiff to have developed chronic pain syndrome, psychosocial dysfunction and further changes to her personality. He predicted that any plateauing of the plaintiff's level of recovery would not be to the previously achieved levels of recovery from the earlier accidents. He stated the plaintiff would remain vulnerable to stressors. 295On 24 February 2011, which was the date of his last report, Dr Sokolovic brought his previous report up to date by noting that he had in the interim continued his treatment of the plaintiff. He noted that she had continued to suffer numerous somatic symptoms including neck pain, chronic pain in both shoulders as well as in a section of her lumbar spine. From a clinical perspective, he observed that the plaintiff's ongoing pain has proved a hindrance to the improvement of the plaintiff's post-traumatic stress symptoms. 296Dr Sokolovic was in a particularly advantageous position to assess that factor, having treated the plaintiff for earlier psychological problems: Exhibit "M". 297In his last report, Dr Sokolovic identified ongoing problems of difficulty in coping with daily life, having anxiety, sleeping problems, nightmares, and fluctuating symptoms of depression, and asthenia, which is commonly understood to be an abnormal physical weakness or lack of energy. In context, this seems to be an alternate description to Dr Pierides' reference to " feeble " attempts at movement. 298It is plain from his reports, that as the treating psychiatrist, Dr Sokolovic had the advantage of observing and treating the plaintiff's psychological problems over time and on a number of consultations. Additionally, he had the advantage of seeing the plaintiff in her home and in her family setting. This is a matter of some importance, because it was not suggested to the plaintiff's daughter Ms Nuhic, who was present at some of those psychiatric sessions in the home, that her mother had behaved uncharacteristically in the presence of Dr Sokolovic, or had told him matters to do with her presentation and problems which were incorrect. Accordingly, I consider the observations and insights of Dr Sokolovic to be of considerable probative value when compared to the more limited observations and commentaries provided by Dr Lewin and Dr Virgona. 299When Dr Virgona undertook his MAS assessment of the plaintiff's psychological problems, he certified her as having a chronic adjustment disorder with mixed anxiety and depressed mood caused by the accident in question. That assessment was expressed in the terms required by the published assessment manuals and criteria prescribed by statute to be used when assessing motor accident injury claims to determine whether a 10 per cent whole person impairment had been reached. 300A difficulty with Dr Virgona's evidence is that he was provided with materials that did not feature in the evidence. This included some solicitor's correspondence of unknown content, and a statement from the driver of one of the vehicles involved in the 2007 accident, Mr Taha, and a document of unknown content, described as " Annexure A ." 301Dr Virgona took a history from the plaintiff that traversed personal and psychosocial matters, recent and more distant-in-time accidents, current symptoms, and current treatment. In that regard, Dr Virgona noted the medication regime prescribed by Dr Sokolovic, namely Endep 50 mg twice daily, and the anti-psychotic Zyprexia at night. Unlike Dr Lewin, Dr Virgona made no critical comment on the prescription of Zyprexia for the plaintiff. 302Dr Virgona reviewed the 2 July 2010 report of Dr McGroder, and the 22 November 2007 report of Dr Pierides, along with the other reports that he listed. He noted Dr McGroder's comment that the plaintiff exhibited gross abnormal pain behaviour and inconsistent exaggerated responses. He also noted his own comment that during his interview of the plaintiff, her emotional responses, which I note from page 9 of his report refers to the plaintiff being in tears, " often appeared to be incongruent to the matter under discussion ". As the underpinning details of that comment, and the reasoning behind it were not exposed for analysis, and because the comment was expressed in " apparent " but not conclusive terms, I consider that little can be made of it in terms that could be reasonably said to be critical of the plaintiff. 303Without a detailed exploration of that issue through a process of transparent reasoning that enabled a consideration of the relative appropriateness or otherwise of the plaintiff's reported tearfulness in relation to the detail of the matters under discussion, I consider that it would be unfair and inappropriate to make credit findings against the plaintiff on such subjective comments, even though the comments were made by a medical assessor. This is especially so where the circumstances of the engagement of that assessor did not require him to be bound by the rigour of reasoning demanded by UCPR Sch 7, cl 5(c). 304Notwithstanding those comments, Dr Virgona nevertheless concluded his report by accepting that the plaintiff's chronic adjustment disorder with mixed anxiety and depressed mood, were caused by the accident in question. On an overall view, that conclusion was not vastly different in terms to the opinions of Dr Sokolovic and Dr Chaudhary, and to this extent, no relevant conflict arises. It is simply a variation of degree. 305An area of conflict between the report of Dr Virgona and the plaintiff's experts is that in discussing the plaintiff's degree of whole person impairment, Dr Virgona had stated that the plaintiff had exaggerated her symptoms. 306In making that statement Dr Virgona did not discuss the detail behind that opinion, nor did he appear to consider or exclude a more benign interpretation of the circumstances. At page 11 of his report, in connection with the assessment category criteria of " Concentration, Persistence and Pace ", Dr Virgona stated that the plaintiff reported some concentration impairment, forgetting things, being able to prepare meals, and being able to " attend " throughout the interview. Given that the interview was conducted with an interpreter, I do not understand the significance of the reference to the " pace " of the interview, since the interposition of an interpreter would have slowed down the pace of the interview somewhat. 307Dr Lewin seems to have taken something of a critical view of Dr Sokolovic's analysis. 308This is evident from his first report dated 22 July 2010, which was the only one of his reports that was based on an interview with the plaintiff. In that report he drew attention to the fact that in his reports, Dr Sokolovic had not made a distinction between somatoform disorders and other psychiatric conditions as detailed in the guides, which I infer to be a reference to the guides for the evaluation of permanent impairment used by MAS assessors. In this regard, it appears that Dr Lewin may have confused his examination with a MAS assessment, noting from his CV that he is a MAS assessor. In any event, there appears to be no practical significance in the distinction that was identified. 309This is also evident from Dr Lewin's last letter, which was dated 2 September 2011. That letter was a reply to correspondence from the defendant's solicitor, and was not based on a further examination of the plaintiff. In that letter Dr Lewin made reference to the plaintiff having been prescribed the psychoactive drug Zyprexia, stating that it is commonly used in the treatment of schizophrenia, and would not be regarded as an evidence based treatment in the management of an adjustment disorder. 310That is not a criticism that is capable of being resolved in these proceedings because Dr Sokolovic's reasons for prescribing that drug in the dosage taken by the plaintiff was not challenged through cross-examination of Dr Sokolovic. In those circumstances, and on the evidence in this case, where a legally qualified medical practitioner has prescribed medication for a particular purpose, especially where the result has been an improvement in symptoms, it is not open to a court to find that the medication in question should not have been prescribed. In the absence of such evidentiary challenge, it must be assumed that Dr Sokolovic had a therapeutic reason for prescribing Zyprexia. There is no evidence of any background discussion between Dr Lewin and Dr Sokolovic on the issue. In the absence of any evidence to the effect that the prescription of Zyprexia was harmful or not indicated for the plaintiff, I consider that the point made by Dr Lewin goes nowhere. 311In his initial report, Dr Lewin expressed interest in considering the clinical records of Dr Sokolovic. There is no indication as to whether this was arranged for him by way of subpoena or otherwise. 312In reviewing the plaintiff's history, Dr Lewin confirmed that there was abundant evidence of psychological vulnerability in the plaintiff. He diagnosed an adjustment disorder according to the assessment guidelines. This was in the context of the plaintiff's complaints of anxiety and depression in the aftermath of the 2007 accident. 313Dr Lewin stated that when matters of pain are put to one side, the plaintiff was considered fit for part time work " i mmediately ". Dr Lewin's report did not seek to rationalise the analysis of putting the plaintiff's complaints of pain to one side in a psychiatric assessment. 314In the context of this case, an assessment that puts the issue of pain to one side where other opinions refer to the pain as the perpetuating cause of the psychological problems, seems difficult to understand and to justify. Furthermore, I do not consider that such an opinion should be preferred over the opinion of the treating psychiatrist. 315Whilst the opinions of Dr Lewin as opposed to those of Dr Chaudhary and Dr Sokolovic differ on matters of emphasis, since Dr Sokolovic has treated the plaintiff since the 2007 accident, and has based his analysis on examinations and treatment over time, I prefer his opinions to those of Dr Virgona and Dr Lewin.

