Talwar v Ox Two Pty Ltd t/as Ocean Extreme & Anor

District Court of NSW|2017-03-17

Table of Contents Nature of case and factual background [1] - [4] Evidence overview [5] - [6] Credibility and reliability of testimony [7] Plaintiff's pre-accident circumstances [8] Plaintiff's most probable circumstances but for injury [9] - [13] Injuries [14] Treatment [15] - [16] Subsequent medical and allied assessments [17] - [49] Disabilities that remain [38] - [46] Work effects [47] Domestic effects [48] Mitigation [49] Assessment of damages [50] - [84] Actuarial factors [51] Non-economic loss [52] - [56] Past economic loss [57] - [61] Past loss of superannuation [62] Future economic loss [63] - [67] Future loss of superannuation [68] Past domestic assistance [69] - [72] Future domestic assistance [73] - [76] Future treatment expenses [77] - [82] Past out-of-pocket expenses [83] Summary of damages assessment [84] Disposition [85] Costs [86] Orders [87]

Nature of case and factual background

This case concerns a claim for damages arising from a boating misadventure that occurred on Sydney Harbour at about 4:00pm on Saturday 22 May 2010. The plaintiff was a passenger on an inflatable recreational motor vessel known as "Extreme 2" which was taking passengers on an adventure tour.
The vessel was owned by the first defendant, Ox Two Pty Ltd, trading as Ocean Extreme ABN 46115919509, and it was being operated as a tourist vessel in conjunction with the second defendant, Jetboats Australia Pty Ltd, trading as Harbour Jet ABN 70123849954.
As the vessel travelled northbound in the western channel of Sydney Harbour, just near the heads, the person in control carried out a jump manoeuvre over a large swell of water, at speed, which resulted in the vessel landing heavily flat on the water surface. This caused the plaintiff to be thrown from her seat, in the course of which, her face and head struck a metal handlebar structure on the vessel. As a consequence she suffered physical and psychological injuries, for which she claims damages.
The plaintiff has already secured a finding that the defendants were negligent: Talwar & Ors v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) & Anor [2016] NSWDC 78, at [343], per Mahony SC DCJ. The present component of the case involved an assessment hearing to determine the plaintiff's entitlement to damages. The proceedings are governed by the provisions of the Civil Liability Act 2002 ("CL Act").

Evidence overview

The only witnesses who gave oral evidence were the plaintiff and her husband. The respective parties relied upon tender bundles of medical records, reports and opinions, as well as economic materials, which will be referred to where it becomes relevant to do so.
The plaintiff's principal claim of continuing disability is of a psychological nature. There were conflicting expert opinions as to the nature and severity of those problems. The authors of the conflicting expert reports were not required to meet to seek agreement or to identify the basis for their disagreement, and they were not required for cross-examination.

Credibility and reliability of testimony

I consider that both the plaintiff and her husband were credible and reliable witnesses, and I accept their evidence entirely. The defendants sought to attack the plaintiff's credit by suggesting that she had tailored her evidence to assist her case on the subject of her prior experience of dizziness, years before the subject accident: T59.36; T60.41; T113.32; T114.19. The defendants were also critical of the lack of contemporaneous records of complaint by the plaintiff concerning her psychological symptoms. In my view, for the reasons outlined in my evaluation of the medical evidence, I consider those attacks on the plaintiff's credit have not been made good. Accordingly, I reject the defendants' submissions which sought to attack the plaintiff's credit as a witness. I am satisfied that both the plaintiff and her husband each gave truthful and reliable evidence.

Plaintiff's pre-accident circumstances

The plaintiff is aged 32 years. She was born in Punjab, in India. She was aged 25 years at the time of the accident. She has tertiary qualifications in design. She married in 2008. She migrated to Australia in September 2008 and shortly afterwards obtained employment as an administrative assistant with a business known as UAE Exchange in Parramatta. At the time of the accident, the plaintiff was on maternity leave from her work, and she was caring for her daughter who was then aged 10 months. But for the accident, the plaintiff had intended to return to her work in mid-2010, when her daughter would have reached the age of 1 year.

