Roberts v Cashman

Supreme Court of NSW|2000-08-30|Before: Whealy J

Background 3 In about October 1992, the plaintiff saw a programme on a TV show "The Investigators" concerning the drug Depo Medrol. It appears to be common ground that the defendant's firm was mentioned during the programme. This topic was of more than passing interest to the plaintiff. In November 1987, she had purchased a banana chair from BBC Hardware at Bankstown. Not long after, the chair had collapsed whilst she was sitting on it. It appears that the ratchet mechanism in the rear leg of the chair failed. The plaintiff landed heavily on the concrete patio when the chair collapsed. She landed on her lower back and buttocks, severely injuring herself in the fall. After years of unsuccessful treatment (including surgery in August of 1989), she underwent an epidural injection of Depo Medrol on 13 March and again on 17 or 18 September 1990. It appears the first injection may have given her some benefit but her condition worsened after the second. 4 The plaintiff contacted the defendant's firm by telephone shortly after the television show. She dealt with a young solicitor at the firm named Karen Evans. (Miss Evans later married and changed her name, so I shall refer to her as Ms Symonds). In fact, the plaintiff only ever spoke to any one at the defendant's firm over the telephone. She says that she never had a conference at the defendant's office or elsewhere for that matter. Exhibit "W" records that the plaintiff spoke to Ms Symonds on 9 November 1992 and told her that she had originally hurt her back in a banana chair. Prior to this conversation on 8 November 1992 (following the initial contact telephone call), Ms Symonds had written to the plaintiff and enclosed an questionnaire which she asked the plaintiff to complete. The plaintiff in mid-December 1992 sent the completed questionnaire form to the defendant. In the latter document, the plaintiff stated in answer to a question which asked her what medical problems she had before she was given Depo Medrol: - "The only problem I had was lower back pain and leg pain following a fall off a chair. I was first treated at Bankstown Hospital where a milogram to the spine was done and later operated on at St Vincent's Private Hospital". 5 The plaintiff indicated in the same questionnaire that she had experienced these problems between November 1987 to 1990 up to the time she was given the injections of Depo Medrol. She also gave details of the Doctors who had treated her and the treatment she had received between 1987 and 1990. 6 She was never asked any questions by the defendant or any of his staff about the fall. She did know that she could bring a claim against anyone concerning the fall from the chair. 7 On 24 December 1992, Ms Symonds sent a Fee and Retainer Agreement to the plaintiff which was signed and returned. A file had been opened in the plaintiff's name in December 1992. On 20 May 1993, the plaintiff signed an authority to commence legal proceedings. On 9 July 1993 a statement of claim was prepared and the defendant filed in the Supreme Court (proceedings 12676 of 1993) in which the plaintiff sued the Upjohn Company, Upjohn Pty Limited, Dr John Sheehy and St Vincent's Private Hospital for damages, for negligence and breach of contract arising out of the injections of Depo Medrol. 8 Any cause of action the plaintiff may have had against BBC Hardware or against the manufacturer or wholesale supplier of the banana chair became statute barred in November 1993.

The Present Claim 9 It is the plaintiff's contention that, unknown to her she had a strong cause of action concerning her original back injury. At the very least, she had a strong action for damages against BBC Hardware. Again, unknown to her, this potential cause of action became statute barred in November 1993. She lost the chance of maintaining a successful action against BBC Hardware. At the relevant time, the defendant, an experienced and expert lawyer in product liability litigation, was acting for her concerning a damages claim relating to the Depo Medrol injections which had worsened, or possibly worsened, the injuries she had received in the 1987 fall related to the collapse of the chair. It is the plaintiff's case that the defendant was under a duty of care to her, that he was in breach of that duty of care and was negligent. The aspects of the alleged negligence and breach of duty of care have been stated on her behalf in a number of ways. In his opening, leading counsel for the plaintiff Mr G. B. Hall QC said: "The plaintiff's position in a nutshell is the plaintiff's experts will say, if you have a personal injury case you must interview the plaintiff and one of the things you must do is explore what causes of action, if any, are available to her. This was not done in this case, it is common ground, as I understand the evidence, that the plaintiff was never personally seen by the defendant. She completed the questionnaire, but she was never personally interviewed and the defendant says, 'Well, on such written material I received I was never really put on notice that there might have been another claim there. But the experts for the plaintiff say, first of all, she should have been interviewed personally and had she been it would have been obvious that there was a cause of action against the manufacturer which was infinitely more valuable than any claim she might have brought about Depo Medrol …. From our point of view we would say, the plaintiff goes to a lawyer for advice, it is not for the plaintiff, so to speak, to define the cause of action, it is for the solicitor to get the facts and advise the plaintiff and that was not done in this case." 10 Later in his opening, Mr Hall QC pointed to a second major aspect of the manner in which it is alleged the defendant breached a duty of care to the plaintiff and was negligent, namely that he did not go to St Vincent's Private Hospital to inspect the records as he might have done. Had he done so, those records would have shown that inter alia the plaintiff's original injury had been caused when a banana chair she sat on collapsed, landing her forcibly on her back. An additional matter pointed to was the fact that the defendant, although invited to, never paid for or obtained a report from Dr Sheehy, the plaintiff's treating neurosurgeon, who had carried out the laminectomy and discectomy operation, and who had later administered the epidural injections in 1990. 11 For these reasons, the plaintiff maintains that the solicitor was in fact in breach of his duty to her. The terms of the retainer were not limited in any relevant manner. The plaintiff is entitled to a verdict and damages against the defendant since she has lost the opportunity of pursuing a cause of action by reason of the breach of retainer/negligence on the defendant's part. The plaintiff asks this court to assess the amount of damages likely to have been awarded by the court before whom the foregone cause of action would have been heard at the time when such trial would have come on in the normal course of events (Johnson v Perez (1988) 166 CLR 351; Sellars v Adelaide Petroleum (1994) 120 ALR 16).

The Defendant's Position 12 Mr Colefax, counsel for the defendant, fairly and properly, conceded on behalf of his client that it was accepted in this case that part of the defendant's retainer to consider the circumstances surrounding the cause of any injury which had lead to the administration of the Depo Medrol. This concession, in an important way, reduced and limited the issues which this court must determine. 13 Mr Colefax, however, has forcibly argued that the defendant did not breach his retainer or any duty owed to the plaintiff because nothing in the material furnished by the plaintiff to the defendant put him on notice that there might be a basis for considering whether the plaintiff had a pre-existing cause of action in respect of the fall from the collapsed chair. Secondly, the defendant says that in the field of class actions (or "mass tort litigation") it is neither practicable or feasible to interview clients. Moreover, it is said, whatever be the practice of "conventional" solicitors, it is not the practice of firms engaging in "class actions" and "product liability" litigations to interview clients or potential clients in such litigation. Support for this last proposition has been given by Mr Ron Pearce of Ryan Carlisle Thomas. Mr Pearce is a solicitor, expert in the field of common law personal injury cases and "class actions". Further support is also to be found in the evidence of Dr Cashman himself. 14 As to the plaintiff's damages claim, the defendant accepts the principle involved in relation to the manner in which damages are to be assessed. The defendant, however, maintains that, at the notional trial in 1996, there would have been a very significant question mark over the credit of the plaintiff in relation to the assessment of damages; that the trial judge would have downgraded if not entirely eliminated that aspect of the plaintiff's claim related to psychological injury alleged to have been sustained as a consequence of the 1987 accident; and, thirdly, that the plaintiff's significant claim for economic loss would have been substantially rejected or at least limited. This is so particularly in relation to the allegation that the family plumbing business was brought to an end by the continuing pain and disability suffered by the plaintiff. 15 This third issue is further complicated by the nature of the injury which the plaintiff sustained in a subsequent motor vehicle accident in 1994. The defendant contends that, if the plaintiff's working life has been brought to an end, it was this accident which did it and not the 1987 fall.