Findings on injuries 316The plaintiff's injuries and disabilities have been described in her own evidence, in the motor accident claim form, and in the medical histories that have been summarised by those who have examined her and reported on her condition. Having accepted the plaintiff as a credible witness, and having examined the medical and other evidence in some detail, I consider that in this case it is appropriate to draw upon those sources for the purpose of identifying my findings concerning the effects the 2007 accident had upon the plaintiff: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 317The plaintiff's injuries were of a physical and psychological nature. Both categories of such injuries were occasioned to the plaintiff against a background of vulnerability to injury of a physical and psychological nature. 318In that regard, the underlying condition of the plaintiff's cervical and lumbar spine was that it was affected by degenerative changes, either from wear and tear, and/or from her previous history of injury to those areas, thus constituting a vulnerability or predisposition in the plaintiff to those areas becoming irritated by further injury. 319Similarly, the plaintiff's previous history of psychological trauma, which had resulted in her suffering from previous episodes of PTSD due to earlier traumas, constituted an underlying psychological vulnerability for her to develop PTSD as a result of the trauma of the 2007 accident. In that accident, her vehicle was struck from behind with sufficient force to cause significant damage to the rear of her vehicle and for her to be thrown about in the cabin of her vehicle whilst restrained by her seatbelt. 320I am satisfied that in the events of the 2007 collision, psychologically, the plaintiff initially suffered an emotional shock. She was not expecting the collision and the fact that it occurred suddenly and without warning had shocked and upset her. She stated that she did not know whether she had hit her head in the accident. Whilst it was conceivable that she might have struck her head, for example on the side of the door pillar when she was thrown about within the cabin of the vehicle, there was no evidence that this occurred. Her incomplete awareness of the events immediately after the accident was understandable as a result of the shock of the collision without the need to speculate on whether or not she had hit her head in the collision, although Dr Mahony thought she should be investigated by neuroimaging studies. 321I am satisfied that in the collision, the physical injuries sustained by the plaintiff were soft tissue in nature, and comprised strains to the cervical spine, the thoracic spine and the lumbar spine. She also suffered an injury to the front chest wall, which appears to have been due to the wearing of her seatbelt. 322In addition to the strain to the plaintiff's thoracic spine, the effect of the straining injuries to the plaintiff's cervical and lumbar spines was to cause nerve root irritations to those regions in association with underlying degenerative changes, as was recorded by Dr Mahony. 323A difficulty has emerged as to the findings of injury from the subject accident. This is because there was some debate within the evidence as to whether the plaintiff also suffered injury to her shoulders and elbows. This was because Dr Mahony had identified sub-acromial bursitis to the left shoulder and evidence of a labral tear, as well as capsulitis and supraspinatus tendonitis of the right shoulder, as well as the presence of bilateral epicondylitis. The MAS report of Dr McGroder did not relate the plaintiff's shoulder problems (or the complaint of bilateral epicondylitis) identified by Dr Mahony to the accident. That position is conclusive of the fact: s 61(2) of the MAC Act . 324That is despite the fact that Dr Hamid had contemporaneously recorded the presence of shoulder and neck muscle spasm on his examination on 5 January 2007, and there have been consistent complaints of shoulder problems since the accident, this would tend to suggest that the plaintiff did in fact injure her shoulders in the accident in question. 325Notwithstanding that analysis, the MAS certificate must be taken to be conclusive that the plaintiff's shoulder problems and epicondylitis problems are not due to the subject accident even though it was obtained for the purpose of achieving an administrative determination of whether the plaintiff's injuries satisfied the threshold of whole person impairment that would permit a claim for damages for non-economic loss. 326Were it not for the statutory provisions, on the shoulder injury issue, on a logical analysis, I would have preferred the expert opinion of Dr Mahony, supported by the findings of Dr Hamid to the certificate and opinion of Dr McGroder. The evidence of those doctors acknowledged compliance with the Expert Witness Code, compared to the report of Dr McGroder, which did not have the same character, and which could not be tested, in circumstances where the finding of Dr Hamid that the plaintiff had shoulder spasm was not challenged. 327Accordingly, I am satisfied that the 2007 accident caused the plaintiff to sustain injury to her cervical spine with associated neck muscle spasms, her thoracic spine, her lumbar spine, and her anterior chest wall: s 5D and s 5E of the CL Act . 328There was no evidence that the plaintiff either injured her elbows or made early reports of complaints concerning her elbows. In those circumstances, I am not satisfied that any complaints of elbow problems or bilateral epicondylitis were caused by the 2007 accident: s 5D and s 5E of the CL Act .