Plaintiff's most probable circumstances but for injury

I find that but for the subject accident, on returning to work from maternity leave, the plaintiff would most probably have continued in her work with UAE unless more financial rewarding work opportunities arose for her to consider changing her employment. She was in good physical and psychological health, and she had no impediments to fully exercising her earning capacity. She had the ability to arrange appropriate childcare arrangements that would have permitted her to pursue employment. The plaintiff had a second child, a son, in September 2014, and he is now 2.5 years of age. I accept that she would have had available to her appropriate childcare arrangements for the care of both children after also taking a year off work for maternity leave in respect of that second child.
The defendants sought to make something of the plaintiff's pre-accident history of dizziness. The defendants' argument in that regard was based on the plaintiff's medical records (Exhibit "B", pp 38 - 83) which were generally unremarkable, except for a note made by the plaintiff's general practitioner, Dr Christopher Grant, on 21 January 2013, which stated "… has been feeling dizzy for 2-3 days - the attacks last 5 minutes, started yesterday - had 3-4, 2 today, definite sensation of movement - first had it 10 years ago and she had a Computerised Axial Tomography Scan etc - she was seen by 3 different doctors - has notice that since her pregnancy she tires easily": Exhibit "1", p 45.
The defendants also sought to rely upon a note made by Dr Grant on 28 April 2014 which stated "… she is still getting dizzy more often than before the accident but less than in the months following the accident, once a week or so now": Exhibit "1", p 42; Exhibit "B", p 11.
Absent clarification of Dr Grant's cited summary note by oral evidence from him, I do not consider the note to provide satisfactory evidence of the plaintiff having relevant symptoms of dizziness in the lead-up to the time before the accident. The note is ambiguous, and the defendants' asserted construction was, in my view, an unreasonable one in the circumstances.
I accept the plaintiff's evidence that her previous history of episodic dizziness in 2003 was no longer a problem for her, and that this was the case long before the subject accident, for reasons that will be made clear in my analysis of the medical evidence. Without more, that earlier history would have been an unlikely source of restriction upon her earning capacity: s 13 of the CL Act.

Injuries

The plaintiff's face struck a metal hand hold bar on the vessel with considerable force. She was then unable to speak for a short time. Her face was bruised and bleeding profusely. She was shocked and frightened. She suffered a strain to her neck and her symptoms from this lasted 5 - 6 weeks. She suffered a haematoma to her right lower jaw. That haematoma, and the associated pain and discomfort took some time to resolve. In addition to the physical injury she described, the plaintiff underwent a very frightening experience, which has resulted in her having lasting psychological symptoms.

Treatment

At 17:15 hours on 20 May 2010, an ambulance attended upon the plaintiff at the Darling Harbour jetty wharf. She was then transported to Royal Prince Alfred Hospital. She was given painkillers whilst at the hospital. The assessment of the attending ambulance officer was that the plaintiff had a swollen right jaw, a laceration to the corner, and to the inside, of the right side of her mouth, with no other obvious injuries: Exhibit "B", pp 1 - 10.
It was initially thought that the plaintiff had jaw fractures and would require some of her teeth to be extracted. The plaintiff remained as an in-patient at RPAH between 20 May 2010 and 22 May 2010. She was discharged after x-rays were taken and revealed that she had no facial fractures: Exhibit "B", pp 12 - 14. Thereafter, for a time, the plaintiff was limited as to what she could eat, and took only liquid food for some weeks.

