Vasa v Ubiparipovic & Anor - [2017] NSWDC 269 - NSWDC 2017 case summary — Zoe

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Vasa v Ubiparipovic & Anor

[2017] NSWDC 269

District Court of NSW|2017-09-29

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-09-29

Catchwords

TORTS - negligence - motor vehicle accident - liability admitted
(1961) 106 CLR 340 HG v The Queen [1999] HCA 2
(1999) 197 CLR 414 Kars v Kars [1996] HCA 37
(1996) 187 CLR 354 Larson v Commissioner of Police [2004] NSWCA 126 Mt Isa Mines Ltd v Pusey [1970] HCA 60

Source

Original judgment source is linked above.

Catchwords

TORTS - negligence - motor vehicle accident - liability admitted(1961) 106 CLR 340 HG v The Queen [1999] HCA 2(1999) 197 CLR 414 Kars v Kars [1996] HCA 37(1996) 187 CLR 354 Larson v Commissioner of Police [2004] NSWCA 126 Mt Isa Mines Ltd v Pusey [1970] HCA 60(1970) 125 CLR 383 Majkic v Bonnano [2008] NSWCA 253 Medlin v State Government Insurance Commission [1995] HCA 5

Judgment (45 paragraphs)

[1]

Table of Contents Nature of case and factual background [1] - [3] Issues [4] - [7] Evidence overview [8] Credit and reliability of testimony [9] - [19] Plaintiff [10] - [12] Plaintiff's father [13] Plaintiff's mother [14] - [16] Mrs French [17] - [18] Facts [20] - [178] Plaintiff's background circumstances [21] - [23] Pre-accident schooling [24] - [29] Pre-accident health of the plaintiff [30] - [33] Accident circumstances [34] - [37] Injuries [38] - [39] Ambulance and hospital assessments of injuries [40] - [43] Initial general practitioner follow-up [44] - [45] Subsequent reviews, assessments and treatment [46] - [47] Mitigation [48] - [53] Findings on conflicting medical opinions [54] - [118] Disabilities that remain [119] - [135] Domestic effects [136] - [139] Consideration of school records & evidence of Mrs French [140] - [177] Assessment of damages [179] - [248] Actuarial factors [180] Future economic loss and related loss of superannuation [181] - [206] Future treatment expenses [207] - [229] Future domestic assistance [230] - [246] Past out-of-pocket expenses [247] Summary of damages assessment [248] Disposition [249] Costs [250] Orders [251]

[12]

Pre-accident schooling

The plaintiff had a troublesome time in her early school years. She began truanting in Year 8: T31.44. This was because she had been bullied at school in her early years. Her older brothers had taught her to fight back in response, and this appears to have created disciplinary difficulties for her at school. The plaintiff changed schools a number of times due to bullying and due to the effects of bullying: T27.15. The history of bullying was influential in her poor attendance at school. She explained that she had been scared of going to school: T27.45 - T27.50.
The plaintiff acknowledged that before ultimately changing schools to enrol in the final school she attended, namely St John's Park High School, she had been in the "wrong crowd": T32.2. This appears to have adversely influenced her behaviour, progress and attendances at school in 2011, 2012, 2013 and for the first part of 2014.
In mid-2014, the plaintiff changed schools to enrol at St John's Park High School. Her aim in doing so was to seek to put her past school difficulties behind her. In that context, she was interviewed by Mrs French, then the principal of that school, who was aware of the negative aspects of her prior schooling, and who was nevertheless prepared to give the plaintiff the opportunity she was seeking to pursue.
I am satisfied that before her accident, the plaintiff was motivated to complete her secondary schooling to the level of achieving her HSC, as had her brothers before her: T12.5. I am also satisfied that she was motivated to pursue tertiary studies and was prepared to apply herself in that regard.
The plaintiff's pre-accident home environment was at times not conducive to her education in that her parents were not proficient in the English language, and they were unable to assist her with her school work: T26.46 - T26.50. This was further complicated by her need to move to live with other relatives for a time in 2013: T32.30 - T32.49. She then moved to live with the ex-partner of one of her brothers (T33.38) but at the time of the accident she was living with her parents: T11.8 - T11.9.
I shall return to the subject of the plaintiff's progress at school, and her ultimate expulsion from school, as a prelude to evaluating the plaintiff's claim for economic loss, when in relation to necessary findings as to what the plaintiff's most likely future circumstances would have been but for the accident: s 126(1) of the MAC Act.

[18]