Findings as to ongoing disabilities 329I am satisfied that since the 2007 accident, the plaintiff's physical injuries as found above have had, and continue to have, significant physically deleterious and disabling effects on her day to day existence: s 5D and s 5E of the CL Act . 330The plaintiff suffers from pain, discomfort, and restriction of movement of her cervical spine. This is because the underlying vulnerability of her cervical spine to irritation from injury has resulted in ongoing symptoms, with some guarding of neck movements. These include referred occipital pain, and the referral of pain and a feeling of pins and needles into her upper limbs and hands. 331As well as having pain referred from the neck to the upper limbs, she also has pain in the thoracic spine and in between her shoulder blades at the back. 332The plaintiff also suffers from pain, discomfort, and restriction of movement of her lumbar spine. This is also because the underlying vulnerability of her lumbar spine to irritation from injury has resulted in ongoing symptoms. These include the referral of pain into her lower limbs. She also has the sensation of pins and needles in her right leg and foot. The referred pains seem to have settled to a degree. 333The plaintiff's physical pains limit her physical functioning. The two opposing occupational therapists have come to differing views on the plaintiff's ongoing physical limitations. It is difficult to resolve those differing views without oral evidence as to the nature and extent of the functional assessments that those experts had undertaken in relation to the plaintiff. 334Nevertheless, I consider that Ms Smith's summary of the plaintiff's functional problems should be preferred as it appears to me that she has carried out a more detailed functional assessment of the plaintiff in her home. 335I am satisfied that the plaintiff has continuing difficulties with prolonged sitting and standing, as well as difficulty with bending, squatting, kneeling and carrying. She also has difficulty pushing and pulling shopping trolleys and negotiating stairs. She is unsuited to standing on ladders and she has a reduced tolerance for walking. 336These problems, and the plaintiff's experience of pain have given rise to a need for her to take medication. One of those medications was the non-steroidal anti-inflammatory drug Voltaren. In that regard, Dr Hamid's records note that the plaintiff developed epigastric pain in conjunction with the use of that medication. She has also experienced vomiting and nausea on occasions. 337The plaintiff also developed dizziness, and has had several blackouts or syncopal events, which appear to have been caused by the accident. Her dizziness has prevented her from pursuing water-based activities, including hydrotherapy that had been recommended to her. She has developed insomnia and the effects of the accident have given rise to significant mental effects for the plaintiff. 338In addition to her sleeping problems and headaches, the plaintiff suffers from regularly occurring nightmares. She has bad dreams and flashbacks about the accident, and she wakes at night with a sense of fearfulness. She finds it difficult to get out of bed in the mornings. She has become nervous and stressed during the daytime. She has become anxious and she has become fearful in connection with cars, including when riding as a passenger. 339She becomes upset, agitated and tearful when having to speak about the accident and its consequences upon her. He memory and concentration have become impaired as a result of the psychological consequences of the accident. Her presentation is that of a flat affect, as has been remarked upon by some of those who have examined her. She has been diagnosed as having asthenia, or abnormal physical weakness, and lacking in energy. 340Her treating general practitioner Dr Hamid diagnosed her as having a reactive depression consequent upon her injuries. That depression has also been variously characterised according to DSM IV criteria as being an adjustment disorder with mixed anxiety and depressed moods secondary to the experience of pain, chronic severe PTSD and chronic pain syndrome. 341I accept the opinion of her treating psychiatrist that the plaintiff's asthenic traits have rendered her more receptive to the experience of pain from injury. That view is consistent with the opinion of Dr Lewin to the effect that there was abundant evidence in the plaintiff of psychological vulnerability to psychological trauma. In this sense, her symptoms have been magnified for her as a result of her previous cumulative experience of pain and psychological problems from previous injuries, even though she had largely recovered from the effects of those earlier accidents before the 2007 accident had occurred. 342The prognosis for the plaintiff's psychological disabilities that I have summarised, is dependent upon the resolution of the plaintiff's pains that flowed from her physical injuries. There is no sound reason for concluding that these matters will resolve in the short term.

Issue 3 - Assessment of damages 343As a result of the MAS assessments undertaken by Dr McGroder and Dr Virgona, by which the plaintiff has been assessed as not having met the necessary statutory threshold of impairment concerning her injuries and disabilities, she is not entitled to make a claim for non-economic loss. This does not mean the plaintiff was not significantly affected by the injuries in question. It merely means that the application of the regulatory criteria has resulted in the plaintiff being precluded from obtaining damages for non-economic loss for pain, suffering and loss of amenity of life. In the paragraphs that follow, after identifying the plaintiff's probable remaining life span, I set out my assessment of the plaintiff's entitlement to an award of damages.

Life span 344An assessment of some components of the plaintiff's entitlement to future damages first requires identification of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 56, this being the plaintiff's age at trial and, in the absence of any medical or other evidence suggesting the plaintiff may have a decreased life span, I assess the plaintiff's probable remaining life span to be in the rounded down statistics based figure of 29 years.

