Plaintiff v Defendant

DAMAGES - Whether award of pain and suffering damages should be a discounted or apportioned to reflect the consequences or contribution of two subsequent motor vehicle accidents - Award for past and future pecuniary loss.

1 The plaintiff was born on 26 March 1967 in Bosnia. She left school at age 16 or 17. Soon after leaving school, she married; with her husband and then two young sons she migrated to Australia in November 1995.

2 On 15 May 2000, the plaintiff alleges she was involved in a motor vehicle accident on Ferntree Gully Road, Ferntree Gully, when she was forced to swerve heavily to avoid colliding with a motorcycle that had suddenly cut in front of her vehicle (the 'First Incident'). As a consequence of swerving, the plaintiff's motor vehicle spun around on the roadway, eventually colliding with an embankment on the side of the road. The plaintiff maintains that as a result of the First Incident she suffered serious injury.

3 The driver of the motorcycle was not able to be identified, thus the plaintiff seeks damages against the Transport Accident Commission ('TAC') pursuant to s 96 of the Transport Accident Act 1986 ('the Act').

4 At the time of the First Incident, the plaintiff was working as a packer at Arnott's Biscuits. She had been in this employment since 1997. The plaintiff stated she worked as a casual, but it was in effect regular employment.

5 The plaintiff at trial was self-represented. She needed the assistance of an interpreter in providing evidence and asking questions during the course of the trial.

Section 96 of the Act

6 In circumstances where an unidentified vehicle is involved in a transport accident,[1] the plaintiff, pursuant to s 96(2)(a) of the Act, is required within a reasonable time to provide the TAC with a notice detailing the particulars of the circumstances of the accident and the nature of the injuries sustained. Further, pursuant to s 96(2)(b) of the Act, damages are only recoverable upon the plaintiff satisfying the Court that the TAC has not been materially prejudiced in its defence by any failure to give the notice at the proper time or by any insufficiency in the notice.

7 In submissions, Mr Lewis QC for the TAC conceded the claim form for the First Incident provided to the TAC and signed by the plaintiff on 24 May 2000[2] ('First Claim Form') 'was pretty well contemporaneous'[3] with the First Incident and that he did not think there would be 'a lot of difficulty in dealing with it [this matter] under s 96(2)(b) [of the Act]'.[4]

8 The First Claim Form placed TAC on notice of the circumstances of the First Incident within a fortnight of its occurrence. The First Claim Form provided details of the plaintiff's general practitioner, employment and outlined that the plaintiff had not returned to work since the First Incident because of the injuries sustained in the First Incident. The First Claim Form also detailed that police had attended the scene of the accident.

9 In my opinion, the evidence establishes that within a reasonable time of the First Incident, the plaintiff provided to TAC the details required in accordance with s 96 of the Act. It could not be said that TAC has been materially prejudiced by any failure on the part of the plaintiff to provide notice of the First Incident.

10 The plaintiff stated in evidence that immediately prior to the First Incident she had dropped her son at school and was driving home after performing a right hand turn onto Ferntree Gully Road. The plaintiff said that the section of Ferntree Gully Road on which she was driving had two lanes, and that she was proceeding in the left hand lane when she observed a motorcycle in her rear vision mirror. She stated she proceeded in the left lane of the carriageway and that the motorcycle seemed to be 'playing' on the roadway. The motorcycle soon passed the plaintiff's vehicle at a close distance, and then drove in front of her without warning. The plaintiff stated that she swerved to the left in an effort to avoid what she perceived to be an imminent collision with the motorcycle, however, her car went into a spin and it ended up colliding into an embankment on the side of the road.

11 Mr Lewis, in his cross-examination of the plaintiff, suggested the First Incident did not occur as described in her evidence. The First Claim Form depicted in a diagram, and described in a summary, the plaintiff's vehicle as being in the right hand lane 'when the motorcycle recklessly overtook my [the plaintiff's] vehicle on the driver's side and I [the plaintiff] swerved to the left to avoid the motorcycle hitting me [the plaintiff] and veered across the left hand lane and down the embankment ...'.[5] The First Claim Form had been prepared by a solicitor who spoke the plaintiff's language. In response to a question concerning this version of events, the plaintiff stated that she had never reported that she was travelling in the right hand lane as was stated in the First Claim Form, and that the best thing Mr Lewis could do was look at the police report, which showed it all in detail.

12 Mr Lewis then cross-examined the plaintiff to the effect that she had informed her general practitioner, Dr Brkic, and specialists, Dr Stockman and Dr Sim, when providing a history to them concerning the First Incident, that her vehicle had in fact collided with another vehicle. The plaintiff was adamant she had said no such thing.