Subsequent medical and allied reviews, assessments and treatment

The voluminous pre and post-accident clinical records were tendered. These records comprised some 137 pages which involved some duplication. Much of the historical material within those records did not become the focus of submissions.
The following sub-paragraphs set out the chronology of those numerous medical and allied attendances and assessments that the plaintiff has undergone since the subject accident. The chronology of events shows that in 2015, the plaintiff underwent some 50, if not more, medical and allied attendances, including a medical examination at the request of the defendant. In 2016, there were 14 such attendances. The chronology of those occasions is as follows: 1. On 9 February 2015, which was two days after the accident, Dr Foo provided the plaintiff with a certificate of unfitness which was expressed to be valid until 10 February 2015: Exhibit "B", p 152; 2. On 10 February 2015, at the request of Dr Foo, the plaintiff underwent an x-ray of her cervical spine, which was reported as showing normal facets and normally aligned vertebral bodies. No acute bony injury was demonstrated, the intervertebral disc spaces were preserved, and no paravertebral soft tissue swelling was noted: Exhibit "B", pp 146 - 147; 3. On 29 February 2015, Dr Foo completed a medical certificate on examination of the plaintiff on 9 February 2015, which stated his diagnosis to be that the plaintiff had a whiplash injury to her neck, and a neck strain, for which she may need physiotherapy: Exhibit "B", p 6; 4. On 5 March 2015, Dr Bui, the plaintiff's new general practitioner, certified that the plaintiff had sustained a whiplash injury to her back and to her neck, for which she was prescribed physiotherapy and analgesia. This was the first occasion on which the plaintiff's post-accident complaint of back pain was noted in any clinical record: Exhibit "B", p 14; 5. On 5 March 2015, Dr Bui referred the plaintiff to Mr John Leung, a physiotherapist, for treatment: Exhibit "B", p 124; 6. On 5 March 2015, the plaintiff saw Dr Bui for the effects of the accident on 7 February 2015. He recorded the mechanism of the accident as a collision occurring from behind, causing what I interpret to be a hyperflexion and hyperextension injury, which was described by him as a "whiplash on MVA 7/2/15": Exhibit "B", p 52; 7. The recorded clinical details of that consultation were somewhat sparse. Dr Bui noted the plaintiff had been a front seat passenger and had worn a seatbelt, and that her range of movement was "normal, with some discomfort". Surprisingly, the areas of discomfort were not further described on that occasion. Painkilling medication was prescribed; 8. On 6 March 2015, the plaintiff completed a personal injury claim form in which she stated that her injuries sustained in the car accident were to the middle, and to the left of her lower back, to her neck, mainly on the left side, and to the back of her neck: Exhibit "B", p 11; 9. On 9 March 2015, the plaintiff commenced what became a course of 24 physiotherapy sessions which continued until 9 July 2015. The physiotherapist diagnosed the plaintiff as having a cervical whiplash and lower back pain: Exhibit "1", pp 68 - 71; 10. On 21 March 2015, the plaintiff saw Dr Bui again. On this occasion, the whiplash injury in the motor vehicle accident was recorded as having affected the plaintiff's neck and back. At that time, it was also noted the plaintiff had not improved, but that her condition was stable. Physiotherapy and hydrotherapy were prescribed, as was Panadol Osteo, and CT imaging of the neck and lumbar spine was ordered: Exhibit "B", p 52; 11. On 26 March 2015, the plaintiff underwent a two level CT of her spine, which was reported as showing low grade disc bulging at C5/C6 and a normal lumbar spine, apart from some minimal diffuse disc bulging at the levels T12/L1, L2/L3, L3/L4: Exhibit "B", p 29; 12. On 7 April 2015, the plaintiff saw Dr Bui, who at that time, made a diagnosis that the plaintiff had sustained a whiplash injury to her neck and to her back. At that time, the physical and psychological impacts of the accident were discussed with the plaintiff: Exhibit "1", p 4; 13. On 8 April 2015, Dr Bui wrote to the CTP insurer, Allianz, suggesting the plaintiff be provided with 3 months of access to hydrotherapy following physiotherapy: Exhibit "B", pp 101 and 121; 14. On 14 April 2015, the CTP Insurer, Allianz, advised Dr Bui that it declined to pay for the hydrotherapy that had been recommended to the plaintiff: Exhibit "B", pp 135 - 138; 15. On 15 April 2015, Dr Bui noted the plaintiff had ongoing neck and back problems. He also noted the results of CT scanning of her neck, and her overweight condition: Exhibit "B", p 91; 16. On 16 April 2015, Dr Bui noted the letter from Allianz declining to pay for treatment: Exhibit "B", p 51; 17. On 17 April 2015, the plaintiff was seen again by Dr Bui for her accident-related neck and back problems, and to discuss the radiology results, her symptoms, the psychological impacts those matters had upon her, treatment options, and strategies for mood management: Exhibit "B", pp 50 - 51; 18. On 17 April 2015, Dr Bui proposed an updated review and care plan for the plaintiff: Exhibit "B", pp 93 - 97; 19. On 17 April 2015, the plaintiff completed an anxiety and depression scale test which, in the plaintiff's 14 answers, indicated she had psychological problems at that time: Exhibit "B", p 115; 20. On 5 May 2015, the plaintiff saw Dr Bui again. He noted a history of worsening neck and back pain, sleep problems, difficulty finding a comfortable sleeping position, her sporting activities being affected, and that she was "feeling down, upset". At that time the plaintiff was attending physiotherapy and undertaking exercises at home: Exhibit "B", p 50; 21. On 7 May 2015, which was 3 months post-accident, Dr Bui noted the plaintiff's history, as recorded by a dietician, who had noted the plaintiff weighed 107kgs. The dietician noted that since her accident, the plaintiff could not play football, she was depressed, and was eating an unsuitable diet for which management strategies were given: Exhibit "B", p 50; 22. On 25 May 2015, the plaintiff saw Dr Bui for claim documentation purposes. A history of post-accident anxiety, neck and back pain, sleeping difficulties and ADL difficulties were noted. A request was made for cervical and lumbar MRI scans: Exhibit "B", p 49; 23. On 26 May 2015, the plaintiff saw Dr Bui again for her accident-related neck and back problems. The pain levels were noted as being 8/10. The plaintiff gave a history of not playing sport, of having difficulties with the activities of daily living, and on examination, restricted back movements were noted. An MRI scan was noted as being contemplated: Exhibit "B", p 49; 24. On 26 May 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 98; 25. On 28 May 2015, Dr Bui tried unsuccessfully to contact the CTP claims manager at Allianz to discuss the plaintiff's need for MRI scans and treatment: Exhibit "B", p 49; 26. On 29 May 2015, Dr Bui prepared an historical report of the plaintiff's history, management and treatment which followed the subject accident, in which he identified his diagnosis that the plaintiff had a whiplash injury to her neck and her back, and had some resultant reactive anxiety: Exhibit "B", pp 38 - 40; 27. The plaintiff has continued to see Dr Bui on numerous occasions between 8 April 2015 and 13 October 2015. Some of those occasions involved Dr Bui unsuccessfully attempting to negotiate with the CTP insurer for funding of some therapies he was recommending to the plaintiff: Exhibit "1", pp 5 - 29; 28. On 11 June 2015, Dr Bui recorded the plaintiff's history of continuing back pain, difficulty sleeping, neck soreness, and difficulty sitting at a desk to write. He also noted restriction of the range of movements of the affected parts and that the plaintiff was not playing sports. Physiotherapy exercises were noted: Exhibit "B", pp 48 - 49; 29. On 11 June 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 99; 30. On 12 June 2015, the CTP Insurer, Allianz, wrote to Dr Bui declining to pay for cervical and lumbar MRI scans: Exhibit "B", pp 104 - 105; 31. On 16 June 2015, Dr Bui called her in to discuss the insurer's response in declining the request for MRI scans: Exhibit "B", p 48; 32. On 19 June 2015, the plaintiff was seen by Dr Bui for an unrelated respiratory cough: Exhibit "B", p 48; 33. On 19 June 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 67; 34. On 23 June 2015, Dr Bui saw her again for accident-related neck and back problems, for which a certificate was issued: Exhibit "B", pp 47 - 48; 35. On 7 July 2015, Dr Bui saw her again for ongoing problems with her neck and back, noting the plaintiff had some good and bad days, and also noting they were waiting for MRI approval: Exhibit "B", p 47; 36. On 7 July 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 68; 37. On 24 July 2015, Dr Bui saw her again for accident-related neck and back problems. Pain was noted on a range of movements. The plaintiff was noted to be doing physiotherapy exercises, and going to hydrotherapy, and was taking painkilling medication: Exhibit "B", p 47; 38. On 24 July 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 70; 39. On 7 August 2015, Dr Bui saw her again for accident-related neck and back problems, and it was noted that pain was keeping her awake at night. She was going to physiotherapy and taking Panadol, but could not afford to go to hydrotherapy: Exhibit "B", p 47; 40. On 7 August 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 71; 41. On 21 August 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains. Dr Bui noted there was no approval for an MRI scan, and therefore, treatment options were discussed, and certificates were issued: Exhibit "B", p 46; 42. On 21 August 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", pp 46 and 72; 43. On 21 August 2015, Dr Bui issued a medical certificate in which the plaintiff's accident-related neck and back problems were identified, and in which he noted the prescription of Panadol Osteo, 665mgs 2 g 8h prn for whiplash: Exhibit "B", p 73; 44. On 4 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains. It was noted that the pain, especially the back pain, was keeping the plaintiff awake at night. It was also noted that the plaintiff could not afford hydrotherapy. Diagnostic neck and back MRI scans were requested: Exhibit "B", p 46; 45. On 4 September 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 74; 46. On 8 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains. The back pain was reported to be worsening, and it was noted that neither Medicare nor the insurer would approve the costs of an MRI scan: Exhibit "B", p 46; 47. On 28 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains: Exhibit "B", p 45; 48. On 29 September 2015, the plaintiff saw Dr Bui for her accident-related neck and back pains: Exhibit "B", p 45. 49. On 29 September 2015, Dr Bui prepared an enhanced or updated primary care plan and referred the plaintiff to an exercise physiologist: Exhibit "B", pp 77 - 81; 50. On 1 October 2015, the plaintiff underwent a physiotherapy assessment aimed at increasing her fitness: Exhibit "B", pp 128 - 129; 51. On 13 October 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 82; 52. On 13 October 2015, the plaintiff saw Dr Bui for ongoing neck and back pains and related discomfort, difficulty sleeping, and stress. Counselling was provided, the plaintiff was encouraged to exercise, and access to hydrotherapy was recommended. It was noted she was still managing to go to school: Exhibit "B", p 45; 53. On 13 October 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 82; 54. On 18 October 2015, the CTP insurer, Allianz, wrote to Dr Bui again declining to pay for cervical and lumbar MRI scans: Exhibit "B", pp 102 - 103; 55. On 20 October 2015, Dr Bui sent a further copy bundle of the plaintiff's medical records to the CTP insurer, Allianz: Exhibit "B", pp 44 - 45; 56. On 21 October 2015, the plaintiff had a further consultation with Dr Bui: Exhibit "1", p 61; 57. On 2 November 2015, Dr Bui issued a certificate of unfitness for school and sport: Exhibit "B", p 83; 58. On 4 November 2015, the plaintiff underwent MRI scans of the cervical and lumbar spines which did not identify any significant pathology: Exhibit "B", p 57; 59. On 1 December 2015, the plaintiff consulted Dr Bui for accident-related pains. The results of an MRI scan of the neck and back were discussed: Exhibit "B", p 44. A letter certifying unfitness for school and sport was prepared: Exhibit "B", p 85; 60. On 11 December 2015, at the request of the CTP insurer, the plaintiff was examined by Professor Paul Myers, a consultant general and vascular surgeon. He noted there was some limitation of voluntary movement of the lumbar and thoracic spines "but not particularly the cervical spine". He considered the plaintiff had some "mild soft tissue injuries to the cervical and lumbar spines which has now settled". He considered the plaintiff's limitation in shoulder movements were mixed and were "not medically plausible", but there were demonstrated mild limitations of movement of the thoracic and lumbar spines: Exhibit "1", pp 72 - 84; 61. On 5 January 2016, the plaintiff saw Dr Bui for continuing complaints of accident-related neck and back pain: Exhibit "B", p 44; 62. On 28 January 2016, the plaintiff saw Dr Bui for continuing complaints of accident-related neck and back pain: Exhibit "B", p 43; 63. On 28 January 2016, Dr Bui referred her to Dr Mark Sheridan for management of ongoing neck and back pain in view of the results of the radiological scans of the neck and back: Exhibit "B", p 86. There was no report tendered from that doctor. It is not clear whether the plaintiff was seen by him. The defendant made no submissions on this issue and therefore I draw no adverse inferences; 64. On 1 April 2016, Dr Bui wrote a letter to the plaintiff's solicitors: Exhibit "B", p 43; 65. On 5 April 2016, Dr Bui prepared a primary care plan which, inter alia, identified the need for the plaintiff to have dietary advice and exercise for weight control: Exhibit "B", pp 61 - 65. At that time, it was noted the plaintiff's neck and back pains were worsening, she was having difficulty sleeping, and having difficulty and pain with getting up and down from the seating position in a chair: Exhibit "B", p 43; 66. On 5 April 2016, Dr Bui provided her with a certificate of unfitness for school and sport: Exhibit "B", p 66; 67. On 2 May 2016, the plaintiff saw Dr Bui for her accident-related neck and back problems. It was noted that she was exercising, but in addition to her neck and back problems she was experiencing clicking problems with her knees when walking, and was missing days at school because of back pain: Exhibit "B", p 42; 68. On 5 August 2016, 18 months post-accident, at the request of her solicitors, the plaintiff was examined by Dr Sheikh Habib, a consultant orthopaedic surgeon: Exhibit "B", pp 155 - 160; 69. Dr Habib took a history of the plaintiff having ongoing neck problems radiating into the right trapezius area, since the accident, and of the plaintiff having developed low back pain fairly soon after the onset of her neck pain: Exhibit "B", p 156; 70. Dr Habib also noted the plaintiff took some time off school since the accident: Exhibit "B", p 156. His findings on examination revealed tenderness over the right trapezius, and minimal tenderness in the lower cervical spine, with minor discomfort on right rotation and left lateral flexion. Considering the plaintiff's young age, he thought her back movements were somewhat restricted: Exhibit "B", pp 156 - 157; 71. After Dr Habib reviewed the plaintiff's history, his findings on examination, and the imaging reports showing the reported disc bulgings in the cervical and lumbar spines, and considering the dual impacts of the collision, he noted that from the viewpoint of his specialty, the plaintiff's ongoing complaints of significance were continuing low back symptoms of pain associated with long term sitting. He considered the neck and right shoulder symptoms had eased off considerably: Exhibit "B", p 157; 72. Dr Habib commented on the report of Professor Myers. In that regard, he stated that "I did not think the plaintiff's prior injuries could be used to exclude any future injuries and complaints". That opinion, which was reasonable on its face, was not challenged, and I accept it: Exhibit "B", p 157; 73. Dr Habib was critical of the opinion of Professor Myers, which he considered had disregarded the abnormalities in the plaintiff's back movements. He considered Professor Myers had based his opinions on terminological and statistical descriptors, and he noted his opinion that the plaintiff had a mild musculo-ligamentous strain to her neck, mostly resolved, and a chronic musculo-ligamentous strain to the back, aggravating facet joint arthropathies: Exhibit "B", pp 157 - 158; 74. Dr Habib considered the plaintiff's injuries (to the neck and to her low back) in the subject accident to be substantial contributions to the plaintiff's current conditions of which she complained: Exhibit "B", p 158; 75. On 25 August 2016, at the request of the Medical Assessment Service, the plaintiff was examined by Dr Samson Roberts, a consultant psychiatrist: Exhibit "1", pp 115 - 123; 76. Dr Roberts considered that the subject accident had caused the plaintiff to suffer a psychological injury in the form of a chronic adjustment disorder with mixed anxiety and depressed mood. He noted that the plaintiff had not been referred for any treatment of that condition. He also noted (at Exhibit "1", p 120) that there were no inconsistencies in the plaintiff's presentation at interview; 77. Dr Roberts noted the insurer's query that the plaintiff had not raised any psychological symptoms until her consultation with Dr Bui on 5 May 2015. He did not make any remarks to suggest that the interval between the subject accident and that complaint meant there was no connection between those events. On the contrary, Dr Roberts dismissed the insurer's query by noting that the plaintiff's medical records showed that Dr Bui had, on 7 April 2015, made reference in his notes to the psychological impact the accident had on the plaintiff: Exhibit "B", p 167; Exhibit "1", p 120; 78. Dr Roberts reported the plaintiff complained of physical limitation, weight issues, amotivation to address that problem, that her psychiatric diagnosis contributes to a reduced level of social and recreational participation, and he noted some anxiety with car travel, some social withdrawal, and a compromise in concentration: Exhibit "1", p 122; 79. On 10 October 2016, at the request of the Medical Assessment Service, the plaintiff was examined by Dr James Bodel, an orthopaedic surgeon. He considered that in the subject accident, the plaintiff had suffered soft tissue neck, back, thoracic and bilateral shoulder injuries with a direct causal link to the subject accident: Exhibit "1", pp 101 - 113; 80. At that examination, Dr Bodel took a history of ongoing head and neck pain aggravated by the head down posture, or the overhead use of the arm, radiated pain over the shoulders, aggravated by pushing, pulling or lifting movements, identifying the low back pain as the most troublesome area, aggravated by prolonged sitting, bending, or lifting: Exhibit "1", p 104; 81. Dr Bodel's examination of the plaintiff revealed a slight restriction of neck movements, and tenderness on palpation of the lumbo-sacral junction on the right, with guarding in that area: Exhibit "1", p 105. He apportioned none of those problems to any pre-existing condition: Exhibit "1", p 112; 82. On 27 July 2017, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Margaret Gibson, a consultant occupational health physician. She considered the plaintiff's history of left-sided neck, left shoulder and low back pains, with limited standing and walking tolerance. Dr Gibson considered the plaintiff had sustained a soft tissue injury to her neck. She considered that it was unlikely that the plaintiff's lower back complaints were caused by the accident. She did not explain her reasons for that latter view. This is a matter that requires further consideration in seeking to reconcile the conflicting medical opinions. Dr Gibson stated there were no inconsistencies between the plaintiff's reported symptoms, complaints and restrictions, and her findings on clinical examination: Exhibit "1", pp 85 - 100; 83. On 3 August 2017, Dr Habib reassessed the plaintiff. On this occasion, in assessing the effects of the accident, he noted the accident resulted in "acute flexion / extension movements trauma to the neck and low back in the dual impact incident": Exhibit "B", p 186; 84. On 18 August 2017, at the request of the plaintiff's solicitor, Dr Habib prepared a commentary that was highly critical of the 27 July 2017 report of Dr Gibson. In Dr Habib's commentary, his earlier expressed opinions remained unchanged. Those comments, and the conflicts within those respective opinions, require analysis and if possible, reconciliation as to the basis of those differing views: Exhibit "B", pp 190 - 191; 85. In his last report, Dr Habib reiterated his previous diagnoses of musculo-ligamentous strains. He noted the neck strain produced intermittent pain, and the low back pain was the result of a chronic strain, with minor radiation to the buttocks. He also added there were minor but appreciable bilateral shoulder movement restrictions due to referred neck symptoms. He stated that the plaintiff's condition was substantially caused by the subject accident, and identified some work restrictions: Exhibit "B", pp 186 - 189;