Subsequent medical and allied assessments

On 27 April 2011, the plaintiff first attended Dr Grant's practice, which was almost a year following the subject accident. Dr Grant was unable to locate any details of the plaintiff's accident in his file. His subsequent report prepared at the request of the plaintiff's solicitor, and dated 16 May 2014, was prepared after a consultation he had with the plaintiff on 28 April 2014: Exhibit "1", p 18.
On 15 April 2014, at the request of her solicitor, and for medico-legal purposes, the plaintiff was examined by Dr Robert Hampshire, a consultant psychiatrist. After taking a detailed history of the accident (Exhibit "B", pp 48 - 49) he recorded a history of the plaintiff's then current complaints comprising hyperventilation and signs of panic, he diagnosed the plaintiff was having a post-traumatic stress disorder ("PTSD"), characterised by restlessness, intrusive thoughts, distressing and irrational dreams, flashbacks, and related panic attacks, with shortness of breath, sweating, tremor, chest pain, light-headedness and jumbled thoughts. Dr Hampshire reported that the plaintiff also described occasional panic when in contact with water, including when showering. Dr Hampshire also identified the presence of the characteristics of PTSD, namely hyper-arousal, difficulty falling asleep, irritability, difficulties with concentration, and hypervigilance: Exhibit "B", pp 49 - 51.
In addition to PTSD, Dr Hampshire made a diagnosis of co-morbid panic attacks and a co-morbid dissociated state, with a mild moderate depression. He considered the plaintiff to be suffering from a severe psychological impairment, along with an associated incapacity for returning to work. He expressed a guarded prognosis and recommended psychological treatment: Exhibit "B", p 53.
On 17 April 2014, at the request of her solicitor, the plaintiff was examined by Dr Ivan Lorentz, a consultant neurologist. Dr Lorentz took a history of continuing jaw pain, anxiety, panic, nervousness, nightmares, including about frightful events such as drowning. He also noted the history of dizziness, including several spells per month, which limited her activities. In respect of the complaint of dizziness, Dr Lorentz concluded that the plaintiff had a PTSD, and that she may have had a re-activation of a previously present benign positional vertigo, which might benefit from what he referred to as a particle repositioning manoeuvre aimed at alleviating that problem. She has not yet been referred for that treatment: Exhibit "B", pp 64 - 65.
On 28 April 2014, the plaintiff attended upon her general practitioner, Dr Grant: Exhibit "1", p 18. Dr Grant had requested this attendance in order to obtain a history from the plaintiff about the accident. He related the following history and summary in his report: "* accident in a jet boat in ? May 2010 - no seat belts, no life jackets, no instructions as to what to do in an accident, the boat departed from Darling Harbour, and it landed heavily and her mouth hit the iron bar in front of her and her mouth started to bleed, she told the driver but he wouldn't stop so she had to scream and so others told him to stop which he did and they were taken back to base and one of the fellow passengers had to call for an ambulance not the boat proprietors, had to wait 20 minutes, she continued to bleed meanwhile and she was not even offered a first aid kit, and she was taken to Royal Prince Alfred Hospital by ambulance and others taken elsewhere - X Rays of jaw no abnormalities detected and was sent home with panadeine 1 every 6 hours Note Well initially at the hospital was told she had a jaw fracture and she had to have all her teeth removed but she than (sic) had another X Ray and she was told everything was OK * did not have Medicare and so she did not seek medical attention following the accident and she had a 6 month old child and he (sic) in-laws were from overseas and they were worried and so she did not seek medical attention - she had the Right sided haematoma for a couple of weeks - she took photos, she was having some dizzy spells twice a week for 4-5 months, following this she decided not to work and spend time with her child which she has done and she has not returned to work, she is still getting dizzy more often than before the accident but less often than in the months following the accident, once a week or so now The above description of her injuries and her current symptoms provide answers to most of your questions. Of some concern is the apparent increase in frequency of her "dizzy" attacks and therefore I consider it prudent to obtain the opinion of a neurologist to exclude the need for further investigation and to provide a prognosis as to the likelihood of these symptoms persisting or getting any worse." [Exhibit "1", p 18]
The defendants' criticism of the lack of any earlier contemporaneous complaints by the plaintiff of psychological symptoms was based on a chronological evaluation of the plaintiff's medical records, and Dr Grant's cited report. The plaintiff explained, and I accept, that the reason for not making earlier complaints about such matters was that she felt a cultural stigma which influenced a reluctance on her part to ventilate and discuss such matters. I accept her evidence in that regard as being truthful and reliable. In my opinion, the fact that such symptoms were disclosed to, and recognised by, her legal advisors, and made the subject of an eventual assessment by Dr Hampshire on 15 May 2014, does not derogate from the credibility or the reliability of the plaintiff's testimony.
On 23 May 2014, at the request of her solicitor, the plaintiff was examined by Dr Nigel Curtis, an oral and maxillo-facial surgeon. He deferred to a neurological opinion as to the plaintiff's accident-related symptoms of dizziness and headaches. He considered the plaintiff had no lasting physical effects from any oro-facial injuries: Exhibit "1", p 16.
On 26 May 2014, at the request of the solicitor for the defendants, the plaintiff was examined by Dr Kim Edwards, a consultant surgeon. Dr Edwards focussed on the plaintiff's then current complaints of continuing to feel dizzy, with occasional blackouts, and discomfort on the right side of the jaw. Dr Edwards stated that he could not find any objective clinical evidence that the plaintiff had any organic disability, and he stated that the plaintiff's complaints of dizziness and occasional blackouts were not "reasonably related to the accident which occurred four years ago": Exhibit "1", p 3. In my assessment, that opinion should be given very little weight as first, it is not supported by adequate reasons, as is required by UCPR Sch 7, cl 5(1)(c), and secondly, I consider those symptoms have been satisfactorily linked to the subject accident by the opinions expressed by Dr Lorentz.
On 3 June 2014, at the request of the solicitor for the defendants, the plaintiff was examined by Dr John Stephen, a consultant spinal and orthopaedic surgeon. He took a history of continued right-sided jaw pain and trouble chewing, with occasional right-sided neck pain. He considered that the plaintiff had a relatively minor soft tissue injury to her neck that had largely resolved: Exhibit "1", p 11. Dr Stephen restricted his opinion to orthopaedic matters. He considered her fit to work from an orthopaedic perspective: Exhibit "1", p 12.
On 26 February 2015, the plaintiff last attended Dr Grant's medical practice and requested from him a copy of her medical file for these proceedings. No further clinical notes were generated at that time: Exhibit "1", p 91.