Economic loss 345The plaintiff claims that as a result of the 2007 accident, her earning capacity has been impaired, and consequently, she claims economic loss in a lump sum amount of $50,000 by way of a buffer. In contrast, the defendant submitted that there should be no award for economic loss, by way of a buffer or otherwise. 346In support of her claim for damages for economic loss, the plaintiff tendered as Exhibit "D" a bundle of 12 items comprising materials that demonstrated that in the past, she had exercised her earning capacity, and had undertaken more recent attempts in 1998 and 2007 at improving her language skills. 347That exhibit comprised a series of 4 group certificates for the 1981, 1982, 1983 and 1984 years evidencing her employment with Standard Telephones and Cables Pty Ltd in those years: Tabs 1 to 4. There was also a group certificate for the 1989 year evidencing her employment with Ivan's Butchery Pty Ltd between 1 July 1988 and 28 August 1988: Tab 5. There was also a series of payslips showing wages for the period 16 July 1983 to 29 October 1983: Tab 6. There was also a notice of assessment for the 1983 year: Tab 7. There was also a series of copied pages from a wages book showing that the plaintiff worked as a casual cleaner at a Yennora shop between 13 September 1992 and 25 April 1993: Tab 8. There was also a certified copy of a Certificate of Final Examination from the School of Commercial Catering, in Bihac in the former Yugoslavia, showing the plaintiff had attended that school in 1974 and 1975, and had satisfactorily completed her examinations: Tab 9. In addition, there were transcripts of the plaintiff's academic record from the Eastern Sydney Institute of TAFE for 1996 and 2007 showing the plaintiff has successfully undertaken some courses in the basic use of the English language: Tabs 10, 11 and 12. 348Exhibit "D" certainly shows that in the past, before her fall in 1993, and before she took on the role of carer for her husband, she had successfully exercised her earning capacity. 349Notwithstanding the materials in Exhibit "D", which provide the foundation for a claim for economic loss, in order to arrive at a concluded view of the plaintiff's probable ability to exercise an earning capacity in 2007 and thereafter absent her injury in that year, including for part-time employment, other counter-veiling factors need to be considered. The analysis on this point is as follows. 350First , at the time of the 2007 accident the plaintiff had been out of the workforce for a long time, and this in itself, together with her injury history, as was explained by Mr Spehar, was a potential obstacle to an employer taking her on as an employee at her age. On the other hand, Mr Spehar gave what I considered to be impressive evidence as to the availability of work and the turnover of positions within his organisation, which suggested that once the plaintiff had been offered a position in his business, if she was fit to work as she thought she was, she would have gained, and would most probably have been able to sustain, what I considered was work that was not particularly arduous physical work. 351Secondly , the plaintiff had to carry the burden of household responsibilities as the carer for her husband who was ill, and to manage her home. This was the basis upon which she had been the recipient of a carer's pension since 2004, and the need for her husband to have a carer had not diminished as at 2007, even though one of her husband's serious illnesses is apparently in remission. Against that view, in 2007 the plaintiff's daughter was aged 18 years, and her son was aged 10 years, so it would appear that the ages of her children, and any need for the plaintiff to be on hand to provide the care and assistance that a parent would normally be expected to provide, was not of itself inconsistent with the plaintiff at the same time committing herself to either a part-time or full-time job of the kind or similar to that which Mr Spehar had offered to her. 352Thirdly , the plaintiff had a medical history, which indicated that the condition of her spine made her potentially vulnerable to irritation or flare-up of symptoms from further injury. She was therefore more likely to be at risk of sustaining an injury to her neck or her back, for example, from activities involving lifting, bending, carrying or stacking, that may not have affected someone without that underlying vulnerability. Against that proposition, the work itself as described by Mr Spehar and the plaintiff did not seem to be so physically arduous that it required an assumption that the plaintiff was likely to find herself unable to cope with the physical demands of such work, or was necessarily going to sustain further injury in the course of such work, had she not been injured in the 2007 accident. 353In my view, although the foregoing considerations do not point to a definitive and calculable claim for economic loss, neither do they negative a real scope for the plaintiff to have been able to exercise her potential earning capacity, either in 2007, or beyond that time until the present time. 354After the effects of her earlier accidents had receded, as she has stated, and as I have accepted, the plaintiff clearly had the option of seeking to earn income, and clearly that was a preferable course to remaining as a welfare recipient, when it is well known that status is attendant with a diminished lifestyle on account of a very modest income level, as that is the nature of welfare income. The plaintiff clearly had an incentive for seeking out work rather than relying upon a welfare pension, in either part or whole. In this regard, I therefore consider that the plaintiff not only had an earning capacity that was likely to be exercised by her had she not been injured, but that such capacity has been damaged by the effects of the 2007 accident, so as to be productive of economic loss. 355The evidence which supports the claim for impairment of earning capacity comes from the plaintiff's attempt, in May 2009, to carry out the work which Mr Spehar had assigned to her after he had offered her a position in his business following her earlier application for employment. The plaintiff was unable to continue with the work and had to leave work after a short trial because of pain and her need to take rest breaks. I do not accept the challenge the defendant made to that evidence. That inability had no relationship to any shoulder or elbow problems. It appears from the evidence of the plaintiff and the medical evidence that it was caused by the conditions affecting her neck and her back. 356The plaintiff had a duty to mitigate her loss: s 136 of the MAC Act . Her application for employment was within her previous work experience and it was reasonable to seek out that type of work. I do not accept that the application in question to Mr Spehar was a cynical attempt on her part to bolster her claim. I accept the evidence of the plaintiff as to the fact that she genuinely made the application to try and obtain work, as was her duty: s 136(1) of the MAC Act . I also accept Mr Spehar's evidence that he offered her a position in the ordinary course of his business. He impressed me as an astute and successful businessman. I am satisfied that there was nothing irregular in the manner in which Mr Spehar had offered the plaintiff the position. I also accept the plaintiff in that she was unable to continue in that work trial because of the complaints of pain and inability to continue, as she described. I also accept that such problems still continue to affect her so as to impair her ability to perform a wide range of physical work. 357The plaintiff's lost capacity to derive income stands to be assessed both as to the past 4.5 years from the time of her injury to the date of the hearing, and for the next 4 years until the plaintiff reaches the standard pensionable age for females, namely 60 years. I propose to round that period down to a global period of 8 years. 358Normally such claims are to assessed in two parts, to cover both the past and the future components separately. However, in this case, given the relatively short periods involved, and considering that discounts have to be applied to any approach taken, I consider that in the circumstances of this case, a buffer sum would be the appropriate way of compensating the plaintiff for a loss of earning capacity over the entire period. 359In assessing that buffer I have taken into account the fact that the past and future components have been lumped together and then discounted, and I have applied a higher than usual discount of 25 per cent rather than 15 per cent for the standard vicissitudes. This is a point in favour of the defendant because of the plaintiff's age, her family situation and the vulnerable condition of her spine, as was identified by Dr Mahony. A counter-balancing consideration would be the poor state of health of the plaintiff's husband, the nature of his illness, and the potentially adverse effect on the defendant of a vicissitude of that nature as this could well eventually free the plaintiff of the need to maintain her role as carer for her ill husband. 360Having regard to the foregoing factors, I consider that an appropriate buffer to be awarded to the plaintiff should be the amount of $50,000, as was submitted on behalf of the plaintiff. I have very roughly tested the appropriateness of that sum by measuring its equivalent as a sum projected over 8 years at 5 per cent and discounted by the higher than usual factor of 25 per cent. That analysis reveals that lump sum to be the equivalent of a little over $190 per week net. I therefore consider the buffer sum of $50,000 to be a reasonable allowance for impairment of earning capacity for part-time work in the plaintiff's circumstances. There was no co-extensive claim for commensurate loss of superannuation. 361I therefore assess the plaintiff's entitlement to damages for loss of earning capacity in the claimed sum of $50,000 .