[21]

Dispute and approach to analysis

The matters in dispute concerned the divergence of opinions of Professor Myers, Dr Gibson, and Dr Habib relating to the nature, extent, and the ongoing effects of the injuries sustained by the plaintiff.
Whilst Professor Myers and Dr Habib, and for that matter, Dr Bui and the MAS assessor, Dr Bodel, accepted that the plaintiff had suffered musculo-ligamentous strains to her neck and back, Dr Gibson did not accept that the plaintiff's back complaints were accident-related.
This dispute arises in the context that neither party called oral evidence from any of these medical practitioners, and none of those practitioners were required for cross-examination for the purpose of explaining or further elaborating upon the factual basis and reasons for their respective opinions.
In these circumstances, the required analysis must "grapple" and "wrestle" with the opposing opinions in order to seek to reconcile them for the purpose of arriving at relevant findings on such matters.
That task has been rendered more difficult and burdensome because the parties did not avail themselves of the readily available procedure for a meeting of experts for the purpose of preparing a joint report, and for the taking of their evidence concurrently. That process would have enabled the evidence of the respective experts to be tested, and this would also have provided each one of them an opportunity to comment on any matters of contention within the opinions expressed by their colleagues: UCPR r 31.35.
In those circumstances, where, by reason of the operation of UCPR r 31.30 in the District Court, the respective expert opinions remain in a state of conflict, such conflict stands to be resolved according to whether or not the onus of proof on a particular factual question has been discharged by the party relying upon a particular opinion: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
In cases such as this, where differing opinions are expressed by the experts, the resolution of such differences also stands to be resolved by examining the assumptions which underpin those opinions, to determine whether they are sufficiently like the found facts: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39].
At the outset of this review, it is convenient to note the effect of the plaintiff's evidence on relevant matters.

[23]

Assessment by Dr Bui, the treating general practitioner

The overall assessment and considered view of the plaintiff's injuries by Dr Bui was that she suffered a whiplash injury to the soft tissues of her neck and to her back with reactive anxiety, with the severity of the resultant complaints resulting from those injuries increasing over several months since the accident: Exhibit "B", pp 39 and 40. This was in the context where Dr Bui had seen the plaintiff on multiple occasions after the accident.
The defendant's attack on the suggestion of a causal connection between the accident and the onset of the plaintiff's low back problems was based on the respective histories as set out in the clinical notes and contemporaneous records.
On 5 March 2015, Dr Bui made his first note of the plaintiff's accident-related history in the following terms: "Reason for contact: Whiplash on MVA 7/2/15 slow down at intersection as car in front slow down, was hit by a car in the back, hit the car in the front body went forwards then back walk away front seat passenger, wore seatbelt Examination: rom normal with some discomfort ul, ll nad …" [Exhibit "B", pp 17 and 52] [Emphasis added in italics]
The abbreviations "ul" and "ll" were not explained, but I infer these abbreviations most probably relate to an examination of the upper and lower limbs, which revealed no abnormality. The reasons for examining the lower limbs were not stated. This may or may not have had anything to do with the plaintiff's back. Significantly, on this occasion, Dr Bui made no note of the particular site or sites of the plaintiff's whiplash injury. No mention was made of the neck or the back being affected. He only noted "Whiplash".
On 21 March 2015, the plaintiff had her second consultation with Dr Bui, and on that occasion he clearly noted the plaintiff had problems with her neck and with her back: Exhibit "B", pp 17 and 52.
The plaintiff initially had contact with Dr Foo on 9 February 2015 and 12 February 2015: Exhibit "B", pp 6 and 152. On those occasions, a certificate was issued for school and a referral was made for the plaintiff to have a CT scan of the neck which occurred but there were no relevant entries made in the clinical notes.
The suggestion that emerges from this consideration of the clinical notes is that they do not comprise a complete record or transcript of the plaintiff's initial contact with that general practitioner after the accident. This was not a matter that was explored at the hearing. Certainly, in the initial contacts that took place in February 2015, the initial focus was on neck problems. However, this does not exclude the possibility that the plaintiff also hurt her back in the accident, which was the overall assessment by Dr Bui, as cited at paragraph [68] above.

[24]

Dr Sheikh Habib - reports dated 21 June and 23 August 2016

On 4 August 2016, Dr Habib carried out a comprehensive assessment of the plaintiff with the benefit of the clinical records and the report of Professor Myers dated 14 December 2015: Exhibit "B", pp 155 - 160.
After considering the reported circumstances of the accident, Dr Habib noted the plaintiff had been "badly shaken" and her principal concern at the time was to look after her 3 year old nephew. He also noted the history that the plaintiff "had developed low back pain fairly soon after the onset of neck pain radiating to the right trapezius area": Exhibit "B", pp 155 - 156.
Following Dr Habib's completion of his examination of the plaintiff and his consideration of the imaging reports, he also noted a further aspect of the history, namely that "It was a few days down the track that she also had low back pain which she tried to deal with by taking analgesics that she had been prescribed by the doctor she saw": Exhibit "B", p 157. On my reading of the evidence, it appears that in making those cited comments, Dr Habib was referring to Dr Foo.
Dr Habib was of the opinion that the musculo-ligamentous strains the plaintiff had experienced to her neck and to her lower back, thus aggravating mild facet joint arthropathies, were accident-related: Exhibit "B", pp 157 - 158.
In my view, Dr Habib's initial report provided a properly reasoned basis for those conclusions in that he identified the absence of a past history of low back pain and this led him to conclude the accident had been the substantial contributor to the plaintiff's back problems: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).
A fair reading of Dr Habib's report shows that he considered the plaintiff's underlying facet joint arthropathies had become aggravated by the musculo-ligamentous strain she had sustained to her back from the accident. That reasoning satisfies the requirements of the Expert Witness Code comprising UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). Subsequently, on 18 August 2017, Dr Habib reiterated those cited opinions: Exhibit "B", pp 184 - 189. Dr Habib was not required for cross-examination on those opinions, and therefore those opinions remained unchallenged.
On 18 August 2017, following an updated assessment of the plaintiff on 3 August 2017, in an updated commentary, Dr Habib considered that the persistence of the plaintiff's lower back problems indicated a chronic musculo-ligamentous strain with possible disco-vertebral and facet joint arthropathies: Exhibit "B", pp 190 - 191.
In this context it is not necessary to here undertake a review of Dr Habib's criticisms of the report of Dr Gibson (Exhibit "B", pp 190 - 191), which must be examined on its content.
Before analysing the opinions of Professor Myers and Dr Gibson, it is convenient to start the analysis with the MAS certificate of Dr Bodel.