On 20 March 2015, at the request of the solicitor for the defendants, the plaintiff was examined by Dr Robert Lewin, a consultant psychiatrist. Dr Lewin noted the following history as being relevant: "Ms Talwar noted the onset of bodily symptoms in the days and weeks following the physical injury. Initially, she complained of dizziness. There were episodes of dizziness lasting 5 to 10 minutes. Over subsequent months, she experienced dizziness, shortness of breath, tachycardia, air hunger ("I need fresh air."), shortness of breath and tremulousness. After a period of 5 or 10 minutes, the symptoms settled and she felt drained. She now understands that this complex of symptoms is an anxiety problem. She recognised that the bodily symptoms were frequently associated with feelings of being scared, reluctance to leave the house or with fear about driving. She is now reluctant to go out. She spoke of her fear that she might be harmed in some general sense. She related this to her daughter in particular. "If I am going to die, who is going to care for my beautiful daughter." Ms Talwar immediately understood that there was a link to her own childhood experience. She recalled that she had related her own fears about her safety to her daughter in the context of losing her mother at the age of 10. She continues to feel fearful when leaving the house. She described a range of anxiety symptoms such as tachycardia, air hunger, dry mouth, tremulousness and perspiration. She felt she would not been able to make the journey today without the support of her father in law. "I did want him to be with me." She does go out alone when her daughter is at school. She attends to her shopping and runs her various errands. She pays her bills. She said that although she is reluctant to go out, her husband encourages her to do so. When travelling by car, she is alert to danger. She warns her husband to slow down even though he tells her he is travelling at a safe speed. He finds her warnings intrusive. She is aware that her fears and concerns are sometimes excessive. In particular, Ms Talwar avoids going to the beach, ferry trips and water sports. She asks her husband to take their daughter to her swimming lessons. She told me she worries about a variety of things which never bothered her in the past. She is particularly concerned about cleanliness and washes her face excessively. "I feel I need to be very clean." She described much more intensive cleaning after using the bathroom, at the end of the day or before meals. She is also much more fastidious regarding cleaning the house. She checks the locks three times when leaving the house. Even after she has completed this, she often returns to check once again. She checks all the electrical switches and that the gas has been properly turned off several times before going to bed at night. She describes checking and she completed a routine or starting afresh if her routine is interrupted. I found evidence of a complex of anxiety symptoms including panic symptoms, obsessive compulsive symptoms, generalised symptoms of anxiety as well as some post-traumatic symptoms of anxiety. Ms Talwar said that she tries to avoid distress associated with items on the news which refer to disasters. She avoids watching news items about cyclones, tsunamis or other natural disasters. When reminded, she ruminates. "Ideas come into my mind." Ms Talwar is not troubled by dreams at this stage. She recalled that dreaming had settled. Various ideas about injury or disasters settled after a few days. She feels she can now put these out of her mind. The experiences were less of an intrusive nature than previously. Ms Talwar also described some depressive symptoms. These symptoms were worse at an earlier stage. Her sleep has improved. She now has "good days and bad days." Ms Talwar does not experience sustained depressed mood. Most nights she sleeps through except when she awakens to the cries of her infant son. Once awake, she has a tendency to ruminate about the past or to think about the accident." [Exhibit "1", pp 23 - 24]
Dr Lewin considered the plaintiff suffered post-traumatic symptoms of anxiety, panic, obsessivity and compulsivity, and some associated depressive symptoms, which had partly settled, although the anxiety symptoms had not remitted. He diagnosed the plaintiff to have an anxiety disorder which was causally related to the subject injury, and he considered that this would not have occurred but for that accident: Exhibit "1", pp 25 - 26.
In my assessment, the difference between the views of Dr Hampshire and Dr Lewin on the nature and severity of the plaintiff's psychological problems was one of degree.
In that regard, the summary and diagnosis section of Dr Lewin's report (at Exhibit "1", pp 25 - 26) expressed no opinion on the effect that the plaintiff's accident and its sequelae had on her capacity to work. All that Dr Lewin recorded on the topic of work was that since the birth of her first child, which was before the accident, she has been a full time parent. This was despite the defendants' solicitor asking him for an opinion on whether the plaintiff had suffered any incapacity for work as a consequence of accident-related psychiatric injuries: Exhibit "C".
Dr Lewin's report confirmed the presence of such injuries and disabilities, and their relationship to the accident. Dr Lewin had been provided with Dr Hampshire's report dated 15 April 2014 which noted an incapacity preventing the plaintiff from returning to work, as summarised at paragraphs [18] to [19] above. In those circumstances, Dr Lewin's silence on the question of the plaintiff's work incapacity provided no support for the position taken by the defendants on that issue, and instead, more likely suggests support for the plaintiff's case on psychological issues because Dr Hampshire's opinions were not relevantly contradicted by Dr Lewin.
On 20 May 2015, at the request of the solicitor for the defendants, the plaintiff was examined by Emeritus Professor Michael Fearnside, a consultant neurological surgeon. He took a history of the plaintiff experiencing severe headaches and dizziness over the weeks that followed the accident. The dizziness was in his view indicative of vertigo. He recorded a history that the headaches and the dizziness had continued intermittently, but with less frequency. He also noted that the plaintiff reported having developed anxiety, and a water phobia: Exhibit "1", pp 84 - 85.
Professor Fearnside was of the opinion that the plaintiff's symptoms were more psychological in nature. He considered the vertigo of which she complained in association with movement could cause significant disability. He discounted an association between the accident and the plaintiff's complaint of long term headaches: Exhibit "1", p 89.
In my assessment, there was nothing within Professor Fearnside's report that served to reasonably discount the opinion expressed by Dr Lorentz on the nature and the cause of the plaintiff's complaint of post-accident dizziness or vertigo.
On 23 January 2017, at the request of her solicitor, the plaintiff was re-examined by Dr Hampshire, who at that time considered that the plaintiff continued to suffer from PTSD, with co-morbid panic attacks and heightened anxiety, with mild to moderately severe depression. At that time, he considered that the plaintiff's prognosis was guarded: Exhibit "B", p 69.
Dr Hampshire set out a summary of the ways in which the plaintiff had been psychologically affected by the accident according to the psychiatric impairment rating scales: Exhibit "B", pp 70 - 71. He identified the following matters: 1. The plaintiff continued to struggle with her daily maintenance and house chores; 2. The plaintiff has developed an avoidant syndrome associated with the trauma she had undergone, she has become less adventurous, less involved in her children's outdoor activities, and she remains housebound, and ruminates on possible catastrophic events; 3. The plaintiff has become isolated, and less involved in family matters. Her concentration is impaired. This problem reinforces the plaintiff's belief that she is not fit to return to work, and she needs treatment to facilitate a return to work, especially after a significant absence of 6 years due to the effects of the accident.
In my view, Dr Hampshire's most recent diagnosis and observations aptly sum up the plaintiff's present situation.