Past domestic assistance 362The plaintiff made a claim for the value of past domestic assistance that was provided in the form of gratuitous care in the sum of $48,170. 363The defendant submitted that on the evidence adduced, there should be no allowance made for this head of damage. That submission was based on both evidentiary and statutory threshold considerations. 364The sum submitted by the plaintiff was identified as comprising two chronologically staged components. 365The first component was for an average of 15 hours per week at $22 per hour over 2 years involving a sub-total of $34,320. The second component was for an average of 10 hours per week in the period to the date of the hearing, namely, $22 per hour for 2.5 years, involving a sub-total of $13,750. The total of those amounts was claimed at $48,070. That submission stands to be evaluated according to the statutory assessment criteria which requires that such damages must not exceed the statutory rate: s 128(5) MAC Act . 366The factual evidence in support of the claim for past domestic assistance came from the plaintiff and her daughter. The claim was also supported by the report of Ms Smith. The reports relied upon by the defendants rejected this component of the plaintiff's claim. 367There was not a great deal of comment within the medical evidence on the question of the need for domestic assistance. I shall summarise the commentary in the paragraphs that follow. 368The report of Dr Mahony dated 4 December 2008 did not make any direct reference to domestic activities. However, Dr Mahony related the advice that in order to minimise an exacerbation of symptoms, the plaintiff was advised to restrict her activities so as not to carry out significant bending, lifting or significant use of the upper limbs: page 3. 369The report of Dr Chaudhary dated 12 February 2009 made reference to the plaintiff discharging her household duties: fourth page. That reference was ambiguous. From the context, I read that comment as a reference to the plaintiff's pre-2007 accident situation. 370The report of Dr Sokolovic dated 22 March 2010 made no direct reference to any inability to carry out household tasks so as to require assistance. Instead, Dr Sokolovic restricted his remarks to stating the plaintiff was unsuitable for employment, citing her PTSD. He also referred to her travel difficulties and the need for the plaintiff to be prompted or prodded in connection with some self-care tasks: page 13. 371The opinions of Dr McGroder and Dr Virgona were non-contributory to the issue of domestic assistance. 372The report of Dr Lewin dated 22 July 2010 stated that assistance in the plaintiff's home was not indicated when the plaintiff's psychiatric condition was considered: page 11. The subsequent correspondence from Dr Lewin dated 23 November 2010 clarified that view by stating that opinion did not extend to a consideration of the need for assistance on the basis of the plaintiff's physical condition: page 2. 373The report of Dr Pierides dated 27 November 2007 emphatically stated that the plaintiff did not " require any assistance with any home duties ": page 7. In the same report, Dr Pierides emphatically stated that the plaintiff " needs no domestic care of any sort ... at any time following the accident ": page 6. He made that comment in connection with his belief that the plaintiff could " perform all activities of daily living without restriction ": page 6. 374In his later report dated 7 July 2010, Dr Pierides recorded some limited comments concerning the plaintiff's daily activities, stating she cooks, she might do some dusting, but does not do the vacuuming. He also noted that the plaintiff's daughter and husband helped her: page 3. 375Later, in the same report, Dr Pierides stated that he believed she would not " have required any significant home care ". The qualifying word " significant ", whilst subjective, implied that some assistance could have been required. This was left unexplored or unexplained. 376In his letter dated 17 August 2011, Dr Pierides conceded that the plaintiff may have needed some domestic assistance for the first 6 weeks due to restricted neck and back movements, following which, Dr Pierides thought she would have been able to return to all work and domestic activities: page 3. The basis of that opinion was not stated. In my view, Dr Pierides has underestimated the extent of the plaintiff's neck and back problems. 377I consider that the opinions of Dr Lewin and Dr Pierides were not definitive of the issue of the plaintiff's need for domestic assistance in that they were not reasoned to a degree that was either compelling or persuasive. In my view, those reports proffered intuitive views only, which indicated to me that I should look to the more specific evidence of the plaintiff and that of her daughter for guidance on this issue. 378The evidence of the plaintiff was that before the 2007 accident, she was capable of, and had in fact attended to everything involved with the running of her household. This involved her doing her own housework, including cleaning, washing, shopping and cooking. The plaintiff said that after the accident, she was not able to do everything and she was unable to continue in those tasks. She said her daughter took on the vacuum cleaning, the cooking, the ironing, the changing of bed linen, the washing, and whatever she could do, from the time of the accident to the present time. The plaintiff estimated the weekly time taken for these tasks in the following terms: " I'm not sure. Maybe ten, even to 15 hours per week ". 379When cross-examined about her ability to carry out housework after the 1993 fall, the plaintiff stated that whilst initially, the pain was quite severe, it gradually diminished, and before 2002, when her husband became ill, he had helped her with the domestic chores. The plaintiff said neither her daughter nor her husband assisted with housework in the period just before the 2007 accident. The plaintiff said she was carrying out those tasks herself and without difficulty. The plaintiff said that she had carried out some light housework, such as dusting, and the preparation of easy meals since the 2007 accident. She did not agree with the proposition that within a couple months of the 2007 accident, she had no impairment in her ability to carry out any of her housework or domestic activities. I found that evidence to be credible, reasonably given, and not glaringly improbable on the evidence as a whole. 380The evidence of the plaintiff's daughter Ms Plema Nuhic was that before her mother's accident, she was not required to assist with any housework tasks. She stated that before the 2007 injury, her mother performed all the household tasks, even though before the 2007 accident, she occasionally complained of back pain. 381Ms Nuhic stated that after the 2007 accident, her mother was in shock, and seemed scared, and she added her observations that she had never seen her mother in such a state before. She stated her observations that the plaintiff ceased being able to do housework, and had ceased cooking the traditional meals of the household. She described her mother as having become very depressed, unable to sleep and waking up crying, and in pain. She described this as representing a big change in her mother. She said her mother was " obviously not the same how she was before the accident ". She thereafter took upon herself the responsibilities of the household, which she came to realise, involved hard work. Before the 2007 accident, she did not carry out any such duties. She undertook that work in two capacities, one during periods when she lived at home, and the other when she lived away from home but visited her family home to assist. 382Ms Nuhic said that her work in that regard involved her doing whatever was required to make the household look decent. This took up almost the whole of her weekend in performing housework because that was the only time she could spare. She said those tasks included washing the clothes, bringing them in from the line, ironing, changing bed sheets, vacuuming, cooking for the whole family, some daily household cleaning maintenance tasks, shopping once a week, and " basically everything around the house ". 383Ms Nuhic stated that the time taken up with these activities varied according to the time of the year and current events. She estimated a range of between 14 to 20 hours per week, at times reducing to 9 hours per week, and then reducing further down to about 6 hours per week. These times were also obviously influenced by her own work commitments, her study course commitments, and her availability to do the work, which no doubt influenced the extent to which the work was carried out. 384Ms Nuhic managed to fit in the domestic assistance she described in between her full time work and her part time studies towards degrees in economics and law, even during the periods when she had moved out of the family home. In the year of the 2007 accident she was proceeding towards completion of an advanced diploma in business marketing and management. Cleary she was a proficient person, who made the time to perform her filial responsibilities at great inconvenience to herself. 385In cross-examination Ms Nuhic confirmed that since over the time since the 2007 accident, she had gradually cut down the number of hours she spent providing assistance to her mother, from 15 to 20 hours per week, down to a little over 6 hours per week, in 3 visits per week of 2 hours or so duration, in addition to helping with shopping. 386I accept Ms Nuhic's evidence on these matters. Her evidence was explored in cross-examination and it was not shown to be in any material way incorrect or improbable. I find that she related her evidence truthfully on these matters, notwithstanding that she did so with some degree of nervousness. 387Having reviewed the factual basis for the claim for past domestic assistance, I turn to a consideration of the reports from the respective occupational therapists, especially since the medical evidence offered only limited insight into the issue. 388The 26 September 2009 report of the occupational therapist engaged by the solicitor for the plaintiff, Ms Smith, dealt with the domestic assistance claim. Ms Smith took a history and then made observations of the plaintiff's various difficulties, restrictions or inabilities with activities involving sitting, standing, bending, squatting, kneeling, crawling, transfers, walking, stair negotiation, overhead upper limb use, climbing ladders, lifting, carrying, pushing or pulling trolleys, retrieving items from the floor, and generally restricted movements: Exhibit "B", Tab 22, pages 14 to 18. Ms Smith also identified a need for some travel assistance because the plaintiff was too nervous to drive: Exhibit "B", Tab 22, pages 17 and 20. In that analysis, any contribution of the plaintiff's shoulder and epicondylitis issues would appear to have minimal contribution. 389I infer from the descriptions in Ms Smith's report, that the restrictions also involved most, if not all of the activities involved in the household activities that were referred to in the evidence of the plaintiff and her daughter, and which I have summarised above. The description of the layout and composition of the plaintiff's home, which Ms Smith included at page 19 of her report, would seem to require to some degree, a significant number of the activities that were described by Ms Smith as restrictions in the plaintiff's ability to perform tasks in the housework sense. 390Ms Smith prepared an analysis of the input of the plaintiff and her daughter, which identified the hours spent by Ms Nuhic in assisting her mother with household tasks since the time of the accident. At pages 22 to 29 of her report, Ms Smith supported a claim for such assistance of an average of 18.5 hours per week between 2 May 2007 to December 2007, 15 hours per week between January 2008 and February 2009, and 10.5 hours per week from February 2009 until the date of her report. 391Those estimates of time are in my view, broadly consistent with the description of household activities that is the subject of commentary by Ms Smith between pages 25 and 29 of her report, which covers cleaning, meal preparation, shopping, washing dishes, bed making, laundry, ironing and home maintenance, where before the injury, the plaintiff was independent in these activities. 392It is significant to observe that the opinions of Dr Pierides to the effect that the plaintiff did not need domestic assistance were not reflected in the opinions of Ms McLaughlin, the occupational therapist retained by the defendant. Ms McLaughlin's assessment of the plaintiff's domestic care needs appears between pages 21 and 27 of her report dated 20 September 2010. 393Ms McLaughlin took note of the medical opinions that were provided to her, which included that of Dr Pierides. She nevertheless supported a claim by the plaintiff for 10 hours per week of domestic assistance for the initial 61 weeks following the accident, 6.16 hours per week for the ensuing 89 weeks, and 2.32 hours for the 18 weeks that followed that last period: Report of Ms McLaughlin, 20 September 2010, page 28. Although Ms McLaughlin had medical opinions available to her, she seems to have principally relied upon her own observations of the plaintiff's abilities following an interview with her. 394In resolving the issue of whether the plaintiff is entitled to damages for past domestic assistance I consider that the medical opinions are of limited assistance for two main reasons. First, those opinions are proffered on a general and not specific basis in that they do not refer to the specific domestic activities which featured in the evidence of the plaintiff and her daughter. Secondly, those opinions are based on intuitive conclusions, rather than upon observations, as was the case with the occupational therapy evidence. 395Accordingly, it seems to me that the polarisation of evidence on the plaintiff's need for domestic assistance stands to be resolved on a factual basis as the medical opinions, whilst emphatic in the case of Dr Pierides, do not deal with the detail of the tasks described in the evidence. 396On a factual basis, I found the evidence of the plaintiff and her daughter compelling and persuasive as to the plaintiff's inability to carry out her pre-accident domestic activities without the assistance provided to her. 397Having reached that conclusion, I consider that the opinions of the occupational therapists, which are more task focussed, are more likely to be of assistance to determining the issue of the extent of the plaintiff's need for domestic assistance, than the more generally and non-specifically framed medical reports. 398The two occupational therapy reports do not advocate the same level of assistance with domestic tasks. However, they do have the common element of acknowledging the need for such assistance, albeit to differing degrees. 399In my view, having formed the view that the evidence of the plaintiff and her daughter reasonably describes the plaintiff's need for domestic assistance, it becomes unnecessary to achieve a detailed reconciliation of the two competing occupational therapists' reports. I consider this position arises because I considered the evidence of the plaintiff and her daughter to be inherently reasonable and factually based on this issue. The issue does not require resolution only by reference to the opinions of experts. 400The foregoing analysis leads me to the view that the plaintiff is entitled to damages for past domestic assistance. The remaining questions in respect of this component of the claim concern whether the threshold required pursuant to s 128(3) of the MAC Act is satisfied, and if so, the assessment of the value of the past assistance that has been provided to the time of trial. 401The threshold for an award of damages of this kind is that it must be shown that a minimum level of assistance has been provided for 6 hours per week for 6 months: s 128(3) of the MAC Act . 402I am satisfied that in the period before the hearing, the plaintiff's daughter provided her with the level of domestic assistance which she and the plaintiff had stated in their evidence. There is no doubt that she did so out of a sense of filial duty. However, that is not the required test for the recovery of such damages. The question to be addressed is what was reasonably necessary in the circumstances to fulfil the need for assistance that was created by the injury. 403In my view of the evidence, an award of damages for domestic assistance that included the value of 15 hours per week for the first 2 years, and 10 hours per week for the remainder of the time to the commencement of the trial, as was submitted, would have the effect of overcompensating the plaintiff. 404I have taken that view because I consider that not all of the described hours were necessarily referrable to the plaintiff's injury based need for assistance. In that regard, questions of efficiency need to be considered. I consider that the number of hours taken by Ms Nuhic to perform the tasks that had previously been performed by the plaintiff needs to be discounted to allow for a factor of reduced efficiency, and because some of the work would have been for her own benefit whilst she lived at the home of her parents. Without intending to imply any criticism of the evidence of Ms Nuhic, it appears that she had not previously been involved in those tasks. I infer from this, that someone who was accustomed to regularly carrying out such housework, would most probably have undertaken the tasks described, in a fewer number of aggregate hours per week. 405The process of assessment of this type of claim is not a perfect one, and the touchstone of reasonableness does not require precision, although the required calculations must have a semblance of precision. Bearing in mind those principles, I consider that the actual hours of assistance estimated by the plaintiff and her daughter must be discounted to identify, as best can be achieved in this process, the core number of hours that were reasonably and necessarily provided to the plaintiff to address her injury based need for past domestic assistance. 406Before making the required assessment, the starting point of the analysis is to recognise that having accepted the evidence of the plaintiff and her daughter, that the assistance that was provided was in fact necessary, having regard to the described services that were provided, and which I consider to have been reasonably provided because of the plaintiff's disabilities. The overwhelming inference is that the statutory threshold requirements have been well and truly exceeded. 407Nevertheless, after applying the discounting factors that I have identified, for assessment purposes, and on account of considerations of reasonableness, I consider that the described number of hours requires reduction. 408The reduction should reflect the hours actually directed at assisting the plaintiff due to her injury related needs and previously unimpeded household tasks. Those hours should not include attendance on the needs of others in the household. The reduction should also take into account the need to compensate the plaintiff for a core number of hours of efficiently provided hands-on care, as distinct from the hours during which the provider of the assistance was in attendance but not actually doing anything that could be characterised as domestic assistance. 409Having regard to those factors, I consider that a realistic and fair number of core and necessary hours provided to the plaintiff, and averaged over the entire period from the time of her injury until the time of the hearing, is 9 hours per week. 410The period from 2 May 2007 until the commencement of the hearing on 3 November 2011, is 4.5 years. The valuation of 9 hours of domestic assistance per week at the rate prescribed by s 128(5) of the MAC Act over 4.5 years yields the amount of $50,386. The calculation of that sum appears in the Appendix to these reasons. 411I therefore assess the plaintiff's damages for past domestic assistance in the amount of $50,389 .