13 The police report of the First Incident[6] was tendered by the plaintiff after Dr Brkic gave his evidence. During cross-examination of the plaintiff, I asked Mr Lewis if he had a copy of the police report. He indicated that he did, but not with him at the time. The police report is entirely consistent with the evidence given by the plaintiff. I set out a description of the First Incident as provided by Constable Spry, who completed the report:

Unit 2 [the plaintiff's vehicle] travelling west in left lane of FT Gully Rd when unit 1 (M/cycle - with pillion) travelling behind apparently playing chicken suddenly o took unit (2) then swerved back in front of unit (2) which was forced to brake heavily and swerve left to avoid a collision. Unit (2) spun out on gravel shoulder - 180º collided with embankment then bounced back onto left lane - unit (2) total write-off - unit (1) failed to stop - unable to identify bike or rider.[7]

14 The plaintiff impressed me as an accurate historian in relation to the circumstances of the First Incident. I accept her evidence as to the circumstances, a version validated by the contemporaneous details obtained by police at the scene of the accident. The versions relied upon by the defendant obtained from histories taken by medical practitioners can, in my opinion, be most likely explained by misunderstandings in translation.[8]

15 The account in the First Claim Form, prepared by a solicitor, is largely consistent with the plaintiff's evidence, apart from indicating the plaintiff was in the right lane.

16 I find no merit in the defendant's submission that 'there is a good deal of difficulty when one looks at the history to the general practitioner and to Rodney Sim where the plaintiff has clearly told those doctors that the collision occurred when she hit the rear of another vehicle'.[9] Numerous other doctors took histories consistent with the evidence the plaintiff provided to this Court of the motorcycle swerving in front of the plaintiff's vehicle and thus having responsibility for the First Incident.[10]

17 I have no 'difficulty' in accepting the account of the First Incident provided by the plaintiff to this Court and to the police officer attending the scene of the accident. The account is entirely coherent, logical with the circumstances described and understandable. I find the First Incident was caused by the negligent driving of the unidentified motorcyclist swerving suddenly in front of the plaintiff's vehicle and forcing the plaintiff to brake and swerve to avoid a collision with the motorcycle and, as a consequence of these actions, the plaintiff lost control of her motor vehicle. The motorcyclist failed to stop at the scene of the accident.

18 The defendant at trial maintained a defence of contributory negligence. The defendant acknowledged in submissions that the plaintiff was faced with 'a heat of the moment situation'.[11] The defendant submits contributory negligence arises:

(a) 'because the motorcycle was travelling faster than the car and all the plaintiff had to do was adequately apply the brakes on her vehicle to allow the motorcycle to go past'; and

(b) 'she [the plaintiff] was able to get her foot onto the brake pedal, she could have slowed her car without running into the ditch'.[12]

19 I reject the allegations of contributory negligence. The First Incident indeed presented to the plaintiff the necessity for a spur of the moment decision. The motorcycle suddenly veered in front of her car without warning, and the police report described the actions of the motorcyclist as 'apparently playing chicken'.[13] I consider the actions taken by the plaintiff, on the spur of the moment, including braking and then swerving to avoid what would in the circumstances be the fear of collision were entirely reasonable and cannot justify any finding of fault by way of contributory negligence. One can readily appreciate that a reasonable driver, on the spur of the moment, may apply brakes and swerve to avoid a collision when a motorcycle previously observed 'playing' on the roadway veers immediately in front of the driver's vehicle, which is travelling at 80 kilometres per hour. The submissions of the defendant concerning the driving conduct it contends should have been taken by the plaintiff failed to take proper account of the urgency of the plaintiff's situation created by the dangerous driving of the motorcyclist. There is no basis for a finding of contributory negligence.

20 The evidence discloses there was a major collision of the plaintiff's vehicle with the embankment on the side of the road, this occurring after the vehicle had spun around 180 degrees on the roadway. The police report noted the vehicle bounced off the embankment back into the left lane of the roadway and that the plaintiff's car was 'a total write-off'.[14]

21 I accept the plaintiff's evidence that the circumstances of the First Incident caused her fear. The plaintiff stated that she lost consciousness and that her first memory after the collision with the embankment was somebody telling her not to move and the siren from the ambulance. Although requested by ambulance officers to attend hospital, she did not want to go. However, she stated that she felt dizzy and had pain in the back of her chest, and within an hour, the plaintiff attended Dr Brkic, her main general practitioner, who spoke her language. Dr Brkic took a history of headache and low back pain.

22 The following day, there was restriction of neck movement in all directions and pain generally was more severe. A week after the First Incident, Dr Brkic recorded complaints of low back pain and paraesthesia in both legs, with more severe neck pain associated with interscapular pains. On 21 June 2000, the plaintiff was complaining of soreness in the right shoulder. By 25 July 2000, Dr Brkic observed that anxiety features were becoming a predominant feature of the plaintiff's presentation, with symptoms of post-traumatic stress disorder ('PTSD').[15]

23 Various radiological tests ordered by Dr Brkic of the cervical and lumbar spines failed to demonstrate any abnormality of significance. An ultrasound of the right shoulder on 22 June 2000 suggested a small tear of the supraspinatus tendon.