Disabilities that remain

Absent any proven or sustained challenge to the summary of the plaintiff's presenting problems, I take the summaries within the reports as analysed above to be a reliably accurate account of the plaintiff's ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995.
In the main, the plaintiff's physical injuries resolved relatively quickly. The only lasting physical manifestation that remains as a claimed sequelae from the accident is the plaintiff's complaint of dizziness, of what she first complained to her general practitioner in about April 2011.
The defendants took the position that before 2014, the plaintiff had not complained to her general practitioner about any sequelae of the subject accident except for dizziness in April 2011, and in respect of that complaint, the defendant maintained that it was a pre-existing condition the plaintiff had when she was younger and when she lived in India: T8.38.
In my view, the defendants' assertion that the plaintiff's dizziness pre-dated the accident was effectively answered by the plaintiff stating that the dizziness she had experienced when she was still in India was limited to the experiences she described in 2003. In my view, the defendants have over-stated and over-interpreted the records of Dr Grant which stated "she is still getting dizzy more often than before the accident but less than in the months following the accident, once a week or so now": Exhibit "B", p 11. For the reasons outlined by the plaintiff, and which I have accepted, I am satisfied that Dr Grant's summary note of the history of dizziness does not accurately reflect the plaintiff's history.
I am reinforced in that view by Dr Lorentz's unchallenged analysis and diagnosis that the plaintiff has had a re-activation of a previously present benign positional vertigo: Exhibit "B", p 64.
The plaintiff stated, and I accept, that since her predominant post-accident sequelae were of a psychological nature, and because she felt the effects of a strong culturally-based stigma against making complaints about such matters (T36.11 - T36.22), she initially refrained from raising her psychological problems. She stated, and I accept, that the trigger which led to her disclosure of those psychological problems was an increasing inability to cope.
I have come to the conclusion that the plaintiff gave coherent and truthful evidence about the effects of the accident upon her. I accept that her significant past, and ongoing psychological complaints relating to the accident comprise hypervigilance regarding her daughter, sleeplessness, lack of confidence, anxiety, reduced capacity to handle situational pressure, reduced patience, reticence and embarrassment in revealing her feelings and psychological problems relating to the accident, dizziness, and dependence on her husband for carrying out day to day household tasks and chores.
Dr Lorentz elicited from the plaintiff a history of an association between episodes of anxiety and shortness of breath, and the plaintiff related her dizziness to such events: T51.3.
In cross-examination, the defendants suggested the plaintiff's evidence of not experiencing dizziness (except in relation to experiencing low blood pressure in 2003 in India) was not correct, and in that regard, the defendants further suggested the plaintiff was suffering from dizzy spells between 2003 and 2010. The plaintiff denied that suggestion and I accept her denials in that regard: T51.9 - T52.13; T57.45.