Future paid care 412The plaintiff makes a claim for the value of future paid domestic care or assistance in the sum of $116,550. That claim is calculated at the rate of 6 hours per week, at $35 per hour, using a 5 per cent multiplier for 15 years (x 555). In contrast, the defendant has submitted that no case has been made out for any kind of future care, paid or otherwise. 413The starting point for the evaluation of this component of the plaintiff's claim is my acceptance of the fact that the plaintiff has not yet recovered from the physical and psychological effects of the injuries she suffered in the 2007 accident. The next question is whether this continues to represent an injury based need of the plaintiff. 414Whilst Dr Lewin has stated that the plaintiff does not have a need for domestic assistance as a result of her psychological problems, and whilst Dr Pierides has stated that any need for domestic assistance has now passed, two things need to be said. First, I have not accepted those opinions, and secondly, none of the doctors who have provided reports have expressed any opinion on the combined effect of the plaintiff's physical and psychological problems. Because they have not done so, and because no oral expert evidence was called on this point, where the evidence is silent on the issue, I have to do the best I can to reconcile the disparate positions. 415I have already rejected the proposition that the plaintiff did not need domestic assistance as a result of her 2007 accident. I have also accepted that the plaintiff continues to experience pain and discomfort to the extent that to date, she has needed the domestic assistance of her daughter to attend to the chores of running her household. In my view, it follows that as the need for assistance continues, I should make an allowance for that need for assistance from the present time, and for some reasonable time into the future. 416Unlike the position with past assistance, which has been met by the gratuitous assistance of the plaintiff's daughter, the claim for the future is made on the basis of the commercial cost of meeting that need for ongoing domestic assistance. I consider that approach is justified in this case because it cannot be fairly assumed that the plaintiff's daughter will continue to make the time to attend to providing such assistance. This is because the plaintiff's daughter works, she is about to finish her studies, she no longer lives in the home of her parents, and cannot reasonably be expected to travel there three times per week, or even at all, for the purpose of providing her mother with the assistance she has been providing to date. 417Consistent with the approach I have taken in connection with my analysis of the claim for past domestic assistance, the medical opinions offer little assistance in the analysis of this component of the claim. I also find the evidence of the respective occupational therapists provides an appropriate background to the question. However, in my view, the evidence of the plaintiff and her daughter offer the most relevant, cogent and practically based insight into how I should approach the assessment of this head of damage. 418In summing up the position, I consider that the plaintiff has made good her claim for future paid care, but not to the extent claimed. 419I consider that a proper case for an allowance for paid care at commercial rates has been made out. In that regard, in the absence of evidence of comparative commercial rates, I consider that the claimed rate of $35 per hour, which is one commonly seen and accepted in such claims, is both reasonable and appropriate, and well within the range of figures contemplated by Exhibit "L". 420In the absence of evidence defining the likely period that will be required for the provision of such domestic assistance, I am required to make some sort of assessment doing the best I can on the evidence available, without unfairly favouring the plaintiff or unfairly burdening the defendant. In the circumstances, I consider that a period of a further 5 to 6 years is a reasonable projection period. 421Having regard to the range of possible vicissitudes that might influence this range, including the possibility that the actual range of tasks involved in the running of the household may lessen in the not too distant future if the number of persons in the household is reduced, and because it is possible that the plaintiff's condition will improve in the coming years, as has occurred in respect of the injuries and disabilities from her prior accidents, I consider that a 5 year projection period for an average of 6 hours of domestic assistance per week is a reasonable approach to assessment in the circumstances. I do not consider that the evidence justifies the projection of a claim for future care over the remainder of the plaintiff's probable remaining life span, as was submitted. 422The projection of the value of 6 hours per week of domestic assistance at the rate of $35 per hour, or $210 per week, at 5 per cent over 5 years (x 231.5) yields an amount of $48,615. As I have already applied a discount to the period for projection, no further discount is warranted. 423I therefore assess the plaintiff's damages for future paid domestic assistance in the amount of $48,615 .