24 Dr Brkic, in his report of 26 September 2001, concluded the plaintiff in the First Incident on 15 May 2000, had sustained musculo-ligamentous injuries:

...resulting in chronic myofacial pain involving the neck, right shoulder, arms, chest wall, low back, groin and leg areas. She also suffers a degree of right-sided sciatica...Mrs Lakic suffers from a degree of post-traumatic stress disorder with many of the classic symptoms as described, and a co-existing anxiety-depressive illness as a result of the accident, the latter conditions have severely hampered her rehabilitation efforts.[16]

25 Dr Brkic, in September 2001, noted the plaintiff had undertaken an extensive rehabilitation program.[17] He believed the chronic pain syndrome to be well entrenched, that her prognosis was poor and her level of disability was high.

26 In his evidence to the Court, Dr Brkic observed that he had treated the plaintiff for 18 years. He confirmed his statement in his report of 1 May 2014 that the lack of significant radiological damage as a result of the First Incident, apart from shoulder injuries, does not detract from the severity of her chronic pain syndrome, associated depressive illness and PTSD. He stated her capacity for work since the First Incident had been zero. He provided the opinion that both physically and psychiatrically her prognosis was poor and she needed to be supported on an ongoing basis.[18]

27 Dr Hanson, another general practitioner who the plaintiff consulted from time to time (with the knowledge of Dr Brkic) was called by the plaintiff. He first saw the plaintiff after the First Incident on 25 April 2001 when she complained that her back pain over the previous two days had been much worse. X-rays ordered on that day by Dr Hanson were unremarkable. In May 2001, Dr Hanson prescribed Panadeine Forte for pain and Temazapam for insomnia.[19] Dr Mack, a rheumatologist to whom Dr Hanson referred the plaintiff, reported back to him on 26 May 2001 that the plaintiff suffered mechanical soft tissue back and neck pains with protective posturing.[20]

28 Dr Hanson has continued to treat the plaintiff over the years. He has diagnosed chronic neck and thoracolumbar back strain, resulting in chronic pain syndrome/fibromyalgia leading to cervicogenic headaches, anxiety/depression and insomnia.

29 Dr Hanson described the plaintiff's injuries as very disabling, and that such disability after ten years, was likely to be permanent. Dr Hanson said the plaintiff still suffers from pain in the trapezius muscles and neck extensor muscles, and dizziness. He noted that the plaintiff still walks with a slow antalgic gait. He summarised that in his opinion, the plaintiff remains quite disabled. He agreed with Mr Lewis during cross-examination that there is a 'pain perception'[21] on the part of the plaintiff, a chronic pain syndrome, and a complex web of physical and psychological issues; a situation where it is 'often very hard to prove anything'.[22]

30 It is pertinent for the purposes of my assessment that the doctors who have had the most connection with the plaintiff, her general practitioners, support the plaintiff's claim that she is significantly disabled, that her injuries impair her in all activities and her ability to enjoy a normal life; domestic, social and recreational activities are all impaired. Dr Brkic did not believe the plaintiff was capable of employment, while Dr Hanson offered the opinion that she has been and remains unfit for anything but the lightest of employment,[23] and her overall prognosis is poor. Dr Stockman, rheumatologist, who treated the plaintiff on referral from Dr Hanson between March 2002 and August 2007, also was of the opinion that the plaintiff was unfit for work, and that her fibromyalgia, chronic pain syndrome and depression would continue into the foreseeable future.[24]

31 The plaintiff has attempted many types of rehabilitation, from physiotherapy, hydrotherapy, occupational therapy. She has been treated by pain management specialists and rheumatologists, all with little benefit. She has participated fully in all rehabilitation attempts.

32 The plaintiff has been prescribed over the years a variety of medications for pain and depression. Dr Brkic described her psychiatric condition as severe chronic anxiety-depression and PTSD. From time to time he reported that the plaintiff had provided a history of suicidal ideation and that she experienced flashbacks, nightmares, insomnia and palpitations.

33 Dr Piperoglou, the plaintiff's current treating psychiatrist, has been treating her since October 2011. He provided evidence during the course of the plaintiff's case. Dr Piperoglou was of the opinion that the plaintiff suffered from PTSD and a mixed anxiety depressive disorder. He is currently treating her with Lexapro 10mg twice daily for anxiety and depression, Rivotril 0.5mg three times daily for anxiety and Temazapam 10mg for insomnia. He described the psychiatric injury sustained by the plaintiff as significant; Dr Piperoglou offered the opinion that her physical and psychiatric injuries result in an incapacity for work. He described her prognosis as poor.