Work effects

The plaintiff claims and I accept, that her post-accident psychological symptoms have undermined her confidence, and I accept that this has been a substantive basis for preventing her from returning to her pre-accident work, or from seeking out other work: T29.1 - T29.32; T30.24 - T30.41; T34.45.

Domestic effects

The accident and its sequelae have interfered with the plaintiff's ability to carry out her usual domestic tasks, which has meant that her husband has taken on those tasks on a daily basis: T33.5 - T33.33. She did not require his assistance in that regard before the accident: T34.1. The cause of this change has been her accident-related psychological issues, predominantly, a loss of confidence: T34.45. These problems have been a great source of shame for the plaintiff: T37.25.

Mitigation

The plaintiff delayed seeking out psychological help for her described accident-related problems until it became absolutely necessary. This delay was due to perceived cultural stigma on her part. I do not consider that source of delay in recognising and seeking assistance for those problems, which occurred due to intrinsic and subjective considerations, represents an unreasonable failure on the plaintiff's part to mitigate her damages: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345, at [12].

Assessment of damages

In the paragraphs that follow, I set out my assessment of the plaintiff's claim for damages.

Actuarial factors

At age 32 years the plaintiff has an expected rounded median statistical life span of 53 years. She has a working life of 35 years until the retirement age of 67 years. The respective 5 per cent multiplier for 53 years and 35 years are 988.9 and 875.6.

Non-economic loss

On behalf of the plaintiff it was submitted that the plaintiff's damages for non-economic loss for pain, suffering and loss of amenity of life, should be assessed at 30 per cent of a most extreme case: s 16 of the CL Act. In contrast, the defendants submitted that the s 16 assessment should be 24 per cent of a most extreme case.
In my assessment, based on the disabilities reviewed and identified at paragraphs [38] to [48] above, and based on my analysis of the medical evidence as outlined at paragraphs [15] to [37] above, I consider the defendants' submitted assessment for damages for non-economic loss is too low, particularly having regard to the disabling effects of the plaintiff's psychological symptoms on the amenity and the enjoyment of her life.
The plaintiff has ongoing psychological disabilities which have been well documented and detailed by Dr Hampshire in his reports comprising Exhibit "B", pp 47 - 57 and pp 66 - 71. Those problems remain chronic in nature. Although the plaintiff will, as a result of the finalisation of these proceedings, receive a monetary award which will include an allowance to enable her to meet the cost of recommended treatment, there is no sound basis from within the evidence to reasonably assume that those problems will completely resolve or become cured by that treatment.
In relation to the plaintiff's experience of intermittent post-injury dizziness, on the basis of Dr Lorentz's opinion, I find that the re-activation of the plaintiff's previously benign positional vertigo is a matter for which the defendants must accept responsibility: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]; p 406. Dr Fearnside's opinion does not contradict Dr Lorentz's view on that issue: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Insurance Australia Ltd trading as NRMA Insurance v Helou [2008] NSWCA 240, at [52] - [54]. I am satisfied that the plaintiff has proven that but for the accident in question, she would not have experienced these problems: Glen v Sullivan [2015] NSWCA 191; s 5D of the CL Act; Strong v Woolworths Ltd t/as Big W [2012] HCA 5, (2012) 246 CLR 182, at [18] and [32].
At the age of 32 years, I consider that those problems call for a more substantial assessment than that submitted on behalf of the defendants, but not to the extent submitted on the plaintiff's behalf. In my assessment, I consider the appropriate percentage for a most extreme case according to the requirements of s 16 of the CL Act to be 28 per cent. I therefore assess the plaintiff's damages for non-economic loss in the sum of $84,500.