Future medication 424The plaintiff makes a claim for the likely cost of future medication, in the sum of $36,687.20, being the projection of $44 per week over her remaining probable life span. 425In contrast, the defendant pointed to the very limited nature of the plaintiff's past pharmaceutical expenses, namely $338.70, to argue that this relatively modest level of expenditure was indicative of the plaintiff's likely future pharmaceutical expenses. 426In my view, that submission is flawed, and it should therefore be rejected. Quite apart from any considerations as to whether or not that amount has been kept artificially low because the plaintiff is on a pension at present, which on the evidence, is necessarily a speculative consideration, the past incidence of that type of expenditure is seldom a useful guide to future expenditure, for a variety of reasons, including the question of what is determined at the trial, of the reasonable future need. Also, it must be assumed the plaintiff will take reasonable steps to mitigate, including by taking prescribed medication. An allowance for such medication should therefore be made. 427The plaintiff's claim for $44 per week was based upon the schedule that comprised Exhibit "E". Those medications, which are prescribed by Dr Sokolovic and Dr Hamid, consist of Zyprexia, Endep, Somac, Pariet and Panadol Osteo. Without evidence, it is not open for the court to analyse the therapeutic purpose of actions of these drugs, as has been in effect suggested by the defendant in seeking to, for example, avoid the ongoing cost of Zyprexia. It is well known that various drugs can have a variety of therapeutic actions and indications when selected for use in the circumstances of particular patients. It is sufficient that a legally qualified medical practitioner has prescribed them for the plaintiff in particular doses on account of her post-injury complaints. Without specific evidence to support the proposition advanced by the defendant, I cannot reasonably entertain that submission: Strinic v Singh [2009] NSWCA 15. 428That said, I do not understand the evidence of these doctors to require the assumption that the plaintiff will need to take these medications for the remainder of her probable lifespan. 429In my view the plaintiff's claim for future medication costs should be approached in the same manner as I intend to approach the claim for future treatment costs, namely a buffer amount, with the rider that the buffer for future medication should contain a more significant allowance for the cost of future medications for alleviating and managing the plaintiff's post injury psychological problems. 430Accordingly, I consider that an appropriate buffer amount should be the sum of $10,000, which I note on analysis to be the rough equivalent of projecting $44 per week on the 5 per cent tables over 5 years. 431I therefore assess the plaintiff's damages for future medication in the amount of $10,000 .