34 The defendant showed in Court two DVDs of video surveillance footage of the plaintiff, the first DVD showing footage taken on 10 September 2007 and 12 September 2007,[25] and the second DVD showing footage taken on 8 May 2012.[26]

35 The first DVD shows the plaintiff and her husband walking to a park on 10 September 2007. The walk is slow and deliberate, and the plaintiff walks side by side with her husband. The plaintiff and her husband are seated for a time at which point the plaintiff is seen tilting her head back to take a drink. Both of them then use a metal upright 'maypole' type of play equipment.[27] Initially, the plaintiff is pushed around the maypole by her husband, but then she propels herself.[28] The plaintiff then moves from the maypole to a swing. She was initially pushed on the swing by her husband and then appears to propel herself.[29] The plaintiff is then seen walking to a tyre shop and entering/exiting a vehicle.

36 The first DVD also shows the plaintiff, on 12 September 2007, walking around the streets of a shopping strip and attending the Silvan Dam for a barbecue with her husband.[30] The plaintiff's movement is again slow and deliberate.

37 The second DVD shows the plaintiff at the Mountain Gate Shopping Centre on 8 May 2012. At the shopping centre, the plaintiff walks about, again with a slow gait, and is also shown examining some dresses in a shop by lifting and holding them up in front of her face.

38 The DVD material became a focus of the defendant's case in this matter. The defendant submits the plaintiff has exaggerated her injuries and the consequences of her injuries to her medical practitioners; that the DVDs, particularly the first DVD, viewed in the light of her presentation to medical practitioners who examined her around the date of the first DVD in September 2007, indicate the plaintiff is in effect contriving her claim concerning incapacity and that she is unreliable.

39 The defendant called the plaintiff's previous treating psychiatrist, Dr Chen. Dr Chen commenced treating the plaintiff on referral from Dr Brkic on 30 May 2005. Dr Chen had been shown the first DVD by the plaintiff's then solicitors, Prior and Prior. The footage of the plaintiff on 10 September 2007 was taken prior to her consulting Dr Chen on the same day. Dr Chen stated he was surprised when he saw the footage, and that the plaintiff always presented to him as 'very much worse'.[31] Dr Chen formed the opinion that the plaintiff was not as disabled as she made out and that 'she did appear quite normal on the DVD [being the first DVD]'.[32] Because of the difference between her presentation to him and the presentation on the first DVD, Dr Chen reassessed her level of incapacity. Nevertheless, in August 2008, he still believed the plaintiff was not fit for work.

40 Mr Shannon, orthopaedic surgeon, examined the plaintiff for the defendant on 5 September 2007.[33] He offered the opinion that the plaintiff's impairment was not so much organically based as psychologically based, in that she perceived herself as totally incapacitated. At examination, he noted a heavy limp, that the plaintiff was supported by her husband, that she supported herself for much of the consultation on his desk, and that there was gross restriction of thoracolumbar movements.

41 Mr Shannon, in February 2008, was shown the first DVD. He described the presentation of the plaintiff in the first DVD as inconsistent with her appearance and examination on 5 September 2007. Dr Shannon believed the footage demonstrated a good range of apparently pain-free movement. He explained the discrepancy between his examination and the first DVD as the significant exaggeration or potential fabrication by the plaintiff of her physical signs to deceive the examiner.[34]

42 Dr Ingram, psychiatrist, examined the plaintiff on behalf of the defendant on three occasions between 15 February 2007 and 11 June 2010.[35] He offered the opinion in his report of 15 February 2007 that the first DVD showed the plaintiff to have exaggerated her symptoms both in providing a history and upon examination. Dr Ingram did not believe the plaintiff was without depressive symptoms. In his report of 27 October 2009, he stated the plaintiff still gave a good history of depressive and anxiety symptoms, as well as PTSD, and that she was still incapacitated for work. Dr Ingram stated her prognosis was poor, and that she was embedded in a sick role and her psychiatric problems significantly interfere with her domestic and leisure activities.

43 Dr Brkic, Dr Hanson and Dr Piperoglou had either previously seen the first DVD or were shown it in Court.

44 Dr Brkic stated in his report of 3 April 2008 there was nothing that he saw in the plaintiff's behaviour in the first DVD different to presentations in the surgery; in his opinion, the footage demonstrated the plaintiff's movements were 'very slow and measured as they are during her visits with me'.[36] Dr Brkic did not alter his opinion concerning the plaintiff as a consequence of watching the first DVD. In his opinion, her presentation was consistent with his diagnosis of a chronic pain syndrome and secondary anxiety depressive illness.

45 Dr Hanson, in his evidence to the Court, stated that the first DVD showed a range of movement that he had not previously seen. He described the plaintiff's gait as slow and that in his opinion it did not indicate that the plaintiff did not have a spinal problem. When Mr Lewis suggested the video showed a capacity for work, Dr Hanson replied it would need to be very, very light and very part-time.[37]

46 Dr Piperoglou, in his evidence to the Court, stated he had not seen the plaintiff with the freedom of movement shown in the first DVD. Whilst conceding the plaintiff may be exaggerating in her presentation, he warned of the dangers of assessing DVD evidence in cases of psychiatric injury; videoing someone once or twice and then coming to generalisations about their mental state over a prolonged period, in his opinion, was fraught with danger. Dr Piperoglou maintained his opinion that the plaintiff suffered from PTSD and a mixed anxiety depressive disorder.

47 On the evidence in this case, I accept the plaintiff suffers from a chronic pain syndrome secondary to musculo-ligamentous injury to the neck, right shoulder and back. She suffers headaches and dizziness. This is best described as a chronic pain syndrome, combined with an anxiety depressive disorder and PTSD. The pain syndrome and anxiety depressive disorder are well established and, as stated by Dr Brkic, notoriously difficult to treat.

48 I accept that the DVD evidence demonstrates an element of exaggeration on the part of the plaintiff and that the plaintiff in general terms has presented to medical practitioners in a manner that exaggerates the nature and extent of her physical symptoms. Nevertheless, I was impressed with the evidence of the plaintiff's general practitioners who have seen and examined the plaintiff over many years. Both Dr Brkic and Dr Hanson accept the plaintiff is incapacitated by injuries arising from the First Incident. Their opinion as to that incapacity was not materially altered by the first DVD. Their evidence, taken with that of Dr Piperoglou, in my opinion supports a finding that the plaintiff remains significantly disabled by her injuries and that the combination of syndromes is very hard to treat.

49 Amongst the tendered reports there were a minority that were dismissive of the plaintiff's condition. Dr Weissman, in his report of 7 August 2002, believed the plaintiff to be fit for employment on psychiatric grounds and as of the date of examination saw a need for antidepressants for only twelve months into the future.[38] Dr Kostos, rheumatologist, examined the plaintiff on 12 December 2007, and diagnosed a chronic pain syndrome, which was likely the consequence of countless unnecessary investigations and unnecessary treatments.[39] Dr Kostos, in his report of 13 December 2007, provided the opinion that doctors had to step back, as the plaintiff's condition had been contributed to by 'medicalization'.[40] He believed the plaintiff exaggerated her condition.

50 Dr Ingram observed in his report on 24 June 2010 that the pattern of the plaintiff's prescriptions suggested a continuation of chronic pain and that she was chronically depressed.[41] This assessment (allowing for an element of exaggeration) matches my observations of the plaintiff during the running of her case and is also consistent generally with the large body of medical evidence before me in this case.

51 During the course of submissions, I asked Mr Lewis to address me on evidence, apart from Dr Weissman, that indicated the plaintiff was fit for employment, even allowing for an element of exaggeration. He quite frankly replied there was none. He said the doctors have accepted the history provided by the plaintiff and have thus concluded she is not fit for work.

52 The vast preponderance of evidence in this case is to the effect that the plaintiff, since the First Incident, has not been capable of employment as a consequence of her injuries. That is most certainly the opinion of those medical practitioners who have treated the plaintiff, particularly the general practitioners. It is an opinion I accept.

53 Since May 2001, the plaintiff has been involved in two further motor vehicle accidents. The first of these accidents occurred on 26 January 2002 (the 'Second Incident') when a vehicle collided with the rear of a vehicle in which the plaintiff was travelling as a passenger which was stationary. A further accident occurred on 12 September 2006 (the 'Third Incident') in which the plaintiff was again a passenger in a vehicle that was stationary when hit from behind by another vehicle.

54 TAC claim forms were completed by the plaintiff concerning the circumstances of each of these further motor vehicle accidents.

55 The claim form for the Second Incident was completed by the plaintiff on 14 February 2002 and detailed the injuries sustained in the Second Incident as neck, whole back, upper right leg, left shoulder pain, very bad headaches, stomach aches and damage to teeth. [42] The plaintiff, in this claim form, also detailed the injuries she had previously sustained in the First Incident, the subject of this claim, as lower back pain, neck pain, headaches, interscapular pain, chronic pain syndrome, right leg and right shoulder injury, and that she was taking Panadeine Forte.

56 The claim form for the Third Incident was completed by the plaintiff on 21 October 2006 and detailed the injuries sustained in the Third Incident as headache, back pain, chest pain, leg pain, neck pain, shoulder pain right side.[43] The plaintiff, in this claim form, also detailed she had previously suffered from a lower back condition, neck condition and shoulder pain.

57 The defendant submits that there should be a discount against any assessment of damages in respect of injuries sustained in these two collisions and their effect on the plaintiff. More specifically, Mr Lewis submitted that there should be a discount of damages of one third as a consequence of the injuries sustained in the Second and Third Incidents.

58 The plaintiff in cross-examination agreed the Second Incident made her injuries worse. The evidence discloses that it was not until after the Second Incident that the plaintiff initiated complaints about pain in her left shoulder. The plaintiff, also in cross-examination, stated the Third Incident worsened her physical and psychological pain even further. The plaintiff stated that the First Incident was the worst, the Second made the injuries worse, and that the Third Incident made them even worse again. Her fear of travelling in cars arose after the First Incident and was made worse by the subsequent Second and Third Incidents.

59 Dr Brkic found it impossible to put percentages on the contribution of each of the three Incidents to the plaintiffs' overall condition. He agreed the plaintiff's nerves have been affected by subsequent accidents and that he commenced morphine-based medication for pain after the Second Incident.

60 Dr Hanson stated in his report of 29 May 2010, when asked to comment on the contribution of the three Incidents to the plaintiff's condition, that 'on the balance of probabilities, each of the injuries would not be in their present symptomatic and incapacitating state in the absence of, or but for, the transport accident of 15 May 2000 [the First Incident]'.[44] Dr Hanson went on to state that any apportionment between the Incidents was a matter of approximation, but he agreed with the assessment of a surgeon, Mr Brearley, that 90% attribution to the First Incident and 5% to each of the Second and Third Incidents was an appropriate apportionment. Mr Brearley had provided this assessment in a report dated 5 November 2009.[45]

61 Dr Chen, in his report of 2 November 2007, stated that it was reasonable to conclude that the impact on a person would be worse after experiencing repeated physical and psychological traumas.[46] I take this to mean that Dr Chen was of the opinion that the Second and Third Incidents aggravated the plaintiff's underlying condition. He said the effects of the traumas are 'accumulative'. In a later report of 7 March 2008, Dr Chen provided the opinion that the PTSD largely arose from the First Incident.[47]

62 Dr Ingram, in his report of 11 June 2010, varied his initial apportionment to 70% of the plaintiff's symptoms being related to the First Incident and 30% divided equally between the Second and Third Incidents.[48] Dr Kenneth Myers, in his report of 19 October 2009, stated that 90% of the disability to the right shoulder occurred in the First Incident. His apportionment was 40% to the First Incident, 40% to the Second Incident and 20% to the Third Incident.[49] Dr Kaplan, in his report of 10 May 2010, stated that it was difficult to apportion psychiatric injury, but nevertheless provided an opinion that 50% could be attributed to the First Incident and 25% to each of the Second and Third Incidents.[50] Dr Peter Blombery, in his report of 15 September 2011, provided the opinion that the sequelae of the First Incident is the dominant factor in her presentation.[51] He said the Second and Third Incidents provided temporary exacerbation of those injuries, but such exacerbation had since settled.[52]

63 I accept the evidence that the apportionment, particularly of psychiatric injury, between these Incidents is difficult and liable to only an approximate assessment. Upon review of the evidence, it is my assessment that by far the major contribution to the plaintiff's injuries and incapacity is the First Incident. It is apparent that the First Incident was the primary trigger for PTSD and the anxiety/depressive disorder from which the plaintiff has continued to suffer. The chronic pain syndrome was entrenched by the time of the Second Incident. The plaintiff had ceased employment because of the sequelae of the First Incident and, while the subsequent Second and Third Incidents may have aggravated her conditions, her continuing incapacity for work is due to the injuries arising from the First Incident.

64 I do not accept the plaintiff suffered injury to her left shoulder in the First Incident. There was no complaint of pain in her left shoulder until after the Second Incident. Further, whilst I consider the plaintiff suffers from a significant anxiety/depressive illness and from PTSD as a consequence of the First Incident, I accept the evidence of Dr Chen that the effects of the latter two incidents are cumulative. I find the effects of the Second and Third Incidents on the plaintiff's physical condition were temporary aggravations. Taking all these matters into account, I consider the apportionment of Mr Brearley and Dr Hanson that the First Incident is responsible for 90% of the plaintiff's present incapacity best represents the totality of the evidence. It is appropriate on the basis of such finding to discount the plaintiff's award of damages for pain and suffering by 10%. The discount is not applicable to pecuniary loss damages for the reason discussed above. Independent of any aggravation, the injury sustained by the plaintiff in the First Incident has rendered her incapable of employment.

65 The plaintiff in her evidence complained of having menstrual bleeding, menorrhagia, since the First Incident. Dr Brkic expanded on this in his evidence-in-chief, stating that the bleeding from time to time had been so severe that the plaintiff had been hospitalised due to anaemia. In his evidence, he did not directly attribute this condition to the First Incident. He in fact stated it is unexplainable why it happens; he said menstrual abnormalities can occur as a result of stress.

66 Dr Piperoglou stated psychosomatic manifestations of anxiety often cause menstrual irregularity. The irregularity is normally demonstrated by loss of a period or sparse periods.

67 An opinion was obtained from Dr Longmore, obstetrician and gynaecologist, concerning this condition. In his report of 8 June 2004, Dr Longmore indicated it was difficult to define a relationship between the plaintiff's menstrual dysfunction and the First Incident.[53] The evidence does not satisfy me that the plaintiff's menstrual dysfunction has been physically caused by the First Incident or the psychiatric sequelae that followed. In the light of the evidence, any temporal connection to the First Incident is not sufficient to sheet home liability for this particular injury against the defendant.

68 The plaintiff complains of pins and needles in three fingers on her right hand and also two fingers on her left hand[54]. Dr Brkic, in his evidence to the Court, stated that the plaintiff had been referred to a neurologist for this complaint. Dr Brkic also stated that in his opinion, the complaint may relate to a carpal tunnel syndrome, or it could be referred pain from the neck.

69 Dr Hanson. in his evidence to the Court, stated the pins and needles could potentially be from a spinal problem, but then qualified that opinion by stating the MRI scans did not reveal any signs of nerve root impingement that could explain the condition.

70 The evidence concerning the plaintiff's complaint of pins and needles does not permit a finding that the condition was due to the First Incident. There is more than one potential explanation for the development of the condition. On the evidence, it is not possible to attribute the pins and needles condition to any particular explanation, nor to any one of the three incidents, let alone the First Incident, which is the subject of this claim.

71 The plaintiff presented in Court as a sad and depressed woman with physical restrictions very similar to those demonstrated in the tendered DVD evidence. She is clearly an intelligent woman, her questioning of witnesses and the presentation of her case showed an ability to manage issues of some complexity.

72 The affidavit of the plaintiff's parish priest, Father C. Videkenic of St Stefans Serbian Orthordox Church, Keysborough, described the plaintiff as a person who presented very differently since the First Incident, and had become a shadow of her former self. Father Videkenic stated that, prior to the First Incident, the plaintiff was an active, capable worker, a happy person often in high spirits at Church functions, but since the First Incident, he has observed her as extremely depressed, with little enjoyment of life. He described the plaintiff's relationship with her husband and children as having been deleteriously affected as a consequence of her injuries.

73 The plaintiff's husband, Zdravo Lakic, and her son, Boris Lakic, aged 23, provided impressive evidence to the Court concerning the impact of the injuries sustained by the plaintiff in the First Incident.

74 Mr Zdravo Lakic cares for his wife and is paid a Centrelink benefit of $100 per fortnight for undertaking this role. He described the plaintiff as a previously active, outgoing and happy woman who enjoyed her work and had advanced to a supervisory position, who was now avoiding social interaction and had withdrawn from family life; a woman who had her ambitions of a new life in Australia destroyed as a consequence of the First Incident. Mr Lakic also stated that he undertakes nearly all the domestic work in the house, but is sometimes assisted by his sons.

75 Mr Boris Lakic said his mother spends most of her day lying down or sitting down. She has little social contact, and becomes upset and very emotional from time to time because of her predicament. There has been no improvement.

76 I have addressed the medical evidence. This evidence indicates there will be little or no improvement in the plaintiff's overall condition. I accept the evidence that the plaintiff's chronic pain syndrome and depression will be an unremitting feature of the plaintiff's future life.

77 The defendant submitted an appropriate award for pain and suffering damages prior to any discount for the contribution of the two subsequent incidents would be $150,000. This figure significantly undervalues the impact of the injuries sustained by the plaintiff in the First Incident on her life. I assess damages for pain and suffering, past, present and future, at $275,000. As indicated above, it is appropriate to discount that figure by 10% for the contribution to her current situation of the Second and Third Incidents. Thus, the figure of $275,000 is reduced by $27,500, and the total sum to be awarded for pain and suffering damages is $247,500.

78 The plaintiff was working at the time of the First Incident, and I accept the evidence that this work was important both to her and her family. Her employment history demonstrated three years of continual work prior to the First Incident. There is nothing to suggest that the plaintiff would not have continued in this work. As a consequence of the provisions of the Act,[55] the claim for pecuniary loss cannot commence prior to 15 November 2001. The period for the claim for pecuniary loss extends over 13 years and 28 weeks, being 704 weeks in total.

79 The plaintiff tendered correspondence from Arnott's dated 23 May 2000 stating that she worked on average 22 hours per week and earned $498.68 per week gross.[56]

80 The defendant's counsel helpfully provided me with details of the cost of living increases over the past 13 years, and the figure for average net weekly loss based on those increases over this time. The average figure for the period is $475.

81 There was no evidence that the plaintiff was anything but in good health at the time of the First Incident. The evidence in relation to her employment was positive in the sense that she managed her work, enjoyed it, and the evidence supports a finding that this income was an important component in securing the family's future in Australia. I allow the full period of 704 weeks at an average of $475 per week based on the 22 hours per week of employment at the time of the First Incident, which amounts to the figure of $334,400 for past pecuniary loss. As discussed above, it is my opinion that the plaintiff's incapacity for employment arises from injuries sustained in the First Incident, thus it is not appropriate to apply any discount to the total figure.

82 The plaintiff is 47 years of age. She makes a claim for future loss of earning capacity. There is no evidence before me as to the age the plaintiff intended to retire. On the evidence, I am satisfied that the plaintiff would have continued to work not only in support of her family, but also because she enjoyed her work and she was progressing well. There is no reason to think the plaintiff would not have worked until an age between 60 and 65, an age that by community standards would place her in the retirement zone. It is important to note that the plaintiff's claim for continuing pecuniary loss is based on part-time employment of 22 hours per week.

83 In the circumstances, a discount on the figure for future pecuniary loss of 15% is appropriate. This percentage discount appropriately allows for the positive and negative contingencies of life. The plaintiff has suffered from some health problems, including menorrhagia, pins and needles in her hands and injury to the left shoulder; matters unrelated to the First Incident. These negative contingencies are offset by the plaintiff's good health prior to the First Incident, her good work history prior to the First Incident, and also that the claim for future pecuniary loss is based on only part-time employment of 22 hours per week. I consider this part-time employment provides a greater ability to overcome any issues of ill-health; part-time work places less physical demands on the plaintiff compared to full-time employment. There is no evidence the plaintiff intended to pursue full-time employment upon her children becoming older. However, the evidence does point to the plaintiff succeeding in the workforce and, as stated above, her income making a contribution to the family's new life in Australia. I consider it reasonable to assess the plaintiff's future capacity for work on the basis that she would have worked until an age between 60 and 65. I proceed on the basis of an approximate mid-point between those ages, that the plaintiff would have worked to 62 years of age, or another 15 years. The 6% multiplier to age 62 is 522.[57] The plaintiff's net weekly wage, if still employed, would be $579. Using the multiplier, one reaches a sum of $302,238. This sum, discounted by 15%, provides a figure of $256,902.

84 I find that the plaintiff has suffered significant injuries as a consequence of the negligent driving of the unidentified driver in the First Incident. I do not find the plaintiff has been guilty of any contributory negligence. Based on the reasoning above, I assess the following figures:

[1] See s 3 of the Transport Accident Act 1986 (the 'Act'), which defines 'transport accident' as 'an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram'.

[3] Supreme Court hearing transcript ('Transcript') at 162.14.

[8] Dr Brkic speaks the plaintiff's language. Nevertheless, it is likely the plaintiff's account was confused by the doctor in translation.

[10] See the following reports: Dr Symington of 7 April 2003 (see PX18), Dr Chen of 30 June 2005 (see DX7), Dr Malios of 19 October 2001 (PX8), Dr Piperoglou of 2 May 2014 (see PX5), Dr Nathar of 2 October 2001 (see PX9), Dr Myers of 19 October 2009 (PX14), Mr Brearley of 5 November 2009 (see DX10), Dr Kaplan of 10 May 2010 (see PX11), Dr Blombery of 15 November 2011 (see PX12), Mr Byrne of 21 December 2000 (PX13), Dr Baker of 21 November 2001 (see DX12), Dr Kostos of 13 December 2007 (DX13), Dr Weissman of 3 January 2001 (see DX9), Dr Ingram of 28 September 2007 (see DX11).

[23] Upon re-examination by the plaintiff, Dr Hanson stated that 'perhaps part-time voluntary work might be feasible but it would have to be extremely limited, part-time seated work... But if I can put it this way, I think your chance of getting any paid employment is zero' (Transcript at 159.16 - 159.22).

[27] The maypole appears to be designed for people to sit and swing around it.

[28] The plaintiff is also seen squatting on her haunches while using the maypole.

[29] The plaintiff in cross examination denied that she had propelled herself on the swing, and stated that she relied on her husband to push her (see Transcript 52.22 - 53.03).

[30] The footage of 12 September 2007 also showed the plaintiff examining dresses and entering a vehicle. This footage, however, was not shown in Court.

[55] Section 93(10) of the Act.

[57] See Harold Luntz, Assessment of Damages for Personal Injury and Death: General Principles (LexisNexis, 4th ed, 2006) 683, which sets out the 6% multiplier required by s 93(13) of the Act.