[25]

Dr James Bodel - MAS certificate dated 16 October 2016

The report of Dr Bodel, dated 16 October 2016, being a MAS certificate, was not an expert medical report as such, because it was not the subject of the requirements of the Expert Witness Code: UCPR Sch 7 cl 5(1)(c). As a MAS assessor, Dr Bodel was not compellable to give evidence in these proceedings.
Nevertheless, Dr Bodel's certificate must be considered subject to questions of the weight to be attached to it, given his reasoning. That said, there is nothing that emerges from within the certificate of Dr Bodel that gives rise to any concerns over its content or his conclusion.
Dr Bodel considered that the subject accident had caused the plaintiff to sustain soft tissue injuries to her neck, her thoracic and lumbar spines, and to both shoulders: Exhibit "1", pp 102 and 108. That view was open to him on the evidence he had before him.
In arriving at that conclusion, Dr Bodel considered the plaintiff's history of initial onset of neck pain and a later onset of pain in the lower back, which has led to ongoing symptoms in the neck, radiating to both shoulders, and ongoing symptoms in the lower back: Exhibit "1", p 104. He examined those areas in light of these symptoms (Exhibit "1", p 105) and observed that the plaintiff has a mechanical backache (Exhibit "1", p 106), and that the symptoms with which she presented were quite genuine and were related to the subject motor vehicle accident.
Although Dr Bodel's certificate was not a medical report as such, as explained at paragraph [82] above, it nevertheless had the required hallmarks of a medical opinion that complied with the rules because it was appropriately reasoned: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c). The absence from Dr Bodel's certificate of a statement of compliance with the expert witness code only arises because a MAS certificate does not require such a statement. Nevertheless, in my view, Dr Bodel's certificate provides a useful point of comparison for the other opinions that were tendered and relied upon in this case.

[26]

Professor Paul Myers - report dated 14 December 2015

In considering the opinion of Professor Myers, dated 14 December 2015, it is significant to note that it was based on an assessment he made of the plaintiff on 11 December 2015, which was 10 months after the plaintiff's injury. In that evaluation, he did not suggest that the plaintiff had not injured her back in the subject accident. The aspects of his opinion that require evaluation are as follows: 1. He thought the plaintiff had some mild soft tissue injuries to the cervical and lumbar spine which had "settled" by the time he examined her: Exhibit "1", p 79; 2. He thought the plaintiff's demonstrated shoulder movements were "not medically plausible", and that her complaint of "the limitations are very mixed and cannot be sustained on any medical reasoning": Exhibit "1", p 80; 3. He thought that the plaintiff "may have been sore for a day or two after the motor vehicle accident but no longer": Exhibit "1", p 81; 4. He thought the plaintiff "may have had mild soft tissue injuries to the cervical and lumbar spines" but he saw "no evidence of any shoulder injury caused by the subject MVA or secondary to it": Exhibit "1", p 82.
In considering those opinions, for the reasons that follow, I have concluded that very little weight should be given to those opinions by Professor Myers.
First, the opinion of Professor Myers was anchored to the circumstances of his examination of the plaintiff on 11 December 2015, and is therefore of little assistance to determining the nature and cause of the plaintiff's present problems, as she described in her evidence.
Secondly, insofar as Professor Myers expressed diagnostic conclusions as to the effects of the accident on the plaintiff, in my view, his opinions are afflicted by the following matters.
The opinions of Professor Myers as extracted at sub-paragraphs (1) to (4) of paragraph [87] above are not reasoned according to the standard required by UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c) in that he has not given adequate reasons for each opinion he has expressed.
In that regard, Professor Myers did not state his reasons for his view that the plaintiff may have been sore on a day or two after the accident, but not for longer, or why the plaintiff's shoulder movements were not medically plausible, or which of the plaintiff's limitations were "very mixed", and why they could not be sustained on any medical reasoning. As an expert, it was incumbent upon him to give such reasoned explanations for those views. Accordingly, because such reasons were absent, I consider his cited opinions to be of little if any assistance to determining the damages issues calling for decision in this case.
Furthermore, as explained below, significant elements of confusion arise from the report of Professor Myers. Although, consistent with the certificate of Dr Bodel and Dr Habib, Professor Myers accepted the plaintiff had sustained soft tissue strains to both her cervical and her lumbar spines (Exhibit "1", p 79), or that the plaintiff "may have had" such injuries in a mild form (Exhibit "1", p 82), he did not explain what he meant by his stated view that these problems had "settled" when he saw the plaintiff.
Professor Myers' opinion in that respect was ambiguous in that "settled" may mean the plaintiff's symptoms may have stabilised or had plateaued down to a lesser level of effect, or alternatively, they may have completely resolved. It is unclear as to which meaning he intended to convey. It is possible Professor Myers may have meant to convey the former interpretation, which is consistent with his comments that there were limitations of movement in the plaintiff's thoracic and lumbar spines: Exhibit "1", pp 75 and 80. However, the ambiguity in his report remains unexplained.
Professor Myers' opinions on the likely duration of the plaintiff's symptoms, were without explanation, and were in part, internally inconsistent. This is evident because, on the same page of his report (Exhibit "1", p 81), at one point he said the plaintiff may have been sore as a result of the subject motor vehicle accident for a day or so, but no longer. Then, on the same page, he said she may have been a little sore for a week or so. The internal variation in that range of opinions, which gives rise to an inconsistency, remained unexplained.
Furthermore, in rejecting the plaintiff's complaints of ongoing symptoms, Professor Myers seems to have placed little weight on the plaintiff's history, or the content of the contemporaneous notes and diagnostic comments of Dr Bui, as summarised within the chronological review set out at paragraph [47] above.
In discounting the plaintiff's current history of complaints, Professor Myers said, somewhat obscurely: "She had no matters with regard to her current complaints of the lower back, middle of the back, and the neck and the shoulders": Exhibit "1", p 73. This statement was at odds with the plaintiff's presentation because those were the very matters of which the plaintiff was complaining. It is unclear what he meant by the expression: "She had no matters" with regard to those complaints.
Professor Myers' commentary did not seek to challenge the plaintiff's veracity as a historian. If by his choice of words he was implying that the absence of medical reasons for some of her complaints was because of the influence of psychological factors, he did not say so. It was not suggested to the plaintiff that she had given an untruthful account, either to Professor Myers, or in her evidence.
Professor Myers did not explain why the contemporaneous complaints the plaintiff had made over time to her general practitioner, and which extended by days, weeks and months beyond his view of the likely duration of the effects of the plaintiff's injury, should be disregarded in favour of his own expressed view. His analysis was therefore incomplete, and without accompanying explanatory reasons in a material respect.
Furthermore, Professor Myers' reasons for dismissing the plaintiff's shoulder complaints are inconsistent with the certificate of Dr Bodel and the opinions of Dr Habib and Dr Bui.
Professor Myers' dismissal of the possibility of the plaintiff having "secondary" shoulder problems (at Exhibit "1", p 82) did not discuss the uncontradicted and otherwise plausible theory outlined by Dr Habib, namely, that the plaintiff had referred shoulder problems. Professor Myers simply stated he had "no evidence" of a shoulder injury. In that regard, he had not engaged with the plaintiff's complaints of shoulder problems other than to dismiss the plausibility of those complaints without supporting reasons, and in doing so, he has not engaged with the possible explanation of referred problems, as was adequately explained by Dr Habib.

[27]

Dr Margaret Gibson - report dated 27 July 2017

I now turn to an evaluation of the opinions expressed by Dr Gibson in her report dated 27 July 2017: Exhibit "1", pp 85 - 100.
Dr Gibson discounted a relationship between the plaintiff's accident and the onset of her back complaints. She appears to have done so on two bases, first, the apparent time interval between the accident and the first record of back pain by Dr Bui on 5 March 2015 (which Dr Gibson described as an inconsistency at Exhibit "1", p 91) and the absence of any complaint of back pain to the attending ambulance officers, and to the staff at the emergency department of Liverpool Hospital (also at Exhibit "1", p 91).
At this point it is of some significance to note Dr Gibson has made an error in assessing that Dr Bui's first record of back pain was in his note dated 5 March 2015. In fact, on 5 March 2015, Dr Bui simply made the generic and non-specific note "Whiplash". His first specific note of neck and back problems was made on 21 March 2015: Exhibit "B", pp 17 and 52. It appears that Dr Gibson has misread Dr Bui's notes.
In my view, quite apart from the error identified in the preceding paragraph, Dr Gibson appears to have carried out an incomplete analysis of the circumstances of the onset of the plaintiff's complaints of back pain. I consider this to be so because when she prepared her opinion she had before her the history contained in the plaintiff's personal injury claim form (at Exhibit "1", p 91) that the plaintiff experienced the onset of back soreness "a couple of days after the accident".
Dr Gibson appears to have overlooked that relevant item of history and has instead focussed on Dr Bui's note of 21 March 2015 (erroneously referred to as 5 March 2015) as the starting point for the plaintiff's complaints of accident-related back problems.
That approach by Dr Gibson, and the unavailability to her of the plaintiff's history of back pain occurring on the evening the accident occurred, and of the pain worsening the next day, has led to her analysis being distorted in the sense of not being based on the correct factual foundations or based on assumptions that were sufficiently like the plaintiff's factual evidence that I have accepted: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
In my view, Dr Gibson's analysis also appears incomplete because, on the face of her report, she made no mention of having questioned the plaintiff about the delayed onset of back pain by comparing the history she obtained from the plaintiff, and the records she cited, to seek a reconciliation.
Dr Gibson appears not to have sought to reconcile the plaintiff's reported symptoms of low back pain (which she recorded at Exhibit "1", p 87) in order to seek to clarify as to when the plaintiff first noticed those back pains to have started. That approach appears to have limited the scope of the history she obtained and relied upon for the purpose of formulating her opinion.
Dr Gibson has discounted a connection between the subject accident and the plaintiff's complaint of back pain by describing it as less likely (Exhibit "1", p 94), although she entertained the possibility that if the plaintiff was "accepted", there might be such a connection: Exhibit "1", pp 96 and 97. Since Dr Gibson was not called or not required to give oral evidence, unfortunately, those matters were not explored.

[28]

Analysis and conclusions from the medical evidence

I must do my best on the available evidence to "engage with, or grapple or wrestle" with the issue of whether the plaintiff in fact suffered a back injury in the subject accident, and whether her continuing back symptoms are accident-related: Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73, at [53]; Coote v Kelly [2013] NSWCA 357, at [39] following Waterways Authority v Fitzgibbon [2005] HCA 57, at [129] - [130].
In undertaking that task, I first examined the plaintiff's unchallenged and uncontradicted evidence concerning the onset of back pain on the evening after the accident, which worsened the next day and has not gone away, which on its face seemed plausible and not inherently improbable.
In that consideration, I have not overlooked the fact that the first mention of the plaintiff's history of back pain appears in Dr Bui's notes of 21 March 2015, a little over a month after the accident. Since the Dr Bui was not cross-examined on his expressed view that the plaintiff's back pain was accident-related, I do not consider the delay in question, to be of significance, especially in light of the plaintiff's evidence as cited above.
It must be recognised that the analysis of the medical evidence in this case is rendered more difficult by the fact that Dr Foo's input in relation to the plaintiff's contemporaneous complaints remains absent from the analysis. Whilst in some circumstances that might be a matter of some significance, in this case I consider that gap in the historical analysis has been adequately filled by the plaintiff's own and unchallenged factual account in which she described her experience of the onset of back symptoms on the evening after the accident occurred, and that those symptoms then worsened.
In light of my acceptance of the plaintiff as a credible witness on those matters, I then looked to the independent MAS certificate by Dr Bodel, which accepted the causal connection between the accident and the onset of the plaintiff's complaints, as did the more contemporaneous assessments of Dr Bui (at Exhibit "B", pp 38 - 41) and the opinion of Dr Habib: Exhibit "B", pp 155 - 160 and pp 184 - 191. Dr Habib's opinions were not the subject of challenge by cross-examination. Furthermore, Professor Myers accepted as plausible that the plaintiff might have suffered musculo-ligamentous strains, including to her lower back in light of her symptoms: Exhibit "1", pp 78 and 82.
The above analysis leads me to the conclusion that I should prefer the opinions of Dr Habib and the causation conclusions stated within the certificate of Dr Bodel when compared to the opinions of Professor Myers as to the duration of the plaintiff's complaints, and that I should reject the opinion of Dr Gibson insofar as she does not accept that the plaintiff suffered an injury to her lumbar spine. I consider that Dr Gibson's opinion on the issue of the cause of the plaintiff's back complaints should be rejected as it is not based on the correct factual foundations, as observed at paragraph [106] above.
The above analysis also reveals that the preponderance of the medical evidence favours and accepts the connection between the plaintiff's back symptoms and the subject accident. Accordingly, I do not accept the contrary opinion of Dr Gibson on that issue, or the opinions of Professor Myers as to the likely duration of the plaintiff's symptoms.
I therefore find that in the subject collisions, the plaintiff sustained musculo-ligamentous injuries to her neck, her shoulders and to her lower back.

[29]

Disabilities that remain

Given my acceptance of the plaintiff's credit as a witness, and given my acceptance of her evidence generally, in the absence of significant challenge on matters of history, I propose to consider the histories summarised by the various reporting doctors, as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995: T19.1 - T19.3.
Similarly, and consistent with that approach, in addition to the plaintiff's oral evidence, I have drawn upon the content of the histories within the tendered medical reports to identify relevant aspects of the plaintiff's history, and her reported disabilities as follows.
The pain in the left side of the plaintiff's neck, which is present most of the time, fluctuates in its intensity, and it extends to her left shoulder: Exhibit "1", p 87. The plaintiff also occasionally experiences right shoulder pain: Exhibit "1", p 92.
The plaintiff's walking and standing tolerance is about 15 - 20 minutes before she experiences pain in the lower back: Exhibit "1", p 87. She found that at times, she was unable to carry her school bag: Exhibit "1", p 118. Her residual low back ache is likely to be the subject of periodic exacerbations: Exhibit "B", p 158.
The plaintiff's ongoing pain and discomfort in the areas described has affected and still affects her sleep, and it had a deleterious impact on her schooling: Exhibit "1", p 118. She missed many days of school and the need to attend accident-related consultations on those days is not a coincidence.
The aftermath of the accident has also had a significant emotional impact upon the plaintiff. Her inability to play sports, and her significant weight gain as a result of her reduced levels of activity has frustrated her and she has become self-conscious when shopping for clothes.
The plaintiff does not find as much enjoyment in life, her moods are changeable, and she experiences anger concerning these matters. At times she wants to remain in bed all day, and she is nervous and apprehensive about her future: Exhibit "1", p 118. Whereas before the accident she was overweight, she has now become morbidly obese: Exhibit "B", pp 39, 40, 49, 51; Exhibit "1", pp 7, 91.
She has been assessed as being mildly depressed in her mood and experiences distress and frustration due to the accident-related constraints on her lifestyle: Exhibit "1", p 119. These matters have led to a persistently depressed mood state, and a degree of anxiety when engaging with people and when travelling. There is no dispute that she has a chronic adjustment disorder, with mixed anxiety and depressed mood: Exhibit "1", p 120. This has resulted in a permanent impairment that is unlikely to remit or change in the short term without treatment: Exhibit "1", p 121. She has expressed difficulties with motivation and has had some withdrawal issues: Exhibit "1", p 122.
In August 2016, Dr Habib took a history in which he noted that the plaintiff's low back pain developed fairly soon after the onset of neck pain radiating to the right trapezius area. He noted the described neck and radiated pain continued, as did the low back pain, which was more or less constant, and increased on sitting or standing for prolonged periods, with radiation to the buttocks: Exhibit "B", p 156.
Dr Habib noted the radiological findings of disc bulging and commented that post-injured persons do not have disc injuries / protrusions, but musculo-ligamentous and small joint arthropathies, which he considered to be so in the plaintiff's case. He considered that by August 2016, the intermittent symptoms from the neck strain had "mostly resolved" but the back strain was "chronic": Exhibit "B", p 158. The back problem was described by Dr Bodel as "mechanical backache": Exhibit "1", p 106. Dr Habib considered that the amount of the plaintiff's extra weight gain was likely to lead to a further deterioration in the condition of her low back: Exhibit "B", p 158.
In August 2017, when Dr Habib re-assessed the plaintiff, he noted that her neck had become more symptomatic, with pain radiating to both shoulders, which made it difficult for the plaintiff to lay on her sides in bed. Dr Habib also noted the history of ongoing low back pain radiating to the buttocks, with some postero-lateral pain in the thoracic spine: Exhibit "B", p 185. He considered the plaintiff's mild restriction of shoulder movements which resulted from the neck symptoms, to be appreciable given the plaintiff's young age: Exhibit "B", p 186.
Over the course of time, the plaintiff's neck and back pains have not settled down: T13.17 - T13.35; T14.31 - T14.36. This has been contrary to the expectation identified by Professor Myers in December 2015: Exhibit "1", p 79. Similarly, the plaintiff still has referred shoulder problems.
The plaintiff also experiences low back pain when walking or sitting down for prolonged periods, and unlike her previous active involvement in a variety of sporting pursuits, she can no longer run: T14.35 - T14.50. The plaintiff's pre-accident sporting pursuits, including shot put, discus and javelin, are now beyond her physical capacity: T15.34 - T15.39. Due to a reduced ability for exercise (T16.6) she has gained a significant amount of weight, from 99kgs up to 119kgs: T15.50. The records show she was already 107kgs three months after her accident, as identified at sub-paragraph [47(21)] above.
When the plaintiff undertakes activity that involves her raising her neck up and down this causes stiffness and pain: T16.23. This would have affected her in the classroom when looking at a blackboard from the seated position: Exhibit "1", p 73. She needed to take frequent breaks from the classroom setting: T16.27. She is no longer as active as she used to be: T23.22 - T23.37. Bending is difficult for her: T46.24.
In the plaintiff's oral evidence, she said she feels insecure and feels stress: T23.30 - T31.37. The unchallenged medical opinion is that the plaintiff has a chronic adjustment disorder with mixed anxiety and depressed mood, which is not expected to change substantially in the near future: Exhibit "1", p 121.
The plaintiff feels a sense of frustration about her weight gain due to her lack of exercise and motivation, which is also attributable to the above psychiatric diagnoses. These problems also affect the plaintiff's participation in social and recreational activities which was described as withdrawal: Exhibit "1", p 122.
Dr Roberts identified a difficulty the plaintiff experiences concerning a limitation in her ability to sustain concentration for academic work such as sitting through 80 minute periods of tuition at school: Exhibit "1", p 122. This has had a significant disruptive effect on her ability to take advantage of past educational opportunities whilst she was at school, and as those problems continue, this poses a significant challenge for her ambition of pursuing tertiary studies, and for her to sustain work.

[31]

Consideration of school records and evidence of Mrs French

The plaintiff tendered a bundle comprising copies of parts of the plaintiff's high school records from the three different high schools that she attended. These records showed that, consistent with her history of truanting, the plaintiff had a significant number of pre-accident absences from school in 2012, 2013, 2014 and 2015: Exhibit "C".
The defendant tendered a bundle comprising copies of parts of the plaintiff's school records from 2004, when she was enrolled in kindergarten class, through to 2016, when she was expelled from school, which was stated to have been due to her poor attendance rate and because of non-completion of assignments and assessments for her HSC course: Exhibit "2".
In 2012, when she was in Year 8, the plaintiff had 35 whole day and 15 partial day absences from Liverpool High School. In 2013, when she was in Year 9, she had 8 whole day and 21 partial day absences from Leumeah High School. In 2014, when she was in Year 10, she had 34 whole day and 28 partial day absences from St John's Park High School.
The defendant placed some emphasis upon the plaintiff's poor pre and post-accident attendance and her performance record at school, and in submissions asserted that the records in question show the continuation of a pattern of absences that pre-dated the accident: T43.30. The implication was that this cast doubt upon the likelihood of her completing her schooling, pursuing tertiary studies which had some impact on her economic future.
In my assessment, for the reasons that follow, that submission by the defendant was over-simplistic in its analysis of the plaintiff's pre and post-accident history in light of the many factors referred to in the evidence which influenced the plaintiff's course of progress, or non-progress, at school.
The plaintiff was said to have had a learning difficulty which, was recognised by school authorities at an early stage in November 2005 when the plaintiff was in primary school and aged 7 years, when it was considered that she may have a learning difficulty or a language disorder: Exhibit "2", p 8; T86.31 - T87.20. This apparently was not followed up, or repeated, or later confirmed, so that Mrs French an experienced educationalist familiar with the plaintiff in her later high school years, considered that one should pay little attention to that matter: T87.25 - T87.27.
Any consideration of a possible language disorder evident in the plaintiff at the age of 7 years must be considered in light of the fact that for a time, the plaintiff was being taught English as her second language.
In my view, it is artificial to simply identify bland non-attendance data across the spectrum of the pre and post-accident period without also having regard to some other specific factors that were operative in the plaintiff's life and which could have influenced such non-attendances.
Foremost amongst those specific factors was the fact that in 2012, if not beforehand (T32.2), the plaintiff was in the "wrong crowd" at school, and this was an obvious negative factor of influence, which also involved the by-products of bullying. By the time the plaintiff negotiated her enrolment at St John's Park High School with Mrs French, which was before her accident, she had determined to, and did, make a change in her behaviour, as was noted by Mrs French, who was well placed to give that evidence: T80.36 - T80.46. I place significant weight on the evidence of Mrs French's pre-accident insight and assessment of the plaintiff: T77.16 - T77.24, T79.22 - T79.26.
Before the accident, the plaintiff's educational opportunities had been hampered by a number of matters including family issues: T77.50. These included factors such as the relatively unsupported home environment due to the fact that both of her parents worked long hours, and it appears they were not in a position to provide her with educational guidance; she arrived at St John's Park High School mid-year in 2014, and was therefore already behind in her studies, and it appears that, to the surprise of Mrs French, the expected home / school liaison follow-up intervention as identified by Mrs French, had not occurred in the plaintiff's case: T83.1. Accordingly, the plaintiff was at some considerable educational disadvantage before the subject accident.
Having considered the impact the accident has had on the plaintiff physically and psychologically, there is little room for doubt that the accident had a deleterious impact on the plaintiff's ability to otherwise avail herself of the educational opportunities on offer at St John's Park High School. At the time of the plaintiff's arrival, Mrs French was prepared to take the plaintiff on and give her a chance. Multiple factors were influential on her progress from that time: 1. Whatever the plaintiff's pre-accident school attendance issues were, post-accident, her attendance at school, and her capacity to persevere with class attendance in the presence of discomfort, became adversely affected because the plaintiff had reduced sitting tolerance and concentration issues; 2. The stability of the plaintiff's post-accident living arrangements changed after her mother's injury, and the inability of her parents to cope with the changed circumstances of the family; 3. After the accident, the plaintiff became depressed, and was at times reluctant to get out of bed. This was in circumstances where her family situation had changed, her mother was also injured, and it appears that no-one was in a position to assist the plaintiff to deal with such issues. This was in circumstances where the school had resources to call upon, such as a support or liaison officer, to help a child with such difficulties by going to the home, and getting the child to school: T83.45 - T83.50. This apparently did not occur in the plaintiff's situation; 4. The plaintiff was obviously a high achiever in her sporting activities. It is therefore unsurprising that she would have become depressed because she could no longer remain active and proficient in those pursuits. This was also a factor that has led to her gaining a significant amount of weight, and having motivation issues, which has also had a negative impact upon her, as has been explained by Dr Roberts: Exhibit "1", p 122. This would obviously have a flow-on effect on her schooling; 5. In the post-accident period, Mrs French, who had plainly been supportive of the plaintiff, had left the school, and the plaintiff would have then found herself in an environment where there appeared to be less room for further allowances to be made for her situation; 6. Unfortunately, when the new principal at the school, Mrs Effie Niarchos, found it necessary to correspond with the plaintiff's parents, she had erroneously directed her correspondence, not to the plaintiff's mother, but to another named person. This is evident from the letter dated 9 September 2016 that Mrs Niarchos, wrote purportedly to the plaintiff's mother, informing her that a decision had been made to expel the plaintiff ("your daughter") from school on the ground of unsatisfactory participation: Exhibit "2", p 90. On its face, it is plain that the letter in question was addressed to someone other than the plaintiff's mother, who in any event, had little command of the English language; 7. Therefore, any chance of the school enlisting parental assistance in mitigating the plaintiff's post-accident declining educational progress, became somewhat diminished. It appears that by then, the plaintiff had fallen between the metaphorical cracks in the system, especially where no school liaison support or follow-up seems to have occurred.
Overarching all of those matters was the plaintiff's ongoing accident-related experience of symptoms of pain, discomfort, restriction of movement, and restriction of activity, which remained an entrenched problem, and which led to her depression and to her significant weight gain.
In contrast to the defendant's simplistic submission as to the interpretation to be placed on the plaintiff's school absences, I consider that it is necessary to consider the broader historical context of the plaintiff's schooling, as follows.
First, at about the age of 7 years, the plaintiff had apparently been diagnosed with a possible learning difficulty. It appears from the evidence of Mrs French, who had previous access to the plaintiff's school file (T86.8 - T87.15), that issue was not followed up by further testing or confirmation for impact at a later time in the plaintiff's schooling.
Secondly, from an early stage, the plaintiffs' history of schooling was marred by the effects of bullying and being in the "wrong crowd": T27, T28, T32. When the plaintiff's brothers taught her to fight back, this landed her in trouble with school authorities, and this might explain some of the teacher comments recorded in various parts of Exhibit "C" and Exhibit "2".
Thirdly, for a time, the plaintiff received tuition in English as a second language, where Samoan was the principal language used at home: T26.9.
Fourthly, one of the plaintiff's brothers was the apparent source of assistance to the parents with regard to reading communications from schools: T65.1 - T65.26. The plaintiff's mother remained unaware of any school correspondence: T65.16. This is despite the contents of Exhibit "C" and Exhibit "2". Therefore, the scope for positive or remedial parental intervention to occur in the plaintiff's situation was somewhat reduced.
Fifthly, the perception of the plaintiff's mother (perhaps based on an unawareness of the plaintiff's record of attendances at school) was that the accident had put an end to the prospect of the plaintiff successfully completing Year 12 because after the accident, she could not fulfil the requirements for the HSC: T66.40 - T66.45. Whilst that was a simplified view, I make no adverse findings on the content of the evidence of Mrs Vasa on that subject because, understandably, the topic remained unexplored when she became extremely distressed in talking about it whilst being questioned: T66.18 - T66.35.
Sixthly, whilst there is some evidence that when at school the plaintiff lived with an aunt for a while (T59.12) and the plaintiff's mother went to some meetings at school (T58.41), the state of the evidence makes it difficult to usefully analyse the relevant chronology of those events.
I considered that the plaintiff's own unchallenged evidence on matters associated with her schooling was informative.
Before her injuries, the plaintiff was active in sports, both at school and on weekends. She was in volleyball, basketball, rugby and athletic teams: T10.1 - T10.24. The general teacher commentaries in Exhibit "C" tend to confirm that view.
After the accident, the plaintiff found that she was taking days off school because she "just could not get out of bed": T15.27. This seems to be consistent with the state of depression referred to by Dr Roberts. The plaintiff said that following the accident she was no longer allowed to participate in school sporting activities: T15.32. She also said that the accident had affected her studies "big time": T16.12.
The plaintiff's evidence that she barely attended school because of her injuries (T16.33) was not significantly challenged. When she was at school, she found she could not stay in the classroom because she needed to go out and walk, and move about. She missed days at school and could not do or hand in her assignments on time: T16.10 - T16.20. This ultimately led to her expulsion from school: T17.50 - T18.7; T45.14. This was because she was behind in her work due to absences, and it was hard for her to catch up: T43.10 - T43.17. When these matters are taken into account, it is plain that the accident has had a substantial adverse effect on the plaintiff's educational opportunities.
Mrs French's evidence provided some insights on a number of relevant matters. The plaintiff's school file indicated to Mrs French that whilst in primary school, the assessment was made that the plaintiff may have had some kind of learning difficulty. Mrs French cited an entry from the plaintiff's school file which followed testing for learning difficulties, as follows: "These are her results. Her verbal scale score was in the intellectually mild range. Her performance scale score was in the low average range. Her full scale score could not be calculated because there was a significant difference between Hazel's results on the verbal and the performance scale scores." [T87.1 - T87.5] That evidence makes it difficult to draw conclusions on the plaintiff's abilities as a teenager and as an adult.
It is also relevant to observe that those test results may or may not have been influenced by the plaintiff's early language difficulties when she was learning English as a second language.
Mrs French added that although the tests indicated a possible language disorder and difficulty following verbal instructions, she would not be paying attention to that matter: T87.27. That was not surprising, this being a test that was done 12 years ago, when the plaintiff was aged 7 years.
Mrs French agreed with the impression that the plaintiff was articulate and intelligent, and able to communicate quite well, including fluently, coherently, and responsively: T87.46 - T88.29.
Mrs French drew upon her former role as the principal at St John's Park High School to state that the school served students of more than 60 cultural backgrounds, about 91 per cent of whom came from non-English speaking backgrounds, and generally very low socio-economic circumstances.
Mrs French confirmed that the plaintiff was highly regarded by staff and her peers, and was a willing participant in school activities, such as sport: T77.1 - T77.5. She added in cross-examination, that she recalled the plaintiff as a very bubbly happy person who got on well with other students, and with staff, and was always polite at school, and the common view was "a really good … a good kid": T79.26.
When Mrs French accepted the plaintiff at St John's Park High School the plaintiff had been quite frank about the earlier difficulties she had experienced at her previous schools, and was seeking a fresh start: T80.40 - T80.45.
Mrs French confirmed that the plaintiff joined St John's Park High School about half-way through 2014. She recalled the plaintiff as a very polite, happy and charming young woman: T77.15 - T77.24. Apart from the description "happy", this was consistent with the impression the plaintiff gave when giving her evidence: T77.28 - T77.35.
Whilst Mrs French confirmed that attendance at school had always been an issue for the plaintiff, she found it difficult to elaborate on that subject because it has been some time since she was at the school, and it has been over a year since she had seen the plaintiff, but she understood there were some family issues: T77.39 - T77.50.
Mrs French stated that notwithstanding the described positive aspects of the plaintiff's personality, her academic record and her attendance record, had, from her reading of the plaintiff's school file, "deteriorated over the past several years": T79.45 - T80.5. This period obviously referred to the post-accident period. This indicated that the defendant's undifferentiated approach to the matter of the plaintiff's pre and post-accident absences from school, was oversimplistic.
A matter of significance arising from the evidence of Mrs French was that, surprisingly, the plaintiff's school file did not contain any material relating to any interventions from a home / school liaison officer, as she would have expected: T83.30 - T83.34.
Of some relevance to the plaintiff's economic future, Mrs French gave the following evidence: "Q. Is it your experience that people with various kinds of disorders of learning develop either with or without assistance strategies to help them cope with that problem? A. Very often they do, very often they do and as time goes on, as experience - sometimes you'll find that there's a student that you just think is an ordinary kind of kid and they just fall into the right place, the right group of friends, the right group of teachers, the right group of subjects and all of a sudden they are one of your outstanding students, and the circumstance allows that to happen, it certainly does happen and it happens probably more often than you'd think." [T87.33 - T87.41] … "Q. Is it your experience as an educationalist of long standing that not withstanding the tertiary entrance requirements but there are alternative routes for students as they mature to enter tertiary studies for various courses? A. It's much more civilised these days there are as many pathways as your imagination allows, you know a student who doesn't have a high school certificate is not precluded for example from TAFE." [T89.49 - T90.4]
I consider the extracts from Mrs French's evidence, as cited above indicate that the defendant's position of reliance on the plaintiff's previous poor school attendance and results as a contra-indicator to tertiary studies, is overstated.
This is so particularly in light of the plaintiff's credible stated intention for a fresh start at a new school in 2014, which was marred by the accident, and which was adversely affected by the many subsequent absences from school due to the effects of the accident, both physical and psychological. Added to that mix of factors was the plaintiff's need to attend the very many medical and allied appointments the plaintiff had to attend in that school year, which I have already referred to at paragraph [47] above. I consider those matters had a very significant and deleterious effect on the plaintiff's progress at St John's Park High School.
Taking an overall view of the school records and the evidence of Mrs French, I do not consider the plaintiff's pre-accident position and prospects to be as bleak as the defendant seeks to maintain. Having regard to the positive comments by Mrs French about the plaintiff, her personality, and how she was regarded by teachers, together with the positive impressions gained from her evidence as outlined at paragraphs [166] to [170] above, I do not consider that the adverse matters emerging from the plaintiff's school history should be seen as being a millstone that should necessarily weigh negatively against her future study and employment prospects.
I now turn to the assessment of the plaintiff's entitlement to damages.

[35]

Plaintiff's most likely pre-accident circumstances

The plaintiff's claim for future economic loss is difficult to assess. Her age at the time of the accident, 16 years, and still a school student, precludes any reliable insight into any career path she might otherwise have followed but for the accident.
It can be inferred from the plaintiff's manner of giving evidence, that she has matured somewhat from her more troubled pre-accident times at school. I also infer from the plaintiff's evidence and from the evidence of Mrs French, that before the accident, when the plaintiff changed schools to St John's Park High School, she was well motivated to seek to improve her chances of completing her schooling in order to obtain her HSC and to pursue tertiary studies to enhance her prospects of being trained for skilled work of some kind.
In that latter regard, it was apparent from the evidence comprising the understanding and the experience of Mrs French as an educator, that in some circumstances, the HSC is not an essential pre-requisite for acceptance into tertiary studies if someone is well motivated to pursue studies: T90.2 - T90.12.
All that can be said with reasonable certainty is that, by the age of 18 years, the plaintiff would most likely have been in a position of either initially seeking unskilled work, or possibly delaying her entry into the workforce whilst pursuing tertiary studies, either with or without the HSC, and in the meantime, possibly working part-time in unskilled work to pay her way and to pay for her living expenses.
Any further analysis beyond those likely circumstances is beset with imponderables that render the question of the plaintiff's likely career path, and timeline for beginning the journey of her working life to be a somewhat speculative exercise.
This is the very kind of difficulty envisaged and discussed in the well-settled authorities on this point relating to the assessment of claims for future economic loss: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72].
Putting aside questions relating to the plaintiff's pre-accident educational progress, and the difficulties that those matters pose for making predictions as to her probable future work, it is plain that but for the accident, she would not have had physical disabilities or restrictions such as her post-accident disabilities impacting upon her ability to be employed in a manual or menial occupation in a range of activities. Examples of such work would be factory work, outdoor work of various kinds, or work that could draw upon her pre-accident strengths and interests with regard to her physical and sporting abilities.
Several factors are relevant to that evaluation. One is that the plaintiff might have been successful in being able to pursue tertiary studies that might have assisted her to obtain earnings at a higher level than if she just pursued more menial work. If that were so, the completion of tertiary studies would most likely have taken her several years, and in that time she would have been almost inevitably restricted to part-time work before entering into full-time work because of the time demands of such studies. Alternatively, assuming the plaintiff would have attempted to find work at age 18 years on leaving school, the initial avenues of work likely to be open to her would have been in unskilled positions, if not in the long term, then at least in the short term.
Given that the plaintiff's family members pursued gainful employment, it is most probable that she too would have sought to exercise an earning capacity were it not for the accident.

[36]

Post-accident circumstances

On either of the potential pathways referred to in paragraph [192] above, the plaintiff's post-accident neck, shoulder and back problems, the psychological sequelae of those problems, and the effects of her significant weight gain, would most probably have an adverse impact upon her ability to pursue a wide range of work activities.
The plaintiff's neck and shoulder restrictions currently continue to affect her and restrict her ability to work with her arms and shoulders. Her back problems will necessarily impact upon her ability to carry out a wide range of tasks that require unrestricted and pain free back movements, including sitting, walking and standing for prolonged periods. This will restrict her in a wide range of potential occupations. These are significant matters of disadvantage to a young adult entering into a labour market to compete with other job seekers who are able-bodied, and without the plaintiff's disabilities which I have outlined and reviewed at paragraphs [119] to [135] above.
Dr Habib's unchallenged opinion was that the plaintiff's employment should not involve heavy lifting or repetitive bending: Exhibit "B", p 187. This was also in the context of continuing low back pain if sitting longterm: Exhibit "B", p 157. Dr Habib's uncontradicted opinion was that since the plaintiff carries a considerable amount of extra weight since the accident, this is likely to lead to further deterioration of her back condition: Exhibit "B", p 158. These matters represent significant disadvantages to the plaintiff when seeking to obtain and sustain work. Dr Habib identified the motor vehicle accident as the substantial contributor to the plaintiff's problems: Exhibit "B", p 158.
In my view, in the case of the plaintiff, at age 18 years, where beforehand, she had no such restrictions or problems, now these problems and the psychological sequelae of these problems represent a significant restriction in her earning capacity that is more probably than not likely to cause her to suffer financial loss for a considerable period of time: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
At present, the timing of the plaintiff pursuing other courses or being available to enter the workforce to seek work is uncertain. She is presently marking time and waiting for this year to be over: T45.23 - T47.17. This is a circumstance that is obviously accident-related as it arises from the impact the accident had on her schooling, and it comes at the tail-end of her post-accident experiences, condition, and circumstances. Shortly before the hearing the plaintiff returned to live with her parents. Her parents are now divorced but live in the same house: T47.19 - T47.49.

[37]

Approach to assessment

This is not a case where an assessment of a percentage of probable earnings based on average weekly earnings can be selected for projection on the 5 per cent tables to identify an amount to compensate the plaintiff for her future loss of earning capacity. This is especially so in view of the plaintiff's age, her untested work experience or capacity, and the timing uncertainty as to when she should be considered to be in a position where, uninjured, she would have sought to exercise her earning capacity.
In these circumstances, I consider that the fairest and the most appropriate means by which to compensate the plaintiff for an obvious but difficult to assess loss of her earning capacity is to select an appropriate buffer sum: 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].
At the age of 18, the plaintiff has a remaining working life of 47 years. It must be accepted that not all of those years may have involved her working either on account of possibly non-continuous employment, or absence from the workforce for some periods to time, such as for child-rearing. Furthermore, when working, she would probably derive an uncertain rate of remuneration.
In this case, the plaintiff's young age and the described deleterious effects of her increased weight on her low back condition, as explained by Dr Habib, must be seen to be vicissitudes that operate adversely to the defendant in this case.
In identifying an appropriate sum for the assessment of this head of damage, it is recognised that a significant allowance is to be made for future treatment expenses, which will hopefully have, albeit delayed, beneficial effects, including on the plaintiff's management of her increased weight. Because of the nature of that problem, it would seem that such benefits will take some considerable time to have a favourable impact on alleviating her diminished earning capacity.
In the overall circumstances, I consider that the appropriate range for a buffer in this case is between $80,000 and $110,000, including a component for loss of employer funded superannuation.
On account of the factors I have reviewed in these reasons, I consider the buffer that should be assessed in this case should be at the upper end of that range. In coming to that view, I have not overlooked the need to allow for the deferment of the assessment of the loss to reflect a delayed entry into the workforce on account of the possibility the plaintiff might have pursued tertiary studies, during which time, if she had exercised any earning capacity, it would have been to a very limited extent.
On the state of the evidence, and in accordance with the authorities cited in paragraph [200] above, doing the best I can whilst being fair to the plaintiff and not unfair to the defendant, I assess the amount of the future economic loss buffer at $100,000, which rounded sum includes a commensurate allowance for loss of future superannuation benefits. I therefore assess the plaintiff's damages for future economic loss in the buffer amount of $100,000.

[38]

