Wainwright v Lee [2013] ACTSC 191

4. The defendant does not seem to have slowed down for the intersection, and the impact occurred at some speed on her part. The airbags in the plaintiff's vehicle were deployed, in itself, I am informed, quite a traumatic experience. On explosion the airbags released a fine smoke-like dust. In addition the engine compartment of the plaintiff's car caught fire. The plaintiff screamed at her daughter and her husband in panic to get out of the car. She and her daughter did so, and ran from it. She realised that her husband had been unable to open his door because of collision damage. He managed to kick the door open and escape, and the fire was put out by the fire brigade, who attended as did ambulance and police.

5. After the formalities, the plaintiff and her family walked home. All suffered some injuries, the claims by the husband and daughter being settled without the need for a trial. Their car was damaged beyond repair and in due course they bought a replacement vehicle.

6. Oral evidence was given by the plaintiff and her husband. The plaintiff was born in Perth. Her family moved to Canberra when she was seven and she has lived here since. She completed Year 12 at school, and joined the Commonwealth Public Service. In her early twenties she travelled overseas for about four years, then returned to Canberra and rejoined the Public Service. She progressed through clerical levels in different Commonwealth agencies, and from about 1986 has worked in human resources.

7. When she was about sixteen she was a pillion passenger on a motorcycle which was involved in an accident. She broke her left arm and was in hospital for about a month. Pins were surgically inserted, and removed a year later. She had considerable physiotherapy. She was left with a somewhat weakened left arm, and some scarring and numbness.

8. The plaintiff's father died of lung cancer, thought to have been asbestos-related, in 1998. The plaintiff was deeply distressed by the loss of her father and the nature of his fatal illness, and still becomes quite emotional if asked questions about it.

9. The plaintiff commenced an in-vitro fertilisation program during 1997, which resulted in her daughter's birth. She continued with successive programs after that, fourteen in all, but none was successful. She found this an emotionally upsetting process, with daily hope and frequent disappointment. The physical aspect of the process had been explained to her but she had not been adequately prepared for the psychological effects. Between 1998 and 2001 there were difficulties in her marriage which led to a temporary separation, and proceedings in the Family Court. She and her husband were referred to Dr William Knox, psychiatrist, for counselling, ultimately leading to reconciliation.

10. During 2001 the plaintiff completed a degree of Bachelor of Arts at the Australian National University, majoring in English Literature and Philosophy. She had undertaken the course part-time over some seven years.

11. As happens in cases of this nature, records were required to be produced by the various practices where the plaintiff had received treatment before and after the car accident. From this source a record emerged of an attendance in May 2002 at a physiotherapy clinic for an episode of neck pain. The plaintiff's evidence was that she had no recollection of this incident, although she accepted that the entry must have been correct.

12. During 2003 the plaintiff was bullied by her work supervisor. She saw her general practitioner and at her own request was referred to Dr Knox. He was of some help, and the incident passed. Her general practitioner had prescribed some antidepressants for her but Dr Knox advised her not to take them further because in his opinion she was not depressed although she might have been a little anxious. Her recollection was that she had about a week off work at that time.

13. The plaintiff's husband had suffered over a lengthy period from liver disease. In December 2005 he underwent a liver transplant. Before the transplant, and since, it has been necessary for him to go to Sydney at intervals of three months to see a specialist, and sometimes for more intrusive procedures.

14. In March 2006 the plaintiff found herself having difficulties with a new work station following a move into a refurbished older building. She complained of neck pain. Her work station was modified. She had some physiotherapy at this time. Her recollection was that the problem resolved after four treatment sessions, within about a month.

15. Records produced by the physiotherapy practice recorded two attendances a few months later for "exacerbation of neck/right arm pain after fall". The plaintiff had no recollection of any fall and could not recall by the time of the trial anything about these attendances, a few days apart.

16. In late 2006 the plaintiff and her family had a holiday in Thailand. They stayed at a resort hotel which offered beach massages. At the end of a particular massage her neck was painful. She attended a medical centre nearby, and saw a doctor who prescribed various (now unidentified) medications. On her return to Canberra she saw her general practitioner. The note by the general practitioner records that the plaintiff spent five days in bed following this incident, but that does not accord with the plaintiff's recollection and may have been the result of a misunderstanding. The general practitioner advised the plaintiff not to take the medication she had been prescribed in Thailand. She noted that the neck symptoms had resolved, with numbness in the arm requiring further physiotherapy but likely to settle. She was prescribed Naprosyn and Temaze. At trial the plaintiff did not recall having physiotherapy following the incident. I had the impression that the plaintiff did not regard the Thailand massage issue as of any real significance and probably would not have mentioned it if it had not emerged from the medical records produced.