Past economic loss

On behalf of the plaintiff, a claim is made for past economic loss in the sum of $124,032, calculated on the basis of a claimed loss of $496.13 per week net over 250 weeks. The basis of the claim for $496.13 per week net is in the financial years 2009 and 2010, the plaintiff's average income was calculated to be $496.13 per week net. She has not worked since the accident.
The plaintiff does not claim past loss of income for the entire period of unemployment since the accident. This is because she was away from her work and on maternity leave at the time of the accident. Her child was aged 10 months, and she was not due to return to work until her daughter's first birthday, in July 2010. The effects of the accident prevented that return to work. Since the accident, and whilst she remained off work, the plaintiff had a second child who was born in 2014. A discount allowance is therefore required to be made for a further year of absence from employment for maternity leave in respect of that child. In the circumstances, the plaintiff's claim for a loss of earnings over 250 weeks seems reasonable subject to some discounting factors.
In contrast to the plaintiff's claim for $124,032, the defendants submitted the appropriate allowance for this head of damage should be for about 6 months loss of earnings following the accident, at $10,000, which was later amended to $12,500: MFI "4" and MFI "7". I reject that submission as it appears to be unjustifiably arbitrary, and in my assessment, it does not reasonably take into account the plaintiff's inability to work due to her accident-related psychological symptoms.
In my assessment, the plaintiff's claim for past loss of earnings is not capable of a calculation that was as precise as was submitted on her behalf. Whilst I accept that she had assistance available to her with childcare, which would have enabled her to resume work, it is not clear on the evidence, that on the expiry of each of the two 12 month periods of maternity leave, she would have necessarily have had an immediate return to work in each instance but for the accident.
For that reason, I consider the otherwise reasonable calculation submitted on behalf of the plaintiff, should be discounted to reflect such circumstances. I therefore assess the plaintiff's damages for past economic loss in the sum of $100,000.

Past loss of superannuation

I assess the plaintiff's claim for past loss of superannuation in the sum of $11,000.

Future economic loss

On behalf of the plaintiff, a claim was made for future economic loss in the sum of $166,561, which comprised a projected present rate of loss of $567 per week net over a period of 8 years, discounted by 15 per cent on account of potential adverse vicissitudes.
In contrast, the defendants initially submitted there should be no allowance for this head of damage (MFI "4"), but the defendants later submitted that any such allowance should be limited to a period of 6 months, estimated at $14,000: MFI "7".
For the plaintiff to receive an award for future loss of earning capacity, it must be shown not only that such a loss of capacity exists, but that also, that it is likely to be productive of a financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
I am satisfied that but for the accident, the plaintiff would have returned to her work with UAE, or if not, that she would have sought work that was at least similarly paid. I am also satisfied that her psychological impairments due to the accident continue to prevent her from returning to such work in the immediate future. I consider it likely that in the coming years, once the plaintiff pursues the recommended psychological treatment for which she will receive treatment, it is more probable than not, that she will ultimately be able to increasingly cope with her psychological symptoms and that she will gradually return to some kind of work for which she is qualified and experienced: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
That scenario poses difficulties for assessment. Whilst the submission made on behalf of the plaintiff in respect of this head of damage is not unreasonable, I consider it to be too precisely calibrated for the circumstances disclosed in the evidence. In light of that difficulty, I consider that it would be appropriate to assess a discounted buffer sum in respect of this element of the plaintiff's claim: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27]. I therefore assess the plaintiff's damages for future economic loss, in the buffer sum of $125,000.

Future loss of superannuation

In accordance with well settled practice, I assess the loss of the employer funded superannuation component on future economic loss of $125,000 at 12.5 per cent, namely $15,625.

Past domestic assistance

The plaintiff initially claimed the value of past gratuitously provided domestic assistance in respect of two periods. The first was for an initial 6 months between 22 May 2010 at 14 hours per week at $27 per hour, namely $9,828, and the second being for 7 hours per week thereafter, for a period of 2 years, at $27 per hour, namely $19,656, totalling $29,484.
It was apparent that the plaintiff's submission did not accurately reflect the rates specified by s 15 of the CL Act. This was drawn to the attention of counsel, a revised schedule was prepared showing the correct calculation on those assumptions to be in the amount of $54,104.
In contrast, the defendants submitted that an award for past domestic assistance should be limited to the sum of $5000, which was not further explained: MFI "4". The defendants did not forward a submission in reply to the plaintiff's revised monetary submission on this head of damage.
On the basis of the factual descriptions of the domestic arrangements for housework as given by the plaintiff and her husband, which I accept, to the effect that the plaintiff became psychologically impaired in her ability to perform housework, and accepting Dr Hampshire's narrative of the reported history which is consistent with the plaintiff's evidence, I accept the plaintiff's revised submissions on the quantification of the claim for past domestic assistance. I therefore assess the plaintiff's damages for past domestic assistance in the amount of $54,104.