Future treatment expenses

On behalf of the plaintiff, it was submitted that on account of a need for her to have medical supervision, medications, consultation with specialists, assistance with pain management, a gym programme, a weight loss programme, hydrotherapy, physiotherapy and possible vocational assistance, these matters should be the subject of the award of a buffer amount of $25,000.
In contrast, the defendant submitted that the plaintiff's anticipated need for any future treatment would be adequately met by the award of a buffer amount of $1500.
It is therefore common ground that a buffer would be the most appropriate means by which to compensate the plaintiff for possible future treatment expenses. The question which remains is the appropriate amount of such a buffer.
Dr Bui identified the plaintiff as being a very obese person at the time of the accident: Exhibit "B", p 40. At that time, at age 16 years, the plaintiff was at 99 - 100kgs: T15.49 - T15.50. He expressed the opinion that with treatment in terms of simple analgesia, counselling, hydrotherapy, exercise, a gym programme, dietary management, physiotherapy, and chronic pain management and rehabilitation, the plaintiff should make a good recovery: Exhibit "B", pp 39 - 40.
By 5 April 2016, 14 months after the accident, the plaintiff's weight was noted to have increased to 110kgs: Exhibit "B", p 42. By 29 May 2016, her weight was noted to have increased to 116kgs, and her symptoms were increasing rather than decreasing: Exhibit "B", p 39. She now weighs 118 - 119kgs: T15.50.
The insurer's decision to decline to pay for some of the recommended treatments and investigations in light of a lack of improvement in the severity and duration of the plaintiff's symptoms, has already been described at paragraph [50] above.
At present, the plaintiff remains relatively inactive, and now weighing 119kgs, she is in need of treatment for what has been described in various parts of the medical evidence as being morbidly obese: Exhibit "B", pp 39, 40, 49, 51; Exhibit "1", pp 7, 91.
At the time of the accident, the plaintiff was not as obese as she is now, and at the time of the accident she was involved in a variety of active sports, as noted at paragraph [22] above. Since then, her weight gain has been influenced by her significantly lessened level of activity, her reduced motivation, and by her accident-related depression, which obviously influences those matters.
From the viewpoint of the assessment of damages, although the plaintiff was overweight at the time of the accident, the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406. The fact that the plaintiff was already obese before the accident does not absolve the defendant from liability to pay compensation for a reasonable and identified accident-related need for treatment to address her increased level of obesity, now described as morbid obesity, which is accident-related.
As noted at paragraphs [48] to [52] above, the fact that aspects of the treatment have been delayed due to the plaintiff's circumstances does not involve any failure on the plaintiff's part to mitigate her loss as the CTP insurer declined to pay for some treatment recommendations. Instead, that historical delay in the plaintiff obtaining the recommended treatment highlights the need for her to promptly pursue those reasonable and already delayed treatment recommendations now, with the objective of seeking to alleviate her condition.
In addition to the treatment recommendations of the plaintiff's general practitioner, as noted at paragraph [210] above, Dr Habib has identified the need for the plaintiff's management to include some steroid injections to the facet joints of the plaintiff's low back, and for an active exercise programme to be initially supervised by an exercise physiologist: Exhibit "B", p 158.
In December 2015, Professor Myers supported a need for the plaintiff to pursue self-directed core-strengthening exercises: Exhibit "1", p 80. In July 2017, Dr Gibson also supported a regime of analgesia and independent exercise. In view of the plaintiff's problem with motivation and depression. I consider that a self-directed exercise programme is not sufficient in her circumstances.
In the report of Dr Roberts, the tabulation of the plaintiff's functioning notes that the plaintiff's weight gain was due to a lack of exercise, and the associated decline in her functioning was due to her lack of motivation, these being reasonably attributed to the plaintiff's accident-related psychiatric state: Exhibit "1", p 122. In my view, those matters justify an allowance for the recommendations made by Dr Habib rather than a self-directed exercise programme.
Turning to the present, and looking back over the course of the plaintiff's post-accident condition, and given the plaintiff's identified psychological and motivational issues, I consider that an allowance for the cost of a supervised and structured exercise programme is something that would be reasonable in this case, even though the actual cost involved in the provision of such services has not been identified in evidence.
That difficulty does not preclude an assessment of damages in the form of a buffer amount to compensate the plaintiff for those established and uncontradicted needs.
In those circumstances, I consider that in this case, the suggested buffer allowance of $1500 represents insufficient and therefore inadequate compensation to reflect the plaintiff's likely future treatment needs.
At present the plaintiff continues to see Dr Bui, she takes Panadol Osteo and she uses Deep Heat. In the past she has benefitted from the use of a heated pool and from physiotherapy.
The plaintiff should have access to an exercise physiologist, a gym, and further specialist advice as recommended by Dr Habib, including a bone scan to identify the affected facet joints or intervertebral disc joints requiring guided steroid injections: Exhibit "B", p 158.
Dr Roberts noted the plaintiff's persistently depressed mood state and her anxiety when engaging with people and when travelling. He noted she had not been treated for her psychological conditions: Exhibit "B", p 167. The compelling inference is that the psychological matters outlined in his tabulation at Exhibit "B", pp 169 - 170, obviously require that the plaintiff obtain professional assistance at ameliorating the psychological effects of the accident on her.
The defendant pointed to the fact that the plaintiff's mother has been obtaining the plaintiff's medications at no cost to the plaintiff which, it was argued, made it unlikely the plaintiff would incur such costs in the future. In my view, the fact that the plaintiff's mother has been obtaining the plaintiff's medications without cost to the plaintiff is an irrelevant consideration when assessing the plaintiff's damages for future treatment expenses. It is the accident-related need that must be assessed for the purpose of making a reasonable allowance in the assessment of damages. Such past beneficence does not diminish the defendant's future liabilities: Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, at pp 362 - 363. The "gift" to the plaintiff of past medication without cost must be disregarded when assessing her need for damages for future treatment expenses: Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446, at [20]; an acceptance of the defendant's submission on this point would lead to an anomalous absurdity: Anthanasopoulos v Moseley [2001] NSWCA 266, at [57].
The evidence in this case does not include any specific costings for the treatment recommendations referred to in the preceding paragraphs. That difficulty does not mean there should be no compensation awarded for future treatment expenses, and in those circumstances, the appropriate means by which to allow for such matters is by way of the award of a buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72].
I consider that the difficulty referred to should be addressed by the award of a buffer sum for future treatment expenses. I consider the allowance of a buffer should include a sufficient sum to reflect that the treatments and the gym regime referred to will be more intensive in the next few years to seek to achieve the required benefit. It will obviously take the plaintiff some time to reach her pre-accident weight.
Doing the best I can to be fair to the plaintiff and not unfair to the defendant, I consider the proper sum to be awarded for future treatment expenses is the buffer amount of $9000. Accordingly, I therefore assess the plaintiff's damages for future treatment expenses in the buffer amount of $9000.

[39]

Future domestic assistance

On behalf of the plaintiff it was conceded that the evidence of the history of the provision of domestic assistance to her, indicates that her case does not meet the threshold for an award of damages for past domestic assistance: s 141B of the MAC Act; T2.13; T54.39.
However, the plaintiff makes a claim for the provision of paid future domestic assistance. That claim initially had two elements.
The first element involved the claim for an assessment of the value of 6 hours per week, which was said to be at the statutory rate, stated to be $180 per week, over 70 years (x 1034.3), undiscounted, which yielded the amount of $186,174.
The second element of the plaintiff's claim was for future paid domestic assistance on a paid commercial basis. It was submitted that this should be assessed at $279,369. That sum was said to be the projection of the commercial value of 6 hours of domestic assistance per week, at $45 per hour ($270 per week) at 5 per cent over 70 years (x 1034.3) undiscounted. That calculation yields the sum of $279,261, not $279,369.
The total of those initial claims amounted to $465,543. In my view, that sum is excessive and unsustainable on the evidence. In final submissions, on behalf of the plaintiff, that claim was reduced to a buffer amount of $50,000 to cover the plaintiff's need for domestic assistance over her remaining lifespan: MFI "8".
Whilst I consider the buffer approach to be the appropriate method by which to approach this head of damage. I consider that the revised submission of $50,000 to also be excessive in the circumstances.
The rationale advanced on behalf of the plaintiff to justify an award of damages for future domestic assistance is that before the accident the plaintiff was capable of performing heavy housework, and now she is not. It was submitted that when she moves to live in her own apartment she will need help with such tasks in circumstances where her family members will no longer be on hand to be able to assist her with such tasks.
In contrast the defendant submits that there is no justification on the evidence for any award of damages for future domestic assistance. The defendant's submission invoked and relied upon the decision in Miller v Galderisi [2009] NSWCA 353. It must be observed that decision is only relevant to the time during which the plaintiff continues to live with family members who provide her with ad hoc domestic assistance.
Dr Gibson considered the plaintiff had no requirement for domestic assistance: Exhibit "1", p97. Professor Myers saw no restriction in the plaintiff's activities of daily living including household activities beyond an initial short term: Exhibit "1", pp 80 - 81.
Although Dr Habib did not consider domestic assistance to be necessary, he did not provide reasons for that view and this needs to be reconciled with his view that the plaintiff has ongoing residual low back pain and is vulnerable to likely periodic exacerbation of symptoms: Exhibit "B", p 158.
In his report dated 14 December 2015, on the subject of the plaintiff's possible need for domestic assistance, Professor Myers said he could find no reason why the plaintiff's activities of daily living should be restricted: Exhibit "1", p 80. In giving that opinion, Professor Myers did not appear to have engaged with the plaintiff's history for the purpose of commenting on the plaintiff's specific complaints which he recorded as including that her neck hurts to move, with similar symptoms in the thoracic and lumbar spines (Exhibit "1", p 73), nor did he discuss the plaintiff's complaint of pain in the middle and lower back, which hurts with movement (Exhibit "1", p 74). He did not discuss the plaintiff's complaint of being limited with household activities because of back pain: Exhibit "1", p 74.
Professor Myers did not discuss his findings on examination concerning the observed decrease in lateral bending, flexion and extension and rotation movements: Exhibit "1", p 78. His comment about the plaintiff "having no major issues with her activities of daily living" was made in juxtaposition of the plaintiff's complaint that she does very little around the house "because of her back": Exhibit "1", p 78. His reasoning does not seek to either deal with or reconcile that history. Instead, he stated, ambiguously, as observed at paragraph [94] above, that the plaintiff had some mild soft tissue injuries to the cervical and lumbar spines "which has now settled": Exhibit "1", p 79. In view of the identified ambiguity, I consider his commentary to be unreliable.
The medical reports give no useful guidance to the assessment of this head of damage. They do not deal with the specific tasks of heavy housework, and absent requisite qualifications and reasoning, they are not prescriptive nor are they of useful guidance: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [93]; Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83]. Instead, I consider the plaintiff's own experience, taken together with the medical opinions on the nature of her physical problems, provides the most useful guidance in providing insight into this question: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [54].
I consider that the plaintiff's plan to live independently of her family at some stage soon is a reasonable one for a young person in her position.
When she does so, in view of her disabilities she will most probably have difficulty with the heavier items of housework, and household tasks that will involve her in lifting, bending, carrying, and the other tasks the medical evidence identifies as representing sources of difficulty for her.
I accept the plaintiff's evidence that when she lives apart from her family, it is most probable that she will be paying someone to assist her with those tasks. The difficulty for assessment is that the likely timing of the need for such assistance is not clear, and the number of hours per week required for such tasks is not clear either. Those difficulties justify the buffer approach to assessment, as provided for in the authorities already referred to in connection with the claims for future economic loss and future treatment expenses.
On this head of damage, doing my best to be fair to the plaintiff whilst not being unfair to the defendant, I consider the appropriate buffer sum to be $10,000. I therefore assess the plaintiff's damages for future domestic expenses in the buffer amount of $10,000.

Vasa v Ubiparipovic & Anor

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