The Plaintiff's 1987 fall - its medical and other consequences 16 The plaintiff, as I have said, purchased a banana chair from BBC Hardware at Bankstown in November 1987. The chair cost approximately $39.00. Exhibit "G" contains a photo of the type of chair available from the hardware store at that time. This model is no longer available, it having been replaced by another model some years later. The photograph shows that it has a single rear leg which supports that part of the structure which would support the back and upper torso of a person sitting on it. The plaintiff had used the chair a couple of times before the day of the accident. On that day she had set the chair up so that she could sit on it. She described the method of pulling both the front and back legs into position so that they locked. She did that and then sat on the chair. Her mother-in-law who unfortunately passed away in 1993, was present at the time. The plaintiff describes the incident as follows: - "When I sat on the chair the back legs gave way and I landed heavily on the concrete underneath. I landed heavily on my lower back and buttocks." 17 The accident occurred at the plaintiff's home at 16 Wyalong Street, Panania. Later that date, the plaintiff's husband returned home and he pointed out to her that there was a ratchet on the rear part of the chair and that some of the teeth on the ratchet were uneven. They were not all of the same size. The plaintiff's husband also gave evidence that he observed on the day of the fall that the ratchet mechanism had completely collapsed and that the back leg had buckled in. He also observed that the ratchet mechanism appeared to be defective in that the clips which held the ratchet together had split apart and the teeth did not naturally click into together because they varied in size. He told his family not to use the chair further and about three weeks later he took it to the tip and disposed of it. 18 The plaintiff describes that when she landed on the patio after the chair gave way, both she and her mother-in-law laughed about the incident. She noticed however that her back, buttocks and tail bone were very sore. The next day the pain was still there and it was very noticeable. She could not sit down properly and could not walk. She then went to see her local doctor, Dr Vij. A few days later she went to Bankstown Hospital where x-rays were taken and she was told by a doctor at the hospital that she had fractured her coccyx. She said that as time passed her back deteriorated. She had problems with pain radiating from her back into her legs. Exhibit "Z" is a report from Dr Williams, Radiologist to Dr Vij dated 13 November 1987. This indicated that there was a chip fracture in the fifth sacral segment. Nearly ten months later, the plaintiff's pain was still persistent. She was referred by Dr Vij to a treating orthopaedic surgeon Dr Neville Rowden. He examined her and reported to Dr Vij on 15 September 1988 as follows: "Thank you for referring this 51 year old lady whom I examined on 15 September 1988. She stated that her lower back had become painful after a banana chair broke on her last November. She fell directly onto her bottom. Apparently x-rays taken at Bankstown Hospital after this were essentially normal. Since that time she has had a persistent ache, this is mostly on the right hand side and down her right buttock. She occasionally gets sharp pains down her right leg …. Clinically her lumbar spine has a nearly full range of movement without significant pain. She has tenderness in a widespread area from L5 to over both sacro-iliac regions." 19 He recommended that she take a course of postural strengthening exercises, take up swimming and submit to a CT Scan if her symptoms failed to settle over a six week period. 20 On 10 January 1989 Dr Bryan Williams, treating radiologist reported to Dr Vij. He noted the advanced narrowing of the discovertebral joint at L5/S1 with marginal spur formation and with reactive sclerosis. It was his opinion that the changes pointed to a long standing collapse of the intervertebral disc at this level leading to a reactive osteospondylitis. He noted also the almost total effacement of the lumbar lordotic curvature suggesting a quite marked spasm in the supporting musculature of the lower lumbar region. 21 In February and March 1989 the plaintiff was referred to a treating orthopaedic specialist, Dr George Kalnins and, through him to Dr Anthony Dowling a treating radiologist. Dr Kalnins said the CT scan confirmed there was mild annulus bulging at L4-L5. and L5-/S1 disc degeneration was noted. He was unable to locate any evidence of nerve root compression. Treatment at this stage he said was confined to physiotherapy which was not proving effective. Arrangements were made for a surgical support for the plaintiff and non-steroidal anti-inflammatory medication was to be administered. 22 During 1989, the medical procedures used on the plaintiff became more invasive and, as in not uncommon, she reacted badly to these procedures. She was referred to Dr John Sheehy, a neurosurgeon at St Vincent's Medical Centre. He saw the plaintiff on 5 May in Bankstown Hospital. She was complaining of intermittent attacks of low spinal pain. A recent attack had been unresponsive to the usual conservative measures, so she was admitted to Bankstown Hospital for bed rest and traction. He ordered a lumbar myleogram . This was carried out by Dr Stephen Mackie, a treating radiologist. He was not able to locate or define any significant central or lateral disc protrusion. The plaintiff received an injection of hydro cortisone in June 1989. By July, the plaintiff was complaining of more pain in the posterior thigh and calf. She had found that walking was particularly difficult and had been in a lot of pain since her discharge from hospital. Dr Sheehy decided to undertake a laminectomy and discectomy operation. Dr Sheehy's suspicions proved correct as the operation found a definite rupture of the L5/S1 disc which was compressing the S1 nerve root. The nerve was freed during the operation. The plaintiff said that after a period of healing she noticed that the leg problems which she had been having were improved but the back pain stayed about the same. She says she always had some level of back pain. She remembers stepping into a hole once which caused the back pain to come on. If she did anything vigorous it would cause her problems. Her general practitioner continued to provide her medication for low back pain during the latter part of 1990 and she continued to complain to him of back stiffness and pain. Dr Sheehy was very optimistic about the surgery and in a letter (Exhibit 9) in February 1990 to Dr Kalnins he said that he had seen her on 5 February 1990. His review continues: - "She was complaining of some stiffness in her neck and occasional problems with stiffness in the back following her recent trip to England. She has had an excellent result following her S1 nerve root decompression in December 1989, and has no further leg pain. She had a good range cervical movement, though tilting her head back does cause some postural disturbance. Tone and power in the arms were normal. I suggested some physiotherapy for her cervical symptoms. She is keen to start exercising and I am sure this will help the lower back problem to ease." 23 Dr Sheehy's optimism does not appear to have been warranted. The plaintiff complained of lumbar spine problems to Dr Vij in late February 1990 and was advised by Dr Sheehy to undergo epidural injection of Depo Medrol in March. This was administered on 13 March 1990. She had a fall on the roadway in August 1990 and reported to both Dr Vij and Dr Sheehy. This fall exacerbated her lower back pain. She underwent a second epidural injection on 17 and 18 September 1990. 24 Apparently the injections did not have the desired effect. Dr Sheehy referred the plaintiff to Dr Champion of St Vincent's Private Hospital, a specialist in pain management. She told Dr Champion that the first injection of Depo Medrol had achieved a marked benefit, but after her fall in August, she found she was suffering in the neck, back and right leg. She was now experiencing some pain in the left leg as well. The second epidural, she told him, gave her no benefit. The pain was as severe as it had been prior to the operation. She was encountering pain in both legs and her lower back. She was having difficulty walking. Dr Champion reported to Dr Sheehy on 23 November 1990. He suggested that she had somatic neuropathic pain arising from L5/S1, maybe also L4/5. He suggested that she maintain analgesia with certain stipulated medication. He suggested that a longer trial with TENS equipment might be of benefit to her, as might a lumbosacral back support. He gave the plaintiff advice about getting help with housework and did not exclude the possibility of subsequent re-exploration at a surgical level. 25 On 29 November 1990 Dr Sheehy reported to Dr Vij as follows: - "She has had a recent admission to St Vincent's Private Hospital for further assessment of her low back and neck pain. There is as well, some pain in the left leg but leg pain is not the predominant problem. It is a feeling of pain in the back and in the neck. She has recently had an MRI scan and this does not show any recurrent disc prolapse …. There is evidence of an adhesive change around the S1 nerve root. I cannot see how this will be producing her symptoms. She has had a trial of a facet joint injection, which was technically unsatisfactory. It was painful for her and not persisted with while she was in hospital. She also had a preliminary trial of a TENS machine which also was not followed through to its full extent. She was then discharged to be seen in the(?) rooms. I feel that the most likely cause for the low spinal pain is her previous disc disruption. I feel the best course would be to have a trial on a lumbar support, use non-steroidal anti-inflammatory agents and to see a good physiotherapist who has an interest in the spine. If these fail, then the next best step would be to have her reviewed by Dr Michael Neil to see if spinal fusion would help. She is well motivated and runs a (sic) plumbing business so she is trying to improve. I am sure this will happen if only the right treatment option could be found." 26 Regrettably, it seems the right treatment option was never found. The plaintiff's evidence in these proceedings is that she encountered more and more difficulty in relation to doing the heavy housework at home. She paid a lady to come in and do the heavy cleaning for her if she could not cope with it; if her husband were there and had time, he would do the housework in her place. This included the cleaning of the bathroom, vacuuming, making beds etc. She also said that after 1987, she had to ease off doing the gardening because of her back pain. She gave up her work with the Welsh Society. This had been her escape but she began to get very cranky "with everybody". In the plaintiff's affidavit (Exhibit "E") at para 19 she said: - "At the time of the fall from the chair I was working in the family business with my husband and two sons. I continued working in this business afterwards up until December 1991 when I could no longer cope with the pain. I became very anxious and depressed. I lost all my enthusiasm and my motivation for work. Eventually the business was carried on by my youngest son as a sole trader." 27 In her oral evidence she explained that she was the administrator of the partnership. The business had a contract with the Gas Company. It was her task to go the various showrooms canvassing work. It was also her task to assess the work to be done and to divide that work out between the three plumbers, namely her husband and two sons. At various times, this involved her going to showrooms all over Sydney and she had also to travel to the Gas Company yards to pick up meters. She said she could not cope with the work any more, she could not sit all day long in the office and she became cranky and irritable. She also found that she could not drive around to all of the showrooms. She stopped work in December 1991 at the end of that month. She has not worked since. She claims that if she had not injured her back she would have kept on working because she enjoyed the work. The plaintiff's husband agreed they would not have given the business up if his wife could have carried on with her work. 28 The plaintiff said at this time, she could not walk properly and she seemed to be getting into more and more pain all the time. She found that she was limping a lot more. She tripped and fell over quite often. At the present time she seems to be getting worse. At the hearing, she described how she can barely walk 200 metres without stopping because of the pain in her back. She gets very agitated and depressed. She cannot sit for any lengthy period, does not sleep well and gets very irritable and very cranky. Her husband did not believe that she exaggerated her pain but he has noticed that she is no longer able to engage in her previously enjoyed pastimes. He referred to the fact that prior to the 1987 fall they used to play golf together and go out into the country to "fossick" for gold. This no longer happens. He corroborated the description of her depression. 29 It was put to Mr Roberts that she may have had some of these problems before the 1987 accident, but he said the plaintiff had not complained to him about pain in her back, shoulder or hip prior to 1987. 30 Glenda Turner is the youngest child of the plaintiff's marriage. She is 38, hold the position of an executive secretary and lives at Milperra with her two children. She corroborated substantially her mother's history regarding her injuries and disabilities. In particular she dealt with her mother's work incapacity before and after the accident. Her mother had worked as a front end controller with Flemings and later with Woolworths before the family had gone into the plumbing business. When the family business started up her mother was involved in it very fully. She did all the office work, the administration, she did the banking, liaising with the Gas Company and face to face dealings with customers. She said that her mother's health deteriorated after the fall. She appeared to be in a lot of pain and was not as agile and energetic as she had been previously. She was not able to do the gardening as she had done prior to the accident. She observed her father having to do a great deal of the heavy housework as her mother was in pain when she attempted to do it. She lived with her parents in 1996 or 1997. She noticed her mother was not able to put the washing on the line or do the heavy housework. She was using a walking stick at that time. It was "a real effort" for her to climb up and down stairs. 31 She also described that prior to the injury her mother's tasks in the business included the scheduling of the work that came in over the fax and the division of that work amongst the three plumbers. The plaintiff was also required to make sure that they did their jobs and bring the paper work home at the end of the day and she would complete that paper work and liaise with the Gas Company as a consequence. She also handled customer problems. 32 Ms Turner does not believe that her father could have carried on the business without the plaintiff's help. She said that he did not have the communication skills necessary to do the administration work. She said he was partially deaf so the telephone was a nightmare for him. He does not have the interpersonal skills necessary to be able to do administration and he is not "great with paper work". She said that she did not believe her brothers could have done this work either. She said that they were not trained in that area and basically not good at it. The plaintiff, she said, "ran the ship". 33 She too denied that her mother had complained to her about pain in her wrist, neck, shoulder or back before November 1987. She agreed that between 1987 and 1994 her mother in fact did some of the heavy housework but only a small amount of it. She said that her mother was a stubborn person who pushed herself when she shouldn't sometimes. She does not believe that her mother could perform all her domestic duties in the period between the 1987 fall and the 1994 motor vehicle accident.

The Plaintiff is involved in two motor vehicle accidents 34 The plaintiff was involved in a motor vehicle accident on 25 October 1994. She was struck from behind when her own car was stationary. She suffered a whiplash injury which resulted in pain and disability affecting her cervical spine and neck. The impact also aggravated her pre-existing lower spinal injury. Proceedings were commenced in the District Court against the driver of the vehicle which had collided with the plaintiff's stationary motor car. Particulars of injuries in the District Court statement of claim alleged that she had injured her neck and aggravated a prior injury to her lower back. Particulars of economic loss alleged in the same statement of claim were that "by reason of the additional injuries and disabilities arising from separate neck injury and the aggravation of the plaintiff's prior lower back injury, the plaintiff's remaining wage earning capacity has been removed" and damages were claimed in respect of the loss. The proceedings in the District Court were later settled in the plaintiff's favour. 35 On 18 June 1995 the plaintiff was involved in a second motor vehicle at Williamson Road, Ingleburn. She had stopped at the intersection of Campbelltown Road to give way to a vehicle coming on her right when she was hit from the rear by another vehicle which failed to stop. She received a sudden jerk or jolt to the body but in her motor vehicle claim form (Exhibit 1), she said that the accident did not have any "secondary effects". This appears to be borne out by the medical reports.

Medico-Legal and related opinions of the plaintiff 36 On 14 April 1998 Dr Max Ellis gave an opinion to the plaintiff's solicitors. He referred to the further aggravation of the plaintiff's condition by the motor vehicle accident in 1994. He said: - "There is at present a 40% permanent impairment of her back and consequent on the back injury 15% permanent loss of the efficient use of the right lower limb, a 10% permanent loss and efficient use of the left lower limb at and above and below the knee. Thirty per cent of this back assessment must be considered due to the fall at home in the chair in November 1987, the remaining 10% is the motor vehicle. The fall at home occurred in 1987. She noticed a development of neck pain at the time of myelogram performed prior to the laminectomy in May 1989. It is likely that the fall in the chair contributed to her neck injury as well and this was further accentuated by the motor vehicle accident, there is a 15% permanent impairment of her neck on further assessment, half of which is attributable to the fall in the chair and half to the motor vehicle accident." 37 Dr Ellis provided a further report on 19 May 2000. He referred to the same topics in these terms: - "The second accident, the motor vehicle accident in 1995 (this should read 1994) has been discussed in my previous report. She sustained neck and back injuries in this accident, had physiotherapy and attended the pain clinic. Her low back pain was aggravated for 12 months then returned to its usual level. A claim was made for the 1995 (sic 1994) accident affecting her back and neck and this was settled." 38 Dr Ellis expressed the same overall assessment of her injuries, although noting that that her condition had in fact worsened since his last report. 39 Dr Conrad furnished two reports. In the latter of them on 23 March 2000, he said: "She has a 30% permanent impairment of her back, a 20% permanent loss of efficient use of the right leg at or above the right knee … and a 25% permanent impairment of her neck." 40 He attributed 40% of the back impairment to the 1987 fall, 30% to the 1994 car accident and 30% to the 1995 accident. He thought the neck impairment was due entirely to the 1995 (?) accident. 41 Dr James Grady on 25 June 1998, expressed the opinion that the plaintiff was suffering from a chronic adjustment disorder with depressed mood. The depression, he said, was a reactive quality and was moderate rather than mild. The reaction related to the persistent pain and disabilities flowing from the 1987 accident.

The Plaintiff's medical condition in general terms 42 The plaintiff asks the court to conclude that, essentially as a consequence of the 1987 fall, she is a person who has been and will be disabled to a reasonably significant extent in physical terms. She is in constant pain, she is prevented from enjoying life in a number of important respects. For example, she is unable to do her gardening and household work as she wants; she is prevented from enjoying recreational pursuits such a golf and walking. She has been, she says, unable to take part in the workforce ever since late 1991 and has been forced to give up in more recent times her position in the Welsh society and Welsh church. She suffers from moderate depression of a reactive type as a consequence of her pain and disablement. 43 It is not anticipated there will be any real improvement in the plaintiff's physical condition and there is no treatment which will benefit her in any substantial way apart from pain and anti-depression medication.

Did the Defendant take reasonable care in the discharge of the Retainer 44 It is conceded that the defendant's retainer required him to consider the circumstances surrounding the initial incident and consequent injury. The defendant, however, has submitted that the real issue on liability is whether, in the particular circumstances of this case, the defendant took reasonable care in the discharge of that part of the retainer which extended to the provision of advice concerning the 1987 incident and which, in turn, gave rise to the administration of Depo Medrol in 1990. 45 The parties are in further agreement that the express subject matter of the retainer was the provision of advice concerning the administration of the medication known as Depo Medrol to the plaintiff in 1990. The retainer, however, was not limited in any way for relevant purposes. 46 The plaintiff has always maintained that she was never required to attend a conference with the defendant or members of his staff. She says that although the memorandum of fees dated 24 February 1996 refers to a conference, this did not happen. During the evidence of the defendant (which was taken by video link between Australia and Greece) the defendant suggested there was evidence that a David Hirsch had worked on the plaintiff's files and may have had a conference with her on 28 June 1993. This reference was contained in a computer print out record. Ultimately, this document was not tendered in the proceedings and it appears now to be common ground that the defendant does not dispute the plaintiff's assertions that she did not have a conference at any time. 47 It is further common ground that the communications between the plaintiff and defendant took the form of correspondence, some telephone calls and the completion and dispatch of a questionnaire by the plaintiff. This questionnaire had been prepared by Dr Cashman. There also is some medical documents which were sent by the plaintiff to the defendant. I shall set out in a little more detail the dealings between the plaintiff and the defendant between 1992 and 1993: - 48 The plaintiff contacted the defendant's firm and spoke by telephone to Ms Symonds in October 1992. Ms Symonds, on behalf of the defendant, wrote to the plaintiff on 8 October 1992. This letter provided some background information for the plaintiff regarding the firm of Cashman & Partners. I quote: - "By way of background information, Cashman & Partners has a commitment to provide an efficient and low cost legal service for persons who have suffered personal injuries, particularly those of limited means. The firm provides a full range of legal services. The firm has considerable experience and expertise in personal injury claims and products liability … each potential claim arising from Depo Medrol or Myodil will have to be individually evaluated and this requires a detailed review of a large number of complex factual and legal questions. To enable us to carry out a more detailed evaluation of your claim we are enclosing with this letter various documents which should be completed and returned to this office as soon as possible." 49 One of the matters Ms Symonds in her letter indicated would be examined was the issue not only of the legal merits of any claim but the time limits within which legal proceedings should be commenced. 50 Ms Symonds wrote again to the plaintiff on 24 December 1992. In this letter she reported as to the evaluation which had been made by one Dr Rout of the general medical & scientific questions arising out of the epidural administration of Depo Medrol. The letter informed the plaintiff that Dr Rout was of the opinion, in a number of cases, there were reasonable prospects of succeeding in legal proceedings against the distributor and/or manufacturer of the drug. The letter contained the following caution: - "However, in each case it is necessary to consider the individual questions of causation and damage. This requires; (a) an in depth evaluation of all material medical records in all cases (b) obtaining additional reports from treating specialists and/or independent experts in many cases; and the further medical examination and investigation of clients in some cases. Also, as you will be aware from our previous correspondence, legal proceedings must be commenced within limited time periods." 51 The letter went on to stress the need for additional material to be obtained before individual cases could be scrutinised. The letter also contained a fee retainer agreement for signature by the plaintiff. 52 It is common ground that the Fee Retainer Agreement was returned to the defendant in January 1993.

The importance of the questionnaire 53 The defendant places great weight on the questionnaire and certain material answers contained within it. The defendant's argument was put in summary form as follows: - (a) the considered description of the incident, expressed in unambiguous clear and precise terms; (b) the lack of previous legal advice (which might reasonably been expected to have been pursued if the plaintiff had been as seriously injured as she alleges); and (c) the impression sought to be made by the plaintiff concerning the administration of medication by an emphasis on the seriousness of the back condition after injection and not before hand, 54 did not oblige the defendant, in the context of "mass tort" litigation, to conduct a face to face interview in order to discharge the duty he was under either by his retainer or at common law (even assuming that such a face to face conference would have elicited the full facts). 55 There were three solicitor/experts called in the case who dealt with the central aspect of this submission. These were Mr Watts and Mr O'Halloran on behalf of the plaintiff and Mr Pearce on behalf of the defendant. Much of their evidence centred upon the question as to whether it was part of the defendant's retainer to consider the circumstances surrounding the initial incident. As this has now been conceded, it is not necessary to consider that the defendant should have conducted the interview with the plaintiff and all three witnesses expressed views as to whether the contents of the questionnaire would have or would not have put the defendant on notice about the need to make further enquires in relation to the original fall.

The Defendant did not take reasonable care 56 In my opinion, the defendant did not take reasonable care in the discharge of the implied obligation in his retainer to consider the circumstances surrounding the original fall. First, it is clear that the defendant's firm is very experienced and expert in personal injury claims and products liability litigation. Secondly, it was inherent in any assessment of the claim the plaintiff might have in relation to the administration of Depo Medrol that a careful medical assessment would have to be made of the original injury to determine whether the administration of Depo Medrol created an aggravation of that injury (and if so, to what extent) or whether a new injury was created. Thirdly, it would be necessary for the same reasons to obtain a detailed history from the plaintiff, not only of the circumstances of the original injury but of the disabilities which followed from it, and to contrast those with the disabilities which were said to flow after the administration of the drug. In my view, it would not have been possible for an adequate view to have been formed as to the impact of the drug administration, or the damages which might flow from it, without a very clear and detailed evaluation of both medical and lay issues relating to the original injury. Fourthly, it was clearly incumbent upon the defendant to obtain hospital records and medical reports relating to the original injuries and their treatment. It is true that St Vincent's Hospital required a personal attendance with the plaintiff present for the purposes of such an inspection; and it is also true that Dr Sheehy was prepared to provide a report only upon payment of his reasonable fees. These "difficulties" in obtaining medical records and reports were, and are, by no means uncommon. They should not have deterred the defendant from pursuing those channels of information. A reading of the St Vincent's Hospital records (eg Dr Champion's notes) would have alerted the defendant to the circumstances of the original fall. 57 Fifthly, I am not all persuaded that the questionnaire, as a whole, did not put the defendant on notice that a conference would be necessary (or at the very least a detailed telephone conference) to ascertain the circumstances of the original fall and injury. It is true that the plaintiff answered question 2.1 in the following manner: - "2.1 What medical problem "s" did you have before you were given Depo Medrol or Myodil? A. The only problem I'd had was lower back pain and leg pains following a fall from a chair. I was first treated at Bankstown Hospital where a myelogram to the spine was done and later operated on at St Vincent's Private Hospital." 58 It is also true that Mr O'Halloran - who gave evidence in the plaintiff's case - said that this description of the incident was one which "would not of (itself) set off alarm bells in the mind of the average competent practitioner in the course of a telephone conversation with a client". 59 In my opinion, however, it is not necessary for "alarm bells" to be set off in the mind of a reasonably competent practitioner at the relevant time to enable him to carry out his duty to his client in the situation such as the present. Such a solicitor after recording the questionnaire would know not only that there had been a fall from a chair but that the plaintiff had experienced problems after the fall for three years between 1987 and 1990 (A 2.2); he would know that there had been significant operations performed (Q 2.3) and that the plaintiff's disability was such that she had to close down the family plumbing business because of her back spine problems and mental condition (1.12). 60 I accept that the plaintiff's description, in the one answer, of the fall from the chair did not inform the defendant that she had purchased a defective chair from BBC Hardware and that it had collapsed on her. On the other hand, when one reads the whole of the questionnaire and examines the totality of the answers she gave, it is my opinion that the document in its entirety would have alerted a reasonably competent practitioner to the fact that a serious injury had been sustained by the plaintiff in 1987 following a fall. The disabilities and difficulties flowing from this original incident may (or may not) have, in terms of the answers given in the questionnaire, been aggravated by the Depo Medrol injections. The information posed a critical question for evaluation by a reasonably competent legal practitioner which required a detailed examination of the original fall and the injuries which flowed from it. 61 Sixthly, I do not consider in this case, that a relevant distinction may be drawn between ordinary litigation and that which is called "mass tort" litigation or "class actions". Mr Pearce conceded that all practitioners are bound by the same conduct rules in litigation, and by inference there is no separate standard of conduct applicable to mass tort or class actions. I accept and prefer the views expressed both by Mr O'Halloran and Mr Watts that if, as happened here, a decision were made to institute separate proceedings on behalf of the plaintiff by the issue of a particular statement of claim, it became necessary to interview the individual client to assess and frame the individual case pleaded. It is not necessary for me to decide in these proceedings the general question of the scope of the retainer, or the circumstances in which a breach of the retainer will occur, where a major class action has been mounted. In this case, no evidence was led by the defendant to establish that, in fact, it was either impracticable, or uneconomic for a member of the defendant's firm to interview the plaintiff personally and comply with the standard which both Mr Watts and Mr O'Halloran said would ordinarily be expected of a competent legal practitioner in this State commencing an individual action on behalf of an injured plaintiff. A relatively cursory conference with the plaintiff (or even an informed telephone conference) would have elicited the fact that there was a likely substantial cause of action in relation to the purchase of the failed chair and, in view of the plaintiff's injuries following upon that fall, it should have been apparent to the defendant that a very valuable cause of action would be lost if the plaintiff were not informed of her rights in a timely manner. 62 I should add that the plaintiff herself lived in Sydney, that is to say in the same city as was the defendant's firm. There appeared to be no reason to suggest that there would have been any problem with interviewing her. It is inherent in this observation that a reasonably competent solicitor would, during the course of such an interview, have detected the potential cause of action related to the purchase of the defective chair without any difficulty whatsoever. 63 I do not accept the opinions of Mr Pearce and the defendant himself which suggested that because of cost efficiencies and practical difficulties in general terms it is not necessary to interview potential plaintiffs in class actions or mass tort litigation. But whether I be correct in this view or not, I do not think such opinions bear on the particular circumstances of this case. 64 My final reason is that, as Mr Watts said, clients are notoriously unreliable in providing their own history in letter form or any form where the solicitor does not have the opportunity to inter-react with them. There is a grave danger that a solicitor will breach the implied duty in his retainer if he does not, in litigation matters, take the opportunity of interviewing the client and drawing out those aspects of the circumstances which may have a bearing upon potential causes of action arising out of all the circumstances. The lay client is simply not in a position to provide information at this depth and level by filling in a pre-planned questionnaire. Such a document may be a useful tool in getting an over view of a potential claim or claims but it is not of itself a sufficient discharge of the solicitor's obligation in a case such as the present. As Mr O'Halloran said, a solicitor who does not interview his client in such a situation does so at his own peril.

The value of the lost cause of action 65 As I have now found that the defendant was in breach of the retainer/duty, it is necessary for me to estimate the prospects of success of the action which became statute barred and the damages to which the plaintiff would have otherwise been entitled but for the breach of retainer. 66 In Johnson v Perez supra the High Court gave consideration to the approach to be taken in the assessment of damages in circumstances where a client has lost the opportunity of pursuing a cause of action by reason of that the negligent conduct of a solicitor. At 366 Wilson, Toohey and Gaudron JJ said: - "When an action has been dismissed for want of prosecution due to the negligent conduct of a solicitor, the client has lost the opportunity to bring that claim to trial and recover in respect thereof. As already indicated, in some cases it may be appropriate to describe the loss as the loss of a chance for there may be various contingencies bearing on the likelihood that the plaintiff would have recovered judgment against the defendant and further that any such judgment would have been met. When those contingencies have been foreclosed by agreement or by the decision of the primary judge in the trial of the claim against the solicitor, the way is open for the judge to proceed to the assessment of damages for the loss flowing to the plaintiff by reason of the negligence of the solicitor. The first component in that assessment is the amount of damages likely to have been awarded by the court before whom he action against the employer (as in this case) would have come. That loss crystallizes when the action is dismissed for want of prosecution and is then capable of assessment. The process of assessment may well require a broad brush approach in determining when, in the absence of negligence, the action would have come to trial and the evidence bearing on the quantum of damages that would or should have been available for tender to the court. Undue emphasis should not be placed on the difficulties surrounding the selection of a notional trial date of the original action. In the majority of cases some variation in this regard will be immaterial; it will only be in those cases where a new and material fact emerges for the first time after the earliest notional trial date or where the relevant principles of law governing the assessment of damages are undergoing a process of change that it may be necessary to identify with some precision when the earlier action would probably have been determined." 67 Nikolaou v Papasavas, Phillips & Co (1988-89) 166 CLR at 394 was decided at the same time as Johnson and dealt with an action for negligence against solicitors. The client's cause of action against the nominal defendant for damages for personal injuries had become statute barred as a consequence of the negligence. The majority (Wilson, Dawson Toohey and Gaudron JJ) said at 404: - "For reasons which are set out in some detail in Johnson v Perez , his Honour should first have focused on Mr Nikolaou's situation when his claim for damages for personal injuries became statute-barred. He should have assessed damages by reference to the loss at that date of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved - the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and the prospects of any judgment given in favour of the plaintiff being satisfied - in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed." 68 In these proceedings, it is common ground that the plaintiff's claim against BBC Hardware became statute barred in November 1993. It is first necessary to determine the plaintiff's prospect of success in an action against BBC Hardware to recover damages in respect of the injuries she sustained when the chair collapsed and led to her fall. Secondly, it is necessary for the court to assess the amount of damages likely to have been awarded by the court before which the foregone cause of action would otherwise have come on for trial. Included in that assessment must be a consideration of all the evidence bearing on quantum which would or should have been available to that court. The third step is to assess and award damages to the plaintiff as against the defendant in these proceedings. A plaintiff who has been injured by the negligence of the defendant is to be awarded such sum of money as would, as nearly as possible, place him in the same position as if he had not sustained the injuries (Todorovic v Waller (1981) 150 CLR 412). The plaintiff in the present case would, but for the negligence of the defendant, have recovered damages for personal injuries against BBC Hardware. It is that loss for which she is to be compensated. 69 It is further common ground between the parties in these proceedings that I may conclude that the notional trial in respect of the plaintiff's personal injuries would have come on and been concluded by the end of 1996. Mr O'Halloran in his supplementary opinion dated 10 July 2000 thought that legal proceedings against BBC Hardware could have been commenced by about January 1993 and would have likely to have been heard in the District Court of New South Wales at Sydney in about January 1996. At one point in the submissions, Mr Colefax on behalf of the defendant suggested that an appropriate date for the hearing of the notional trial would have been February or March of that year but later, during the submissions of counsel for the plaintiff, it was agreed between the parties that no practical difference would arise whether the trial occurred in early or late 1996. Consequently, I will accept that the action would have come to trial about the end of 1996.

The notional District Court trial - an assessment of the plaintiff's prospects of success 70 It is necessary first to examine the plaintiff's prospects of success against BBC Hardware in terms of liability. Secondly, on the basis that she would have been likely to succeed in her action against BBC, it is necessary, again having regard to the contingencies, to assess the amount of damages likely to have been awarded by the court in the damages action for personal injuries sustained as a consequence of the collapse of the chair. 71 In my opinion, the plaintiff's prospects of success against BBC Hardware in terms of liability were quite strong. I have set out earlier in these reasons a detailed description of the circumstances relating to the purchase of the chair and it collapse. Essentially, it appears from the evidence given by the plaintiff and her husband that the ratchet mechanism on the rear part of the chair collapsed probably because of the defective nature of the mechanism itself. Indeed, counsel for the defendant properly conceded that it would be open, having regard to the evidence, for the court to conclude that the plaintiff had good prospects of success in suing BBC Hardware for damages arising out of a breach of warranty under the Sale of Goods Act 1923 (as amended). 72 On the other hand, Mr Colefax made a very detailed and comprehensive submission to the effect that the notional trial judge would have been likely to have yielded a very conservative assessment of damages at the 1996 trial. He raised questions about the assessment in three principal areas. First, a general attack on the plaintiff's credibility and reliability; secondly, he argued there should be no component allowed for psychological injury, and, thirdly, he argued the claim for economic loss should be severely curtailed. It is necessary to set out the thrust of these submissions in some detail.

The Plaintiff's general credit worthiness and reliability 73 There were four major aspects of this submission. I shall deal with each separately.

(1) The "chameleon" submission 74 Mr Colefax submits that in the assessment of the plaintiff's general damages for her physical injuries, the notional trial judge would have had considerable reservations about the plaintiff which would have been likely to have limited the damages awarded. These reservations would not have, in general terms, cast doubt on the physical symptoms experienced and described by the plaintiff, but rather would have cast a reasonably substantial doubt as to whether all the symptoms were attributable to the back injury arising from the collapse of the chair. 75 These doubts would have been engendered by an adverse view of the plaintiff centred upon, so it is alleged, her emphasising from time to time certain matters concerning her disability and minimising others depending upon the particular claim being pursued. Counsel for the defendant would accept, I believe, that it is not unfair to say that some of the instances of the material relied upon to support this submission are more significant than others. Notwithstanding, reliance is placed on each of the illustrations and on the cumulative effect they may have had on a trial judge in the notional trial for damages. 76 The first illustration of the alleged tendency arises out of the plaintiff's evidence in these proceedings that her back pain has been a continual problem for her since the fall from the chair. She agreed that this was what she had sought to convey in her evidence to the Court. It was then put to her in cross-examination (T 75-76) that she had told Dr Patapanian at an examination on 7 November 1994 that "she was better for about three months after surgery". She agreed that this was quite possible. The letter of 10 November 1994 in which this statement, along with a general history and other matters, was admitted as exhibit 4. 77 The submission is made that she has informed this court that there has been a continual problem with the back since the fall from the chair but that she sought to convey to Dr Patapanian in November 1994 (not long after her first car accident) that her back condition improved for a period of about three months after surgery at Bankstown Hospital. 78 It must be remembered that the significance of the allegations made against the plaintiff in this regard resides in the fact that she had been injured in a motor car accident on 24 October 1994. The defendant's assertion is that when she saw Dr Patapanian on 7 November 1994, she was, in effect, making less of her injuries as a result of the 1987 fall knowing that she would shortly be prosecuting a claim for damages for injuries sustained in the 1994 motor vehicle accident. I do no think this assertion can be made out when a careful analysis of Dr Patapanian's report is made. It may be accepted that the plaintiff maintains in these proceedings that her back pain has been a continual problem for her since the fall from the chair and she agreed that this was the factual situation she wished to convey in her evidence in these proceedings. At p 76 of the transcript she said that her back was probably better after Dr Sheehy performed the laminectomy "but it has never been right". She disagreed that it was considerably improved following the operation but agreed that it was quite possible she told Dr Patapanian that she was better for about three months after the surgery. 79 It will be immediately apparent that the statement to a doctor enquiring for the history of symptoms following an injury may legitimately note a short term improvement followed by a relapse. The actual expression in Dr Patapanian's report of the version given to him by the plaintiff is in these terms (Exhibit 4): - "She had a very severe reaction to lumber myelography at Bankstown Hospital and she remembers this quite vividly. She was better for about three months after surgery, but has since had severe low back pain." 80 Later in his report Dr Patapanian noted that her history was that she was suffering from increased pain, functional impairment at home and "is now complaining of increasing pain in the thoracic and cervical spines". To my mind, a reading of the whole of exhibit 4 paints a picture of a woman who gives a history that she has, despite the occasional short term period of relief, continually suffered pain from back injury since the 1987 fall. The history is not inconsistent with her evidence in these proceedings. 81 More significantly, the plaintiff does not mention (at least so far as Dr Patapanian's version of her history is concerned) the 1994 car accident at all. In my opinion, the Patapanian illustration does not support the defendant's contention. It is also to be noted that in the subsequent proceedings commenced by the plaintiff to recover damages arising out of the whiplash injury caused in the car accident, no reliance was placed on Dr Patapanian's report. Exhibit "Q" is a list of the plaintiff's medical reports to be relied on for the purpose of those proceedings. The list does not include any reports from Dr Patapanian. 82 As a second illustration, the defendant also referred me to the report of Dr Sheehy on 5 February 1990 (Exhibit 9), the report of 7 September 1990 (Exhibit 7) and portion of some notes kept by Dr Sheehy relating to attendances with the plaintiff in April and November 1991 (Exhibit 8). There is no need for me to set out these in detail. It is sufficient to say that the defendant claims that these various notes and reports paint a picture of a plaintiff who is from time to time improving and whose back pain is at times not her major problem. I think it is necessary to take a broader view of these medical reports rather than to focus on particular sentences or portions. It must be remembered that Dr Sheehy was not required to give evidence before me. More importantly, it is necessary to read these medical reports and notes as part of a broad and ongoing history and commentary. I give a couple of examples. First, in February 1990 Dr Sheehy described the plaintiff as having had "an excellent result" following her operation in September 1989. This was no doubt his honest view but whether it proved to be an overly optimistic view of the plaintiff can only be determined by examining her following history month by month and year by year. When this is done, for example, noting the many complaints she makes, for example, to her general practitioner of continued pain in either her back, neck or limbs (Exhibit 3), Dr Sheehy's enthusiasm for the success of his operation, although understandable, is not justified. 83 Secondly, even in the letter of 5 February 1990, Dr Sheehy suggests, in the last paragraph, that some physiotherapy has been suggested for the plaintiff's cervical symptoms. He says that "she is keen to start exercising and feels confident that this will help the lower back problem to ease". It is quite apparent that the back problem is still there even a short time after the operation has been performed. 84 The next matter relied upon by the defendant as supporting the "chameleon tendency" relates to the questionnaire (Exhibit E) to which I have already made extensive reference. 85 It was put to the plaintiff in cross-examination that when she answered a number of questions in this document, she was wishing to convey the impression that her back condition was significantly worse after each of the Depo Medrol injections. She agreed with this although she made the point that her back was not getting better at the time and that is why she agreed to have the injections. 86 Again, I do not think that the admission made by the plaintiff during cross-examination carries with it the necessary result contended for by the defendant. It would be unrealistic to assume that a plaintiff who has seen a television programme which offers her the prospect of compensation in a possible medical negligence action would not embrace the possibility with at least some enthusiasm. Secondly, as I have already said, the plaintiff was adamant in her evidence before me that it was her view that her back was not getting better and that is why she had the two injections in March and September 1990. Thirdly, it is very important to note, that quite apart from the plaintiff's own evidence in these proceedings, there can be little doubt that it was the view of her neurosurgeon that she required an injection in March of 1990; and required a second injection some seven months later. 87 At p 60 of the transcript she was asked specifically by counsel for the defendant whether she was intending, as she had with the earlier answers in the questionnaire, to convey the impression that there was really not much wrong with her before the administration of Depo Medrol. She firmly denied this and I accept her denial. It is amply borne out by the fact her treating surgeon required her to undergo the injections. 88 The fourth matter relied upon by the defendant in this context is the manner in which she has emphasised the neck injury she received in the 1994 motor vehicle accident for the purposes of those proceedings whereas, in this action, she points to her neck problems as being associated with the 1987 fall. This, it is said, is a further demonstration of the tendency of the plaintiff to act in a "chameleon" style to maximise compensation opportunities as they arise. The sequence of events relied upon by the defendant is as follows: - (a) Issue of the District Court Statement of Claim on 8 September 1995. This asserted an injury to the neck, and an aggravation of prior injury to the lower back. This was accompanied by the claim for loss of wage earning capacity "arising from the separate neck injury and the aggravation of the plaintiff's prior low back injury". (Exhibit 5) (b) A history was given by the plaintiff to an acupuncture practitioner, Mary Lu which ultimately found its way in a report (Exhibit 6) to the plaintiff's general practitioner Dr Vij. In this report (a copy of which apparently was directed to the NRMA Insurance) Ms Lu described the cervical symptoms detailed by the plaintiff as having been experienced, "only following the motor vehicle accident on 24 October 1995." (Presumably, this is a reference to the 1994 accident). (c) On 15 May 1995 the plaintiff's solicitors in the District Court personal injury claim wrote to the Claims Manager NRMA Insurance Limited stating : - "The motor accident has stirred up the low back pain and caused separate neck injuries, from which she did not suffer before the motor accident." (Exhibit 10) (d) The particulars of injury filed in the District Court proceedings on 12 March 1996 referred to an injury to neck, and minor aggravation of prior injury to low back. The same distinction was made in relation to the particulars of loss of wage earning capacity as had been made in the 1995 Statement of Claim. (Exhibit 13) 89 It will be seen that this submission centres mainly upon differing histories that the plaintiff has given to medical or health practitioners from time to time; and from certain aspects of the manner in which the litigation, following her 1994 motor vehicle accident, was conducted by her solicitors. 90 As to the first, there is no doubt that the plaintiff's 1987 fall essentially occasioned an injury to her lower back. An examination of her medical treatment over the next five years shows, in general terms, a gradual worsening of the lower back condition together with sporadic pain and discomfort in other parts of her back as a consequence of the worsening condition itself, day to day vicissitudes, and painful reactions to aspects of the medical treatment. The latter aspect includes both physiotherapy, traction, cortisone injections, exercise and the more invasive type of procedures such as the myelogram, the discectomy and the Depo Medrol injections themselves. As a generalisation, it may be observed, from an analysis of all of the medical reports in Exhibit "B", that the plaintiff's early back problems were accompanied by pain and loss of movement in the lower limbs to a varying degree from time to time. The period following the myleogram and discectomy seemed to result in an improvement to the situation so far as the plaintiff's leg pain was concerned but, overall, a continuance of lower back pain and pain in other parts of the back including the neck. Since that time, there appears to have been a slow and steady worsening of the condition exacerbated no doubt by the 1994 accident. 91 As far as neck pain is concerned, there is no doubt that the plaintiff complained to Dr Patapanian (Exhibit 4) that she had a very severe reaction to the lumbar myleogram and remembered this quite vividly. She complained to him of increasing pain in the thoracic and cervical spines. She complained of neck pain to her general practitioner Dr Vij (Exhibit 3). She also complained of neck stiffness to Dr Sheehy on 5 February 1990. He noted that there was some postural disturbance when she tilted her head back and suggested some physiotherapy for these cervical symptoms. She gave a history to Dr Champion on 14 November 1990 which suggested that she was suffering from pain in the neck in August of that year. 92 The point to be made is that it is clear from the whole of the medical evidence, the evidence of the plaintiff herself and her husband and daughter that the predominant problem arising out of the 1987 accident was her back disability. She walked with a observable limp in court and had difficulty in sitting in the one position for any length of time while giving her evidence. Notwithstanding this, the material to which I have made reference does record instances of neck pain after the 1987 accident and prior to the whiplash injury she sustained in the 1994 motor vehicle collision. The plaintiff's daughter said at T 162 line 15 that she also had problems with her neck and her hip but predominantly her back seemed to be the worst. 93 It is also of significance to note the course of the conduct of the District Court action commenced on 18 September 1995. On or about 16 March 1995, nearly six months earlier, the plaintiff completed and posted a claims form to the NRMA Insurance Limited in relation to the motor car accident. It was accompanied by a medical certificate completed and signed by her general practitioner. In this claim form, at p 3, she makes it clear that she had suffered prior injuries or disabilities to the same parts of her body (lower back, neck etc) when she fell off the banana lounge in November 1987. She also refers to the injury at that time to the lower back and to her subsequent operation. It is not consistent with the allegation now made against the plaintiff arising out of the material furnished by her solicitors, that she would so readily disclose to the insurer of the vehicle at fault that she had sustained both back and neck injuries in the 1987 fall. In addition, on 16 February 1996 her solicitors wrote to Abbott Tout, the solicitors for the NRMA (Exhibit "S") providing particulars in the proceedings relating to the motor car accident claim. These particulars make it clear that her case was that she had been unable to continue in her employment with the plumbing business due to the effects of her prior back injury and that this claim (so far as it related to the neck injury resulting from the whiplash) effectively removed any remaining earning capacity that she may have had following her back injury. Moreover, the particulars which were given identified the nature of the 1987 accident and its consequent effect on the plaintiff. The particulars identified these very proceedings and indicated their current status in the Supreme Court lists. Finally, the particulars also identified the motor car accident which occurred on 18 June 1995 and noted that, although a claim had been lodged to protect the plaintiff's position, it was unlikely that the claim would be taken any further. It was said that the second motor car accident "resulted in a temporary and minor aggravation of neck injuries sustained in the motor vehicle accident on 25 October 1994 and that any aggravation resolved after a short time." 94 On 18 July 1996 the plaintiff's solicitors had written to Dr Caspary with a view of obtaining a report from him which was to be utilised in relation to the District Court proceedings. A subsequent report was obtained. The significance of the letter to Dr Caspary (Exhibit "T") is that it precisely and fairly informed the Doctor of the three incidents including the 1987 fall and attempted, in a general way, to "scale" the effect of these incidents particularly in relation to her back injury. 95 The combined effect of each of these matters is to demonstrate the plaintiff and her solicitors (presumably in accordance with her instructions) placing before the NRMA and the medical profession material to enable a fair assessment to be made of the consequences of not only the 1994 motor car accident but also the disabilities associated with the 1987 accident. When the plaintiff's conduct is seen in this light, it further deprives the attack on her credit and reliability of any real force in relation to this submission. 96 Finally, Ms Lu was not required to attend for cross-examination and did not give evidence. It is not unimportant to note that although the defendant has conceded that the plaintiff was examined by Dr Isbister on his behalf, no report has been served in relation to the examination. Moreover, the fact that there was to be an attack upon the plaintiff's credit in cross-examination was not heralded, prior to the commencement of the trial, by the service of any medical evidence challenging her claim as to injury or the opinions expressed by any of the medical experts whose reports were tendered on her behalf. In all the circumstances, I am not prepared to find that Ms Lu has necessarily reported precisely the history which would have been given to her by the plaintiff. Alternatively, I am not prepared to give any significant weight to one sentence appearing in this report as demonstrating an attempt by the plaintiff to maximise her compensation opportunities arising out of the 1994 car accident.

(2) The Plaintiff omits to tell Dr Conrad of the 1987 fall and its consequences 97 The defendant submits that the notional trial judge would have been very seriously concerned about another aspect of the plaintiff's case. This arises out of the fact that the plaintiff was first examined by Dr Conrad in 1996. This examination was for the purpose of preparing a medico-legal report in relation to the plaintiff's claim for damages arising out of one or either of the motor vehicle accidents. There is no mention in the report of the 1987 accident at all. An unsigned copy of this report is Exhibit 14. 98 Included in Exhibit "B" (a list of the reports on which the plaintiff does rely) is the later report of Dr Conrad which is referred to briefly at p 18 of these reasons. It is dated 23 March 2000 and on page 2 contains the following statement: - "She did have a previous accident in 1987 when she fell off a banana chair and as a result had a disc protrusion and had a laminectomy and discectomy. This was done by Dr Sheehy. Unfortunately, she omitted to tell me about this previous accident on the occasion that I examined her on 28 February 1996." 99 I agree with Mr Colefax that at first blush it seems odd that Dr Conrad was not given any history of the 1987 accident when he examined Mr Roberts on 18 February 1996. The plaintiff herself was asked about this in cross-examination but said she could not remember what questions he had asked her about past injuries to her back but she denied that she had deliberately withheld from Dr Conrad the fact of the fall. She made, a rather telling point that she thought he would have observed, during her physical examination, the scar on her back from Dr Sheehy's operation. This is, perhaps an even more telling oversight on his part, when one looks to the contents of Exhibit 14. At the foot of p 1, Dr Conrad notes that the plaintiff has a disc protrusion as shown on the x-ray, and "may well need a lumbar laminectomy and discectomy". It seems somewhat extraordinary, having examined her, that he would not have realised that she had already had this operation. 100 Again, Dr Conrad was not required to attend for cross-examination and although the defendant was perfectly justified in being somewhat suspicious about the fact that the earlier report (Exhibit 14) was not a document listed in the verified list of documents prepared for the purposes of these proceedings, I consider that its omission does not have the significance sought to be placed upon it by the defendant. Nor do I think the omission in the report itself, no matter how it came about, is of great moment. 101 This is particularly so when one takes account of the fact that, after the copy report was produced and shown to the plaintiff and she was cross-examined about it, her counsel was able to tender, from her solicitor's original records, the original report which was received in the solicitor's offices on or about 6 March 1996. This document has been "scoured" through on both pages (presumably when it was first received) with a large notation appearing on page 1 - "Wrong". Secondly, the plaintiff tendered a list of the medical reports relied on in the District Court case and it is apparent from the tendered document (Exhibit "Q") that Dr Conrad is "wrong" report was never relied on in those proceedings. I infer from all of this that the plaintiff's solicitors placed no reliance on the report at the time and discounted it because it was wrong and inaccurate. Its shortcomings should not, in all the circumstances, be sheeted home to the plaintiff. 102 I should add finally on this point that, for the sake of consistency, I do not place any great weight on Dr Conrad's later report of 23 March 2000. Although Dr Conrad has in the later report corrected some of the errors and omissions from his first report, it is still deficient, in my view, particularly in relation to the emphasis the Doctor places on the effects of the 1995 accident. In fairness to Dr Conrad he was not required to give evidence and did not do so. I do not, however, place any significant weight on the contents of his report as it appears in Exhibit "B". 103 My conclusion is that I do not believe that the defendant withheld this information from Dr Conrad. I am unable to ascertain in the end, whether the plaintiff was asked about the 1987 fall or not, but I am not prepared to draw any inference adverse to the plaintiff arising out of this omission. I note that Dr Conrad in completing his later report did not himself make any allegation against the plaintiff in relation to her failure to mention the 1987 accident, if that is what happened. Finally, in relation to this aspect of the attack upon the plaintiff, again I draw attention to the fact that the plaintiff sent a claim form to the NRMA in relation to the 1994 accident which plainly informed the insurer of the fact of and the disabilities flowing from the 1987 fall.

(3) The Plaintiff's claim for compensation in relation to the 1995 motor vehicle accident 104 The defendant tendered (Exhibit 1) a Motor Accident Claim Form completed by the plaintiff and presumably sent either by her or on her behalf in July 1995. This related to the 1995 accident at Campbelltown. The purpose of the tender was to highlight the evidence which the plaintiff had given prior to the tender, that she had not made any claim on an insurance company in respect of the 1995 accident. Later she said, however, that she was not sure whether a claim form had been filled in but she knew a claim had not been made. When she was confronted with the document which became exhibit 1 she agreed that a claim form had been submitted but she said no claim had been made. She did not in fact claim against that insurer. 105 Mr Colefax conceded that this was not the most significant point on its own but maintained it should be seen in the light of the overall attack on the plaintiff's credibility. 106 In my opinion, Mr Colefax's concession was well made. Although a point was no doubt scored against the plaintiff, I do not think it had any real significance. I accept that in her mind a claim had not been made against the insurance company even though a claim form had been filled in and lodged. I note that she described her injuries in answer to question 27 as "sudden jerk to the body" and when asked in question 8 how the injuries affected her she had replied "No secondary affects".

(4) Dr Truskett The Plaintiff "Feigned" her disabilities 107 The final major attack on the plaintiff's credibility and general reliability arises out of the reports of Dr Truskett (Exhibits 11, 16 and 17). It appears that Dr Truskett was retained by the NRMA to prepare reports on its behalf for the proposed District Court proceedings arising out of the plaintiff's 1994 motor accident. 108 The first report (Exhibit 11) is dated 15 September 1995 and is addressed to "NRMA". It contains information arising from an examination of a history taken from the plaintiff on that day. It includes a statement attributed to the plaintiff that her pain was now "ten times worse" than it had been prior to the accident. In addition, a statement was made that, although her back was painful prior to the motor vehicle accident, "she could perform all of her domestic duties including gardening". This was, the defendant argued, in contrast to the evidence she and her husband and daughter gave about her ability to perform domestic chores after the 1987 accident as before the motor vehicle accident. 109 Dr Truskett's next report in evidence before me was exhibit 16. This is dated 22 August 1996 and refers to a second interview on 28 June 1996. Dr Truskett claims to have noted inconsistencies at this examination. He also referred to a video dated 26 January 1996 which he had viewed. He claimed that he noted (when viewing the video) that the plaintiff was able to undertake movements that were inconsistent with those of her claimed disability, and inconsistent with movements observed during her examination. He claimed that the level of disability asserted by her on the two occasions that he examined her was "feigned". In addition, he maintained that any demonstrated limitations were the result of her initial back injury in 1987 and not the car injury. He further maintained that her permanent neck impairment was the result of the fall from the chair and not the result of the motor vehicle accident. 110 At p 99 of the transcript it was put to the plaintiff that when she was examined by Dr Truskett in 1995 she was exaggerating and feigning the true level of her disability. She denied this forcefully. The plaintiff was also cross-examined about the alleged subject matter of the video. I should say at once the video (whatever its contents) was not tendered in evidence before me. 111 During cross-examination the plaintiff stated that she was an Office Bearer of the Welsh Society and Welsh Church on Australia Day 26 January 1996. She agreed that she participated in a parade on that day and assisted in the carrying of one corner of the national flag of Wales when a short circuit of the oval was carried out during the parade. She said that she did this with great difficulty but denied that she was loading and carrying objects into a vehicle on that day. She said that her husband carried out any tasks involving carrying and lifting. No questions were put to Mr Roberts in relation to this topic. 112 I have come to the conclusion that I should give little or no weight to the opinions expressed by Dr Truskett in his various reports. There is no suggestion of any exaggeration or feigning of symptoms or disabilities by the plaintiff in any of the medical reports served on behalf of the plaintiff. The defendant, as I have already noted had the plaintiff medically examined but has not produced any report as a consequence of that medical examination. The plaintiff's evidence as to her injury and its consequences is corroborated by her consultation with her general practitioner, the details of the x-ray and her subsequent medical treatment. These matters are, as was submitted by senior counsel for the plaintiff, consistent with an initial injury and its subsequent progression to a stage where an operation was indicated. The operation did not, however, resolve the problems. The operation was only embarked upon after the unsuccessful trial of physiotherapy, swimming, exercise, trial of a TENS machine and an attempt to clarify the diagnosis by CT scan and lumbar myleogram. The consequent laminectomy and discectomy, followed by the injection of Depo Medrol, are all consistent with an attempt to control or improve the worsening consequences of a serious back injury. 113 I have no doubt that the plaintiff was genuine. There was nothing in the manner and demeanour of her evidence which gave me any indication she was "feigning", pretending or exaggerating. I found her to be an honest and reasonably reliable witness. 114 The plaintiff's description of her pain and its consequences and the progress of her disabilities, has generally been corroborated by her daughter. The allegations made in the reports of Dr Truskett occurred in a context in these proceedings which did not provide the plaintiff with an opportunity to require him to attend for cross-examination. Moreover, the central piece of evidence on which he has placed reliance, namely a video, has not been tendered in evidence before me. Mr Turner's evidence of her mother's ongoing pain, worsening condition and day to day disabilities were not challenged in cross-examination. All these matters lead me to the view that the opinion of Dr Truskett should be rejected and no weight should be placed upon it in so far it conflicts with the evidence of the other medical practitioners whose reports were tendered in behalf of the plaintiff, and with the evidence of the plaintiff's husband and daughter. 115 As to those aspects of the statements in Dr Truskett's report outlining aspects of the history recorded by the plaintiff, again, in all the circumstances I am not prepared to place any significant weight upon them. The plaintiff, agreed that she may have described the pain in her back from the motor vehicle as "ten times worse" but said she could not in fact remember the conversation. She emphatically denied that it would have been true that she had been able to perform all her domestic duties as well as gardening before the motor vehicle accident. This was corroborated by her daughter. 116 Counsel for the defendant was entitled to seize upon the colourful phrase "ten times worse" in the asserted history. I am not prepared to find as a positive matter that the plaintiff used this phrase although if she did use it or some such colourful phrase, it may well have been explained by the fact that her pain was considerably worse on the day she was examined by Dr Truskett. I do not think any additional significance should be afforded to either this statement or any other part of Dr Truskett's reports. 117 I include in this comment the review by Dr Truskett in his third report of 22 August 1996 asserting that the plaintiff has "marked pre-existing degenerative disease of her back which is likely to account for her symptoms". This opinion is said to be made in reliance on a CT scan dated 19 February 1996 which is also not in evidence before me. Moreover, with all due respect to Dr Truskett, in the absence of direct evidence from him in these proceedings, it is additionally difficult to give any weight to this type of opinion particularly when it is expressed for the purpose of other proceedings and on behalf of a client which is not a party to these proceedings. It is an irony worth noting, but not requiring any further comment in view of the weight I attach to these reports, that the defendant has urged me to accept reports which, inter alia, express firm views that the plaintiff's injuries and disabilities flow essentially from the 1987 accident and not from the later occurrence. 118 It is true that the plaintiff, her husband and her daughter denied that the plaintiff made any complaints in relation to her back, neck, shoulder or hip before the 1987 accident and that complaints of this nature were made from time to time by her in the previous years to her general practitioner. I do not think too much should be read into this. The plaintiff was obviously a hard working woman and particularly proud of her domestic and home abilities. It is not uncommon for hard working women to encounter from time to time sporadic problems of this kind dealt with at the level of the general practitioner. The pain and disabilities sustained by the plaintiff after the 1987 accident were of a different order and , broadly speaking, of a continuous and worsening nature. In those circumstances, it would be highly probable that the plaintiff's husband and daughter were reliably recording their observations in the evidence they gave. I found these members of the plaintiff's family to be genuine, honest and truthful witnesses.

Psychological Injury 119 I have earlier in these reasons given a brief summary of the evidence of Dr James Grady in his report 25 July 1988. His opinion was that the plaintiff was suffering a chronic adjustment disorder with depressed mood. The depression was described as moderate. 120 The defendant has argued that a notional trial judge would have had misgivings about this part of the claim. This submission is founded on the history which is said to have been given by the plaintiff to Dr Grady. At page 5 in the third paragraph of Dr Grady's report is this statement: - "She says she did not ever before in her life suffer from any kind of nervous or emotional disorder." 121 The plaintiff says she quite possibly did tell Dr Grady this although she could not remember that far back. She said that she had not had nervous or emotional disorders before the accident in 1987. 122 It was then put to her in cross-examination that in October 1998 she had seen Dr Karl Koller at 6 Belgrave Street, Kogarah and he had provided a report to the plaintiff's general practitioner (Exhibit 2). The plaintiff was reminded of the contents of this report and in particular that Dr Koller had concluded that she was suffering from a mild depressive illness at that time. 123 The plaintiff agreed that she had been depressed at the time. It was apparently not long after her mother's death; one of her sons had been involved in a marriage break up, and the plaintiff herself had been found to have developed stage 1 throat cancer at the time. The plaintiff agreed that she had "always been a depressed sort of person". The plaintiff appeared to accept, that she had experienced an earlier history of depression related to, in part, her own personality, and to circumstances which arose in late 1987 and 1988 which were unconnected with the fall from the chair. On the other hand, it is clear from Dr Grady's report that her physical pain and disabilities which have worsened over the years have led to a state of depression which is clearly causally related to the 1987 injury as a reaction to it. My observations of the plaintiff supported Dr Grady's views in this regard. At one stage of her evidence when she was being cross-examined about the psychiatric aspect of her case, she became quite tearful and I thought genuinely so. Moreover, common experience of accident cases of this kind tends to suggest that accident victims with ongoing pain and unresolved back problems frequently become depressed as a reaction to the unresolved nature of the pain and disabilities. These aspects of a reactive depressed state emerge quite forcefully from the way in which the plaintiff has worded the questionnaire she provided to the defendant in this case particularly where she spoke of the way in which she perceived the medical profession had let her down (see answers to questions 5.5, 6.4, 6.7 and 6.11). These statements, which I read as quite genuine, are telling in the way they foreshadow, at an earlier point of time, the later opinions expressed by Dr Grady in 1998. 124 I do accept however, that a notional trial judge would not have perceived this aspect of the plaintiff's claim as other than a moderate component.

The Claim for economic loss 125 The defendant has submitted that this part of the plaintiff's claim would have been approached by the trial judge with considerable caution. Secondly, it is submitted that the plaintiff would not have satisfied the court that the reason for her ceasing work in December 1991 was due entirely to the 1987 accident. In support of this proposition, counsel points to the underlying degenerative disease noted in the reports of Dr Vij (Exhibit 3) and the opinion expressed by Dr Truskett (Exhibit 17). 126 I do not accept that there is any force in this last submission firstly, because I do not think any weight can be given to the opinion of Dr Truskett for the reasons I have already expressed; and secondly, I think the remarks made by Dr Vij do not carry the weight attributed to them. No such opinion has been expressed by the specialist treating doctors who have been responsible for the plaintiff's care and well being for many years. 127 Counsel for the defendant, however is on admittedly stronger ground when he points to the somewhat contradictory and confusing evidence given by the plaintiff and her husband concerning the circumstances in which the business in which she was engaged was terminated. For the reasons developed in the oral and written submissions, counsel for the defendant submits that even if the notional trial judge came to a view the plaintiff had suffered an injury which would have precluded her from working, the economic loss would have been for a closed period to either: - (a) late 1991 when the plaintiff and her husband in effect retired; or (b) October 1994, being the date of the first (and more severe) motor vehicle accident. 128 The first question is to determine whether the plaintiff ceased work essentially because of the pain and disability caused by the 1987 accident. I have already set out in some detail the fact that the plaintiff's evidence is that she ceased work for this reason. The business was, in effect, closed down as a partnership and handed over to the younger son to operate. The plaintiff's husband said he would have kept working had it not been for his wife's disabilities. She could no longer keep the business going or keep everything flowing as it should flow. In those circumstances, they decided they would give the business up and hand it over to their younger son. 129 It is necessary to make two observations about the sequence of events which followed. First, the younger son did carry the business on for a few years but apparently not very successfully. Secondly, although there was some little confusion about the date, it appears that the plaintiff and her husband sold their home in Australia and went back to Wales either at the end of November or beginning of December 1993. The plaintiff said that they had decided they were going to go back to retire or to semi-retire in Wales. They bought a home in Wales. The main reason, the plaintiff said, they moved back to Wales was that they thought she would get better medical attention in the United Kingdom for her back and with the colder weather it might have done her some good. The plaintiff's husband corroborated this statement. He said they were given an address by Dr Sheehy to see a medical practitioner at a hospital in London but it turned out they were unable to get any better medical attention in the United Kingdom and that nothing could be done for her back. 130 As a consequence, when the medical treatment did not offer any prospect in improvement, they decided to come back to Australia. This they did in about July 1994. After this time, the plaintiff's husband did some work as an employed plumber occasionally but eventually ceased work altogether in 1999. He said that he would have carried on with his work if their plumbing business had continued past 1991 because he enjoyed working for himself and became bored if he did not have something to do. 131 In my view, the evidence enables me to conclude that it was in fact the plaintiff's physical condition relating to the 1987 fall which caused her to stop work in 1991. No doubt, there were other operative factors, such as those relating to the possibility of better medical treatment overseas and family considerations as well. Essentially, the plaintiff's ongoing pain, her inability to cope with the physical and mental strain involved in "running the ship", which she and her family described, brought her to this decision. 132 The defendant submits, however, that even if I come to this view, first, there is some inherently improbable and contradictory evidence given by the plaintiff and her husband concerning the circumstances in which the business was eliminated; secondly, that the evidence is also unsatisfactory so far as it suggests the plaintiff had a pivotal role in the business; and, thirdly, there is the "clouded" question of whether the business was disposed of because of the decision of the plaintiff and her husband to retire or semi-retire, or whether it was related to her disabilities. 133 All of these matters are difficult to resolve and I admit that the notional trial judge in 1996 would have been troubled by some of these matters. I shall deal with each of them, I trust, briefly. 134 The conflicting evidence of the plaintiff and her husband relates to two matters. The first concerns the administrative procedures affecting the Gas Company which was the main client of the business. It was put to the plaintiff that there had been changes in these procedures (ie the closure of a number of the Gas Company's showrooms) which would in any event, have led to the plaintiff's administrative role becoming redundant. The plaintiff gave evidence that although she was aware that there were rumours that the Gas Company might be about to change these procedures at the time she ceased work, that had not yet happened and played no part in her decision to cease work. On the other hand, her husband's evidence was that the administrative re-arrangement relating to the closure of the showrooms had been in place for sometime before the plaintiff ceased work. Clearly either the plaintiff or her husband are wrong in his or her respective recollection. 135 In any event, I do not think any real significance turns on this discrepancy. The plaintiff explained at (T 55 lines 15-30) that the change in the Gas Company's procedures would not have had a significant effect on the duties she had to perform had she remained in the business. The plaintiff's husband whose recollection it was that these procedures had occurred either in 1988 or 1989 said (at T 166 lines 40-56) that the change in procedures did not entail any great drop off in the work done by the partnership and that it was still necessary for the plaintiff to go to three or four Gas Showrooms in the suburbs which remained open after that time. I do not consider that the difference in their recollections has any significance beyond demonstrating that one or perhaps both of them has a faulty recollection on this topic. It is not necessary to determine whose recollection is the more accurate. 136 The second matter relates to the plaintiff's "pivotal" role in the administration and customer handling aspect of the business. Counsel for the defendant made the point that it was not really an issue that the plaintiff was the more capable administrator as compared to her husband and sons. Rather, counsel argued that the evidence showed the plaintiff might easily have been replaced by a young girl trained in administrative matters (eg her husband's evidence (at T 145 line 25). He also pointed to the fact that the plaintiff's daughter Ms Turner had performed the same administrative tasks in the business while her mother and father were overseas on two or three occasions and did so quite successfully. This suggested, he argued, that although the plaintiff may have been "pivotal" to the business by comparison with her husband and sons, her absence from the business as a consequence of the 1987 injury would not have prevented the business from being carried on with the introduction of another reasonably competent full time administrative assistant. 137 There is undoubtedly force in these submissions. On the other hand, the plaintiff's involvement was much more than that of a superior administrative assistant. As Ms Turner said the brothers fought among themselves about the scheduling of the work but when her mother was in charge there was no argument. She "ran the ship". This evidence implies not only control over the work but over the participants themselves, a role which the plaintiff, as wife and mother, seems to have been singularly well equipped to handle. It does not necessarily follow that a person with her particular capabilities of controlling the family and the business would have been easy to find let alone employ, despite her husband's suggestion that a young girl could be trained in administrative matters. The same point may be made about Ms Turner's involvement in the business on the few occasions she assumed administrative charge. She was a member of the family and, in my estimate, a forceful and experienced young woman. Her evidence suggested that she was capable of controlling her brothers and her father. She gave her occupation as an "executive secretary". Although she was the youngest of the children, I gained the impression she was possibly the strongest of the children. In any event, she carried out this function for a few temporary periods only at quieter times of the year. 138 The evidence on this point is relatively finely balanced and I think that a District Court judge in 1996, although he may have been in favour of the plaintiff ultimately, might well have had some serious reservations and cautions about the evidence affecting its resolution. 139 The third and final point relates to the reasons underlying the plaintiff and her husband selling up their properties, transferring the business and moving to Wales in 1993. It encompasses also their decision to buy a home there and the subsequent decision to return to Australia as they did. It is possible to take statements from the transcript of the evidence and to read into them a definitive conclusion as to whether the plaintiff either decided to retire after 1991 or whether she was simply driven to bring the business to an end under the existing partnership because of the her health problems. The better view, it seems to me, is that the question is in truth a "clouded" one. I have already accepted that the plaintiff's pain and difficulties were affecting her substantially as at the end of 1991. At (T 55 lines 45-55) she said: - "We both decided we had been - our marriage was not very stable, and not for quite a long time since my back was playing up. I was cranky and yelling and screaming at everybody. I was married for a very long time and it was decided we wind everything up and pack up and then we would talk about it." 140 I also accept that the principal reason the plaintiff and her husband went back to the United Kingdom was to see whether they could obtain medical assistance for her problems over there. I also accept that there may have been a subsidiary motive, no doubt, to resume living in Wales and to see how that pleased them. This would necessarily have involved a consideration of whether her health problems would, in the event, in Wales improve. Further, I accept that the plaintiff and her husband had retirement in mind but I do not accept they had made any definite decision to retire, at least so far as the plaintiff's husband's work was concerned, at that time. He said that when they built they house in Wales, it was his intention that they would retire there when they turned 65 (T 145 line 55). The intention, as I understand it, was to go to Wales, buy a house there; see whether the plaintiff could recover her health, return to Australia and then a few years later go back to Wales. 141 In this fluid state of affairs, one thing seems, to my mind, reasonably clear. The failure of the plaintiff's health to improve in the United Kingdom, coupled with the fact that the family was still in Australia, probably were the major factors which led them to return to Australia perhaps more quickly than they had intended. The plaintiff's husband worked occasionally for a few more years after 1994, then gave it up. 142 As far as the plaintiff herself is concerned, her unfortunate motor vehicle accident in 1994 effectively brought to an end any residual capacity for work (if there were any) as at that date. Mr Hall QC has made the forceful point that once the plaintiff's pain and disabilities brought her work to an end in 1991, there was not in any practical sense any other work she could really perform. Certainly, it has not been suggested by the defendant that any type of work would have been available in a practical sense, to her after she finished up at the end of 1991. It must be said, however, that the question as to whether the plaintiff might have regained or pursued a capacity to work had it not been for the 1994 accident is a difficult matter to resolve, and would have been so viewed at the date of the notional trial in 1996.

Notional Trial - a concluded view on the prospects of success 143 I have already held that the plaintiff's prospects of success against BBC Hardware in terms of liability were quite strong. Secondly, I have found in favour of the plaintiff in relation to the general attack made on her credit and reliability. Thirdly, I have accepted the plaintiff as genuine and I have accepted the detail of her injuries and disabilities. Fourthly, I have indicated I am prepared to allow a modest component in the assessment of damages related to psychological injury. 144 In relation to the claim for economic loss, I have concluded that it was in fact the plaintiff's physical condition relating to the 1987 fall which caused her to stop work in 1991. 145 The economic loss claim however, is on weak grounds in two respect. First, there is a cloud over the question whether the family partnership was brought to an end solely or principally because of the plaintiff's injuries. With some hesitation I have come to the view that it probably did. 146 Secondly, the plaintiff's ability to work was certainly brought to an end by the 1994 motor car accident. Moreover, the question of the injuries sustained to her back and neck in this accident raised a significant "causation issue" which must have, at least to an extent, raised some doubts in a trial judge's mind in the 1996 notional trial. 147 It is not without significance that the plaintiff's very experienced senior counsel, in the helpful summary of assessment of damages he prepared, made an allowance for the plaintiff's prospects of recovering a judgment in accordance with the calculation contained in the document. This assessment of the plaintiff's prospect permitted of a reduction of the overall calculation which varied between 20% and 30%, depending upon the view one took of those prospects. The range of this discount was particularly influenced, so counsel said, by the recognition that the 1994 accident would have been a factor in the notional trial. This factor would have the capacity to effect not only the causation issue in relation to the general assessment of damages but also the assessment itself. 148 Mr Colefax, on behalf of the defendant, indicated (at T 218 line 42) that his client would accept the appropriateness of the discount (and presumably its range) suggested by the plaintiff. 149 I share Priestley JA's hesitation in Golec v Scott & Ors (1995-1996) 38 NSWLR 168 at 169. I am not sure that it is easy to draw, with precision, a distinction between a discount which varies between 20% and 30% in relation to estimates of the plaintiff's chances of success. Since, however, the parties are in agreement that the discount and its variation should be in this range, I am prepared to assess the discount as in the middle of the range, namely, 25%. For myself, I do not, having regard to all the circumstances, consider that the discount should be lesser or higher than the limits of this range. I have not been able to identify any factors which would, with precision, incline it more to one end of the scale than the other.

Assessment of Damages 150 I now turn to the actual assessment of damages. This is, strictly speaking, in the first instance, an of assessment of the damages which are likely to have been awarded by the notional trial judge in 1996. I have already indicated, however, that I am prepared to allow a discount of 25% to recognise the various contingencies bearing on the likelihood that the plaintiff would have recovered judgment against BBC Hardware and further that any such judgment would have been met. It will follow, since no new material facts have emerged after the notional trial date, the ultimate assessment I make will represent the damages to which the plaintiff is entitled as a consequence of the defendant's failure to take reasonable care in the discharge of the duty/retainer arising out of the relationship of solicitor and client. This assessment will need to take into account and be subject to any relevant changes to the principles of law governing the assessment of damages since the end of 1996.

General Damages 151 The plaintiff is now 63 years of age. The fall from the chair occurred nearly 13 years ago. This injury had a very considerable impact on her in that there is quite strong evidence of pain and suffering. This has, of course varied, from time to time. It may fairly be said that she is in pain for a considerable amount of the time and has lost her enjoyment of life in a number of important respects. She is unable to do her gardening and household work as she once did. She is not able to walk any great distances without discomfort and pain. She is not able to remain seated in a motor car for long periods of time. She no longer plays golf and has had to give up her interests and pursuits in the Welsh Society and Welsh Church. She has had to give up work and this imposed problems on the family as a whole. She suffers from moderate depression and does not sleep well. She presented before the court as a person who is frustrated by her condition and apprehensive about her future. 152 A range of general damages has been put to me as low as $30,000 (by the defendant) and as high as ($90,000) by the plaintiff. It is appropriate at this stage to refer to the evidence of Mr O'Halloran. He prepared a supplementary opinion (part of Exhibit "C") dated 10 July 2000. He had been asked to provide an opinion on the issue of quantum and did so in this supplementary material. It is fair to say Mr O'Halloran made certain minor assumptions in the preparation of this material which were not necessarily supported by the facts as they emerged. In addition, he appears to have been told that the 1995 car accident was the incident which significantly exacerbated the plaintiff's condition. As I have indicated earlier in this decision, it was the 1994 accident which fell into this category. These matters perhaps effect the precision of Mr O'Halloran's figures on quantum, although I have found his overall approach to be quite helpful. 153 He "assessed" damages for non economic loss at $60,000. He did not interview the plaintiff nor did he have the advantage of hearing her evidence or that of her family. It is fair to say that his general approach in the opinion he furnished was conservative and, particularly so, in comparison to the "top" range of damages sought by Mr Hall QC on behalf of the plaintiff. In fairness to Mr Hall QC, it should be noted that the figures contained in his written submissions took into account Mr O'Halloran's figures but at the bottom of the range. 154 Not surprisingly, Mr Colefax submitted that Mr O'Halloran's report of 10 July 2000 represented the high watermark of the damages the plaintiff may have obtained at a notional trial in early 1996. 155 I acknowledge the assistance I derived from Mr O'Halloran's report as indeed I was assisted by submissions on damages put to me by both counsel for the plaintiff and defendant. I must however, decide the issue of damages for non economic loss for myself. Having regard to the matters that I have identified in this decision, I am of the opinion that the notional trial judge at the relevant date would have awarded $70,000. Interest will be allowed at 2% on half of the award for general damages. This is to cover the period from the injury to judgment.

Loss of Income to 31 December 1996 (date of trial) 156 Mr O'Halloran's approach was to allow the plaintiff full economic loss from December 1991 until June 1995 and to suggest a reduced allowance thereafter. The reason he selected the June 1995 date was that he had been informed that following upon the second motor vehicle accident in 1995, the plaintiff's condition had been significantly exacerbated. It seems to be the better view that the accident in October 1994 aggravated the back injury and that the June 1995 accident was of little consequence. 157 As I have already noted counsel for the defendant suggested that Mr O'Halloran's approach constituted the high watermark of the damages to which the plaintiff may have been entitled. The defendant, however, put an alternative submission in relation to past economic loss. The first basis was that no such allowance should be made because the cessation of the business (and hence the plaintiff's weekly wage) was due to retirement and not the injury. I have indicated that I do not accept the factual situation supports this proposition. The alternative basis was a suggestion that the plaintiff be allowed a loss calculated over a period of two years and ten months at $525.00 net per week but reduced to a lesser amount to take into account her "residual earning capacity" of 60% (Dr Ellis' medical assessment Exhibit 3). The period of wage loss represents the time between December 1991 and the first motor vehicle accident in October 1994. 158 Mr Hall QC does not accept the validity of this approach. First, he says that Dr Ellis' assessment as to the percentage of disability to the plaintiff arising out of the 1987 accident is not capable of being readily converted into a residual working capacity, in practical terms. In other words, a person of the plaintiff's age, with a relatively serious back injury which does not entirely disable her, may properly be viewed as a person whose practical ability to obtain work has come to an end. Such a person, is, in real terms, a person who is not likely to be employed again in the workforce. Next, Mr Hall QC argues that the wage loss should either continue up to the date of the trial or, if the complication of the 1994 motor vehicle accident is to be taken into account, it may be more reasonably and fairly done so by a reduction or discount, rather than by total elimination. 159 In my opinion, this aspect of the assessment of the plaintiff's damages needs to be approached in a practical manner. The whole of the evidence leaves me satisfied that, in a practical sense, the plaintiff was unemployable and unlikely to obtain any job after she gave up work in December 1991. The 1994 accident plainly complicates matters but I am of the opinion Mr Hall QC submissions should succeed and that the matter is best dealt with by way of a discount rather than an elimination of all loss after the 1994 accident. This discount should be made from October 1994 to 31 December 1996. 160 Based on the plaintiff's income for the last six months prior to her ceasing work in December 1991, it appears to be common ground that the plaintiff's net weekly income was $568.83. The figures supplied by Mr Hall QC indicate that this wage loss comes to $149,033.00. I accept that it would be reasonable to allow some discount in relation to the wage loss in the period between the date of 1994 motor vehicle and the date of trial. I propose to allow a one-third discount in the sum of $20,875.54. Such a discount produces a net loss figure for the whole of the relevant period of $128,158.00. 161 Interest on the economic loss to date of trial calculated at 5.6% for five years from 1 January 1992 to 31 December 1996 yields a component of $35,884.00.

Future Loss of Income 162 Mr O'Halloran's approach commenced with the recognition that the plaintiff was about 58 years of age at the time of trial. He allowed her some two years of economic loss but at a reduced rate of $350.00 per week. He further reduced the allowance by a relatively significant recognition of the vicissitudes of life at 25%. 163 The defendant's contention was that no economic loss should be allowed after the date of the 1994 motor vehicle accident. The plaintiff, consistently with the earlier submission, maintained that an allowance should be made which varied from the approach of Mr O'Halloran. This alternative approach allowed an amount for future loss of income which recognised that the plaintiff might have worked until she was 65 but was quantified to present value terms by adopting a discount rate of 3%. This sum her counsel said, should be further discounted by 15% for vicissitudes. Finally, if the court were of the view that a discount should be applied relating to the 1994 accident, it was accepted that such a discount might be, as with the previous calculation, in the order of one-third. 164 In my opinion, the plaintiff's general approach is the preferred one, although I would make an allowance of 25% for vicissitudes. I do this because of the plaintiff's age, her prospects of early retirement, and her generally depressed type of personality. I am not satisfied that she would have necessarily have worked to the age of 65 in all the circumstances. 165 I accept however, that a deduction of one-third is a reasonable allowance to take into account the factor of the 1994 motor vehicle accident. 166 The calculation I propose to make is to accept the weekly wage figure I have mentioned earlier namely, $568.83. I have assumed for the purpose of calculation, termination of employment on 30 June 2000 yielding, in accordance with the 3% tables, an amount of $98,692.00. I apply a reduction of 25% to recognise the vicissitudes of life. Finally I have allowed a deduction of 33-1/3% to allow for the 1994 accident. 167 This yields a figure of $49,346.00.

Gratuitous Care and Future Gratuitous Care 168 The plaintiff argues that an allowance should be made for gratuitous care to the day of trial plus interest together with an allowance for future gratuitous care. 169 The plaintiff said (T 36-37) that after 1987 there was a change in relation to the heavy duty housework in her household after the accident.. She had a lady who used to come in to do the heavy cleaning for her because she could not cope with it. If she did not come, the plaintiff's husband would cope with the housework if he had time to do it. She said that she had paid this lady about $20.00 a week. The heavy housework she described was the cleaning of the bathroom, the vacuuming and the making of beds in the household. The plaintiff's husband said (T 142) that he had noticed that after the 1987 accident his wife found it very hard to do the housework. He said that he did a number of small jobs in the house which she could not do. He confirmed the payment of approximately $20.00 to a lady who came to help do the housework. 170 The plaintiff claims that an allowance should be made for gratuitous care to the day of trial at the rate of $20.00 per week from 1 September 1989 (that is following the operation on 14 August 1989) to the date of trial. If allowed in full, this would yield $7,623.00. The plaintiff claims interest on this amount at 7% for 7.33 years namely, $3,911.00. 171 The claim for future gratuitous care has however, been expressed as a variable with a range between $10,000 and $17,152.00. The first figure is an "estimate" only and the second is a mathematical calculation based on assumed life expectancy of not less than 22.85 years (see table at p 557 of the 3rd Edition of Luntz). Reliance is again placed on the cost of $20.00 per week for this period of time brought to present day terms by the 3% table. This calculation yields the "calculated" allowance being the second of the figures set out above. 172 The defendant argues that no allowance should be made for the future claim as there is no medical report which suggests that such care is needed. Nor is there any evidence to suggest that such care is currently being provided. Indeed, counsel went further and submitted that there was no medical evidence to support the necessity for the provision of past gratuitous services. 173 The principles applicable to claims of this kind are reasonably well settled (Griffiths v Kerkemeyer (1997) 139 CLR 161 at 173-174; 192-193; Van Gervan v Fenton (1992) 175 CLR 327 at 338-340; Kars v Kars (1996-1997) 187 CLR 354). Those principles are: -

(a) Modern principles of assessment of damage will permit, in appropriate circumstances, recovery of damages for a sum which represents the value of services rendered and to be provided gratuitously arising from incapacity or disablement.

(b) The relevant loss is the plaintiff's incapacity to look after himself or herself as demonstrated by the need for caring services. The loss is to be quantified by reference to the value or cost of providing those services.

(c) Damages for such gratuitous assistance should, as a general rule, be assessed by reference to the cost of having the service provided commercially. The objective market monetary value of those services is, generally, the correct measure. 174 In more recent times the High Court of Australia has confirmed that the true basis of a claim for damages of this kind with respect to care or services provided gratuitously for a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Further, the majority of the Court held that where damages are assessed in relation to this aspect of the plaintiff's claim by reference to costs prevailing from time to time during the period between the cause of action accruing and judgment, the interest calculation should be made in a way that reflects the fact that damages comprise amounts accruing over time, not a simple lump sum. The approach adopted by the High Court in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 was rejected. (Grincelis v House (HC of Australia, 3 August 2000, unreported)). 175 The application of these principles to this aspect of the plaintiff's claim are not without some difficulty. This is essentially so because the evidence is relatively sparse. There is, however, evidence that the plaintiff found it increasingly difficult to do the more heavy parts of the domestic housework. This appears from her own evidence and that of her husband. Ms Turner confirmed the details of her deteriorating capacity. She described the situation in 1995 through to 1997 when she noticed that her mother was not able to put the washing on the line or do the heavy housework. It was a real effort for her mother to climb up and down stairs. During these years the plaintiff's husband has coped with this heavier side of the housework when he has had time to do it. 176 Although there is no evidence from a medical practitioner certifying that the plaintiff required the provision of these gratuitous services in the past, I am satisfied that the evidence, viewed as a whole, entitles me to allow a claim of this kind. I have, in general terms, accepted the plaintiff's description of her continuing and worsening capacity particularly after the August 1989 operation. The medical evidence itself, taken as a whole, supports this view of her ability to do the heavier aspects of domestic duty. She plainly has difficulty sitting for any length of time and is in pain if involved in lifting or bending. It is inevitable she will continue to need help in these areas of her day to day domestic routine. 177 The amount claimed is a relatively modest one. This is not a case, like Griffiths, involving permanent paralysis and quadriplegia. I am of the opinion that it would be unreasonable not to allow this modest component. It should however be reduced by a percentage to reflect the impact of the 1994 accident. The plaintiff has suggested that an allowance of one-third is appropriate in this regard when calculating past and future loss of income. In relation to the cost of future gratuitous care, again I think it would be unreasonable not to make an allowance in favour of the plaintiff. While it is true that there is no medical certification in relation to the need for these future service, I point to the same factors I have taken into account in coming to a conclusion that an allowance for past gratuitous care should be made. While there was no specific evidence pointing to the continuation of this help from the plaintiff's husband, there is no evidence to suggest that he has ceased providing these services. I am conscious of the general evidence of the time that the plaintiff and her husband spend together at this stage of their lives and of the mutual affection existing between them. The plaintiff's husband has stood by his wife in very trying circumstances where, it appears, reasonably often, he had had to bear the brunt of her complaints, pain and frustration. All these matters lead me to conclude that the plaintiff's husband is likely to continue to supply gratuitous household care as before. Again, the amount claimed is a modest one but should be adjusted to reflect the one-third deduction relating to the 1994 motor vehicle accident. 178 Consequently I assess the claim under these headings as follows: -

Past Gratuitous Care 179 I allow $20.00 per week from 1 September 1989 (ie following the operation in August 1989) to agreed day of trial 31 December 1996 equals $20.00 per week for 7.33 years equals $7,623.00. This should be reduced by one-third and interest allowed on the resulting figure of $5,082.00 at 7% for 7.33 years. The interest component is $2,608.00 yielding a total of $7,690.00.

Future Gratuitous Care 180 I allow $20.00 per week for 22.5 years at 3%. This amount is $17,152.00. A further deduction of 33-1/3% is made (allowing for the 1994 accident) which yields $11,435.00.

Out-of Pocket-Expenses to the date of trial 181 Exhibit "CC" indicates in total a claim for $8,074.00. This is made up, in turn, of amounts paid by HCF ($7,495.00) and amounts paid by Medicare ($680.00). 182 At the conclusion of the arguments for the respective parties, it was conceded by the defendant that the amounts paid by HCF are amounts referable to 1987 accident and may be allowed. It is not conceded, however, that Medicare payments amounting to $680.00 have been shown by the evidence to be referable to 1987 accident. 183 An examination of this part of Exhibit "CC" indicates that all of the medical services appear to have been provided in 1995 or 1996. It is impossible to say from a reading of these two pages whether the particular treatments related to 1987 accident or to the later motor vehicle accidents. It is possible that some of the treatments may relate to matters unconnected with any accident, but I am prepared to assume that this is not the case. 184 It seems to me likely that a number of these treatments would be attributable to the 1987 accident. I think that the fairest method of assessing this minor aspect of the claim is, consistently with the approach I have taken earlier, to apportion one-third of the items to the 1994 motor vehicle and its consequences. 185 Accordingly, I will allow $454.00 for the disputed aspect of the claim bringing the whole of the out-of-pocket expenses allowance to $7,847.00. It was agreed between the parties that there will be no interest claimed on this item. 186 In view of the foregoing calculations, it is now possible to state that the plaintiff's assessment of damages is as follows: - 1. Damages for non-economic loss $ 70,000.00 2. Interest (on half of this amount) for 9 years at 2% $ 6,300.00

Interest of economic loss to day of trial (5 years at 5.6%) $ 35,884.00 5. Out-of-pocket expenses $ 7,847.00 6. Future loss of income $ 49,346.00 7. Gratuitous care to day of trial $ 5,082.00 8. Interest on gratuitous care to day of trial (7% for 7.33 years) $ 2,608.00

187 It is necessary to reduce the figure thus calculated by the contingency allowance of 25%. The calculation for this reduction is as follows: - 1. Damages $316,660.00 2. Reduction by 25% $ 79,165.00

188 It is agreed that I should allow interest on this reduced amount at 9.5% for the period between 31 December 1996 and the present date. This yields an interest component of $80,772.00.

Verdict 189 I propose to order that there should be a verdict for the plaintiff of $318,267.00 being the amount of $237,495.00 and interest calculated at $80,772.00.

190 Direct entry of judgment for the plaintiff in the sum of $318,267.00 I order the defendant to pay the plaintiff's costs. The Exhibits may be returned. 191 I grant a Stay of Proceedings for 28 days. 192 I stand over the cross/claim to Wednesday, 4 October 2000.

Last Modified: 09/27/2000 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.

CITATION : Roberts v Cashman [2000] NSWSC 770 CURRENT JURISDICTION: Common Law - Professional Negligence List FILE NUMBER(S) : SC 21303/95 HEARING DATE(S) : 10/07/00; 11/07/00; 12/07/00; 13/07/00; 14/07/00 JUDGMENT DATE : 30 August 2000

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Judgment (37 paragraphs)

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