Future domestic assistance

On behalf of the plaintiff, it was submitted that the claim for future domestic assistance should be assessed in the amount of $87,319. That calculation was predicated upon the projected value of 2 hours of assistance per week, at the paid rate of $44.15 per hour, on the 5 per cent discount tables over the plaintiff's life expectancy (x 988.9) without further discount.
In contrast, the defendants submitted that an allowance of $5000 be awarded for this head of damage. I consider that submission should be rejected in view of its arbitrary nature, which did not come to grips with the nature of the evidence.
In my assessment, the submission advanced on behalf of the plaintiff is too high. It does not reflect the potential for improvement in the plaintiff's confidence levels over time, after treatment, commensurate with what is expected to be a gradual increase in her ability to return to work. I consider that co-extensively with that projected course, the plaintiff's need for domestic assistance will commensurately decrease.
In those circumstances, I consider that the appearance of precision embodied in a projected mathematical assessment submitted on behalf of the plaintiff is contra-indicated in this case. Instead, I propose to award a discounted buffer amount that takes such factors into account. I therefore assess the plaintiff's damages for future domestic assistance in the buffer amount of $30,000.

Future treatment expenses

On behalf of the plaintiff, it was submitted that an allowance should be made for future treatment expenses in the amount of $39,492. That sum comprised allowances for future psychological, psychiatric, general practitioner and physiotherapy consultations projected over various periods, some of which were assumed to be lifetime expenses: MFI "6".
In contrast, the defendants initially submitted that future treatment expenses be allowed in the sum of $5000 [MFI "4"] but that submission was later amended to incorporate an upgraded allowance in the sum of $11,858: MFI "7".
Dr Lewin suggested the plaintiff needed to be referred to a clinical psychologist for about 12 out-patient treatment sessions for cognitive behavioural therapy, desensitisation, and to develop coping strategies, as well as breathing control exercises, and to learn how to manage her symptoms. He estimated those sessions would each cost $238, or a little under $3000: Exhibit "1", p 26. The total cost of those treatments was not estimated.
Dr Hampshire's treatment recommendation was more extensive, and unchallenged. He suggested that for her trauma syndrome, the plaintiff be given some newer treatment techniques, comprising "Brainspotting, Eye Movement Desensitisation and Reprocessing (EMDR), Thought Field Therapy, [and confusingly] and/or Neuro feedback": Exhibit "B", p 69. In light of the guarded prognosis he expressed, he considered some 15 to 20 sessions would be needed for the plaintiff to obtain significant improvement for her trauma syndrome, co-morbid depression, panic attacks, heighted anxiety and dissociative states.
I accept Dr Hampshire's recommendations as being reasonable. In those circumstances, where it is not possible to calculate the cost of treatment in the short to medium term, I consider that a general buffer sum should be incorporated into the plaintiff's damages assessment to allow for such treatment. The duration and frequency is difficult to predict with calculated precision.
Having regard to the treatment regime recommended by Dr Hampshire, including the need for supporting general practitioner contact, possible medications, and having regard to the uncertain pattern of the treatment that will be sought, I consider that a buffer amount of $15,000 represents a fair allowance for this head of damage. I therefore assess the plaintiff's damages for future treatment expenses in the amount of $15,000.

Past out-of-pocket expenses

The parties agreed (at T109.32 - T109.43) that the plaintiff's past out-of-pocket expenses should be assessed at $401.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: Head of damage Plaintiff's claim Defendants' submission Assessment (a) Non economic loss $139,000 $33,500 $84,500 (b) Past economic loss $124,032 $12,500 $100,000 (c) Past loss of superannuation $13,643 $1,300 $11,000 (d) Future economic loss $166,561 $14,000 $125,000 (e) Future loss of superannuation $20,820 $1,500 $15,625 (f) Past domestic assistance $54,104 $5,000 $54,104 (g) Future domestic assistance $87,319 $5,000 $30,000 (h) Future treatment expenses $39,492 $11,858 $15,000 (i) Past out-of-pocket expenses $401 $401 $401 Totals $645,372 $85,059 $435,630

Disposition

The plaintiff has established an entitlement to a judgment in her favour in the sum of $435,630 in respect of the injuries she received in the subject accident.

Costs

The plaintiff has succeeded in the proceedings. She is therefore entitled to have her costs of the proceedings paid by the defendants on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $435,630; 2. The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required.

Amendments 06 April 2017 - Paragraph [84] - correction of typographical error, deletion of "Draft". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2017

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