17. The general practitioner's records also referred to an attendance in January 2007 following a motor vehicle accident, with complaints of aching in the left arm and right neck. The plaintiff recalled the car accident as a very minor event. She was turning left in slow-moving traffic when a car behind rolled into her. She did not recall any injury in that collision, or any damage to her vehicle. The general practitioner's note referred to a job promotion requiring hard work making her neck worse, and noted that she was seeing the physiotherapist and was to see the physiotherapist again when the car accident intervened. The plaintiff's promotion to Executive Level 2 was gazetted two days after that attendance on the doctor.

18. The records show that the plaintiff saw her general practitioner again in April, June and August 2007 complaining of stress at work and, on the first occasion, of failure with her husband's liver transplant. The notes refer to her being upset and anxious and having trouble sleeping, and to the prescription of appropriate medication for those conditions. She saw the general practitioner only on those four occasions during 2007 prior to the motor vehicle collision the subject of the present action.

19. At about the end of August 2007 the family moved to another house in Turner. They had lived in Turner for about fourteen years, in an area of considerable redevelopment for medium-density housing, and had been under pressure from estate agents and developers to sell. They were concerned that unless they moved they might find themselves in the only original house in the area, overlooked by large higher-rise developments.

20. The plaintiff was a hard-working and keen gardener, and had created the garden at the previous house, without a great deal of help, it must be said, from her husband. She thoroughly enjoyed the gardening, including removal of concrete paths, consulting with a landscape architect to plan the garden, moving rocks, spreading deliveries of topsoil, and regular planting and creation of garden beds. Her intention was to do something similar with the new block, apparently the second-largest block of land in Turner. As they were preparing to move in, she had some dead trees removed. Their previous house was being demolished and they had permission to take whatever they wanted from their previous garden. The plaintiff did a lot of digging of plants and moved them to temporary beds at the new house. She hired a man with a bobcat for the heavier work, but spent many weekends digging and moving smaller plants.

21. Early in October 2007 the plaintiff and her husband and daughter went to the Gold Coast on holiday for about five days. They took their daughter, then aged nine, to theme parks with roller coasters and other rides. The plaintiff went on these rides with her daughter uneventfully.

22. The plaintiff described the motor vehicle collision on 14 October 2007. It was clearly a very frightening experience for her. She was immediately aware of severe pain in the pelvis area, but she was able to get out of the car and, some time later, to walk home. She realised at home that she was in a lot of pain. Her husband was also feeling unwell, and that evening they caught a taxi to Calvary Hospital. There were more urgent cases ahead of them to be dealt with, and after waiting for between one and two hours, they decided to catch a taxi home which they did, largely because the plaintiff was in quite a lot of pain and did not want to wait at the hospital for perhaps hours longer.

23. The family all walked to the rooms of their general practitioner, Dr Elizabeth Pickup at the O'Connor shops the next morning. The plaintiff was in a lot of pain, generally in the torso. She said that she felt painful all over. Her neck was hurting and she had bruising from the seatbelt. Dr Pickup noted pain to the knees, pelvis, right anterior chest and neck. She referred the plaintiff for physiotherapy for her neck. The physiotherapist took the view that the plaintiff was more seriously injured than had been realised, and sent her back to her general practitioner. She was referred for an x-ray, which detected a fracture of the right tenth rib and a possible fracture of the ninth rib. She was in considerable pain and was unable to sit or lie comfortably. She was given a certificate for a week off work but went back to work after two days, influenced by the fact that there was work to be done and that there was nothing she could do at home. She thought that her productivity that week at work was low. She evidently had some sort of confrontation with her superior at work, and was told that if she was unable to do the work she should go home. She was at that time in pain by reason of the fractured ribs, exhausted and not eating. The doctor reassured her that the rib fracture would heal and the symptoms would dissipate over a few weeks, whilst acknowledging that fractured ribs cause a significant degree of pain during the recovery period.

24. In January 2008 she leant down to pull out the bottom drawer of a filing cabinet, which she thought was unlocked but which was not. She pulled hard and this caused a lot of pain in her side, taking her back to the doctor. She had further x-rays but no further fracture was detected and she was reassured. Her recollection is that the broken ribs took about six weeks to heal. However, her neck pain was not improving and extended into the shoulders and arms, with extreme restriction of rotation to both sides, to the extent that the plaintiff thought that it was dangerous for her to be driving a car. A developing symptom at that time was that her left arm felt heavy and strange, as though it was not part of her body, with numbness in the ring finger and little finger of the left hand. Dr Pickup referred her for hydrotherapy, which she had over the next few weeks, involving exercise in a heated indoor pool and on a rowing machine. She thought that she gained some benefit from this.

25. In May 2008 Dr Pickup referred the plaintiff for an MRI scan of the cervical spine. This showed disc lesions at all levels from C3-4 down, with disc protrusions and bulging. At C6-7, there was a posterior annular tear with disc protrusion.

26. In October 2008 she commenced a course of acupuncture treatment at the Chinese Treatment Centre. She said that by that time she was clutching at straws but had heard reports of acupuncture being effective with some people. She attended weekly for about thirty sessions until mid-2009. The acupuncture gave her pain relief in the neck for about two days, each time. But the pain came back, and eventually the plaintiff decided that the acupuncture was not leading to a cure, and she discontinued it.

27. She was referred by Dr Pickup to Dr Colin Andrews, neurologist, for a nerve conduction study, following which Dr Andrews referred her for further x-rays. He told her that he thought she might be suffering from thoracic outlet syndrome, which might require surgery, although it was possible that the symptoms would resolve over time without intervention. He recommended against further physiotherapy or acupuncture.

28. In July 2009 the plaintiff and her family travelled to the United States and Cuba. They upgraded their economy airfare to business class to help the plaintiff cope with the long-distance flight. While in Los Angeles the family went to Disneyland. They flew to Mexico and then to Havana. The plaintiff took anti-inflamatories as she required them. In Cuba the family rented a car, which the plaintiff's husband drove. They travelled for no more than two hours a day. At one stage the car broke down and was replaced by another rented car. Although they had not planned to do so, they stayed at a resort for four days because the plaintiff was, in her words, absolutely terrified and did not want to travel in the car. She was concerned about the traffic, the state of the roads and the age of other vehicles on the road. Their intention had been to drive to the south-eastern end of the island of Cuba and then to drive back to Havana, but because of the plaintiff's concern as a passenger in the rented vehicle they changed their minds and left the car, and flew back to Havana for their flight home.

29. In late 2009 the plaintiff moved to a temporary position in the Immigration Department, where she spent some five months. During this period she continued to take painkillers and anti-inflamatories as needed. She found that on awakening in the morning her hands were stiff and painful. She was sent back to Dr Andrews for review.

30. During 2010 she was ill with pneumonia and bronchitis, unrelated to the accident, and spent some time off work as a result. She was referred to a sports physician, Dr Karen Bisley, early in 2011. Dr Bisley started the plaintiff on a program of neck-strengthening exercises. Dr Bisley reported that the plaintiff had unresolved issues following the accident which needed to be dealt with, and suggested that she see a psychologist who offered hypnotherapy. At Dr Bisley's suggestion the plaintiff joined a gymnasium at the Australian National University. She was referred to a psychologist, Mr Tom Sutton. Hypnotherapy was attempted without success, the plaintiff being told that she was not a suitable candidate. Mr Sutton conducted some relaxation treatment sessions. He regarded it as important to have the plaintiff confront her fears of travelling in motor vehicles. By the time of the hearing, the plaintiff was continuing to see Mr Sutton from time to time.

31. She obtained temporary relief from further physiotherapy.

32. She saw Dr Andrews again. He repeated the nerve conduction tests, and recommended a cortisone injection, which the plaintiff had in September 2011, performed by a radiologist. The injection was painful but led to complete relief of the plaintiff's pain in her hands. Dr Andrews was of the opinion that the relief might be permanent, although the injection might need to be repeated at some time in the future. The injection did not relieve the neck pain or other neck symptoms.

33. Over the period following the car accident the plaintiff reduced her work hours. She continued to work what would normally be regarded as full-time hours in the public service, but no longer worked late at night to complete tasks. The reason for this was the neck pain. The plaintiff took painkillers but eventually these would wear off and her neck would start to hurt again.

34. By the time of trial the plaintiff had been working in the same position at the same Commonwealth Department for about six years. Her evidence was that if it had not been for the accident she would have applied for other positions at the same level (EL2) in other Commonwealth agencies. Rates of pay for jobs at that same level varied quite significantly from agency to agency. The plaintiff at the time of trial was earning about $120,000 per annum before tax. Her department was one of the lower paying agencies for her level. Other jobs she might have successfully applied for would have paid as much as $10,000 a year more. If it had not been for the accident, the plaintiff's evidence was that she would probably have moved to another job by about 2009, at a higher salary.

35. Her intention had always been, and remained, to retire at about the age of sixty. She was concerned at trial that she might be unable to continue working until that age.

36. Before the accident, she and her family regularly drove to Victoria. Her husband had grown up in Melbourne, and most of his family on his father's side lived in the vicinity of Bairnsdale in East Gippsland. As a Victorian, her husband, a Collingwood supporter, drove to Melbourne to watch football games fairly often. Since the accident the plaintiff had not travelled to Melbourne by car. She had travelled to Bairnsdale three or four times. She felt anxious as a passenger herself, and almost equally anxious at