Future medical treatment 432The plaintiff makes a claim for future medical treatment in the sum of $11,673,20, being the projection of $14 per week over her remaining probable life span. 433The average amount of $14 per week was made up of component allowances for general practitioner consultations at 4 times per year, psychiatric consultations at 6 times per year, and an annual consultation with an orthopaedic surgeon which, having regard to the nature of the plaintiff's problems, does not seem to me to be inherently unreasonable. 434Against that, the defendant submits, correctly in my view, that there is no evidence which justifies the plaintiff requiring those consultations as a result of the 2007 accident, and for the remainder of her probable life span. However, that said, I consider that it would be unreasonable to leave the plaintiff uncompensated in the short to medium term for the likely treatment costs of her present physical and psychological problems where those problems seem likely to continue for some time. 435As no medical evidence was called on the issue, and because the claim seems otherwise reasonable, I consider that an allowance of some kind must be made. I consider that the most appropriate method of allowing the plaintiff damages for future treatment costs would be to award a lump sum buffer. I consider that a buffer of $3000, which I note on analysis to be the rough equivalent of projecting $14 per week on the 5 per cent tables over 5 years. I consider this amount is reasonable, particularly as I am proposing to allow the plaintiff the sum claimed for the short term cost of a pain management course, as I consider that it would be reasonable for her to pursue that course as part of her obligation to mitigate, and to pursue the possibility of a beneficial outcome in terms of managing the chronic pain she suffers as a result of her injuries. 436I therefore assess the plaintiff's damages for future medical treatment in the amount of $3000 .

Pain management course 437The plaintiff makes a claim of $5000 for the cost of a pain management course. The defendant does not concede that claim. 438I consider the amount of the submitted sum to be a reasonable one and has a foundation in the medical evidence. The plaintiff has a duty to mitigate: s 136 of the MAC Act . Consistent with that duty I consider that she should be provided with the cost of obtaining treatment aimed at ameliorating the effect her chronic pain and her disabilities have upon her. This is especially so where there is medical support for this claim and where I have awarded limited future damages on the assumption that her condition is likely to improve with treatment. I therefore allow the sum claimed as no evidence was directed to a suggestion that the amount was unreasonable, and it seems otherwise reasonable. 439In this regard, it should be noted that the plaintiff had been unable to pursue physiotherapy and hydrotherapy to the extent recommended by her treating doctors at an earlier point in time. This was because the CTP insurer had declined to pay for that treatment. I consider the evidence justifies the plaintiff being awarded the estimated cost of that treatment now, in order to assist in the amelioration of what has become a complex inter-relationship between her chronic pain and the psychological effects of that pain, particularly where the plaintiff's ongoing psychological problems are influenced by her experience of physical pain. 440I therefore assess the plaintiff's damages for the likely cost of a future pain management course in the amount of $5000 .

Past out-of-pocket expenses 441The plaintiff makes a claim for out-of-pocket expenses in the total amount of $23,437.50. 442The defendant conceded an amount for s 83 expenses in the sum of $4057, and claims that amount as a defence pursuant to s 83(5) of the MAC Act . The defendant conceded that all of the amounts claimed by the plaintiff were in fact incurred, however, the defendant argued that there should be no liability for payment of the cost of the imaging for the investigation of the plaintiff's shoulder complaints, and similarly argued that there should be no liability to pay for the plaintiff's brain scan. 443The basis for dispute of those amounts is that because the appointed MAS Assessor did not attribute the plaintiff's shoulder problems to the accident in question, and because Dr Pierides did not consider that the total body scan was appropriate, and because the plaintiff did not receive a head injury, these amounts should not be the responsibility of the defendant. 444I do not accept that argument. I consider that the plaintiff's medical advisors acted reasonably in ordering such investigations as they thought were appropriate to assist in determining matters of diagnosis, management and treatment. 445The focus of the task of the MAS Assessor was to ascertain the nature of the plaintiff's post-accident complaints for the purpose of determining a level of whole person impairment, which would then determine whether or not an entitlement had been established for claiming non-economic loss. The MAS Assessors were not requested to determine the question of attributability of the claim for out-of-pocket expenses in this case. There is no evidence within the certificates that this was the case for their consideration: s 58(a) and (b) of the MAC Act . 446I do not consider that the MAS Assessor's views on whether the plaintiff had suffered shoulder, elbow or head injuries, should determine the amounts recoverable as out-of-pocket expenses where the reasons for those views are not required to be compliant with the Expert Witness Code: UCPR Sch 7 cl 5(c). 447The defendant's argument proceeds upon what I consider to be an inappropriate hindsight analysis, and I consider that it should be rejected. Instead, I consider that the whole amount for out-of-pocket expenses claimed by the plaintiff was reasonably incurred because they were the natural result of the plaintiff following the investigation and treatment recommendations of her treating doctors, and I allow that sum in full. 448I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $23,437.50 .

Summary of assessed damages 449The above assessments are summarised as follows. (a) Economic loss $50,000.00 (b) Past domestic care $50,389.00 (c) Future paid care $48,615.00 (d) Future medication $10,000.00 (e) Future medical treatment $3,000.00 (f) Pain management course $5,000.00 (g) Past out-of-pocket expenses $23,437.50 Totals $190,441.50

Disposition 450The plaintiff has established an entitlement to an award of damages in the sum of $190,441.50 .

Costs 451The cost consequence of my findings is that unless either party can establish an entitlement to a different order, the defendant should pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered, for which there should be liberty to apply.

Orders 452I therefore make the following orders: (1)Verdict and judgment for the plaintiff in the amount of $190,441.50; (2)The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered, except for any costs involved in the plaintiff's application to re-open her case, such costs to be borne by the plaintiff; (3)The exhibits may be returned ; (4)Liberty 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 COMPENSATION ACT 1999, s 128(4) [9 hours per week] WEEKLY HOURLY PERIOD WEEKS s.128(4) s.128(4) AMOUNT FOR 9 HOURS PER WEEK RATE RATE

1. 03.05.2007 to 18.05.2007 02.14 $916.10 $22.90 $441.05
2. 19.05.2007 to 18.08.2007 13.00 $918.90 $22.97 $2687.49
3. 19.08.2007 to 16.11.2007 12.85 $929.70 $23.24 $2687.70
4. 17.11.2007 to 15.02.2008 12.85 $929.30 $23.23 $2686.54
5. 16.02.2008 to 16.05.2008 12.71 $937.80 $23.44 $2681.30
6. 17.05.2008 to 15.08.2008 12.85 $921.60 $23.04 $2664.57
7. 16.08.2008 to 21.11.2008 13.85 $933.50 $23.34 $2909.33
8. 22.11.2008 to 20.02.2009 12.85 $938.50 $23.46 $2713.14
9. 21.02.2009 to 15.05.2009 12.00 $946.40 $23.66 $2555.28
10. 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $2926.78 11, 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $2774.44
11. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2802.19
12. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2861.18
13. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $2853.08
14. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $2848.45
15. 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $2880.84
16. 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $2965.52
17. 21.05.2011 to 02.11.2011 23.57 $1026.00 $25.65 $5441.13 TOTAL $50,389.01

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: 19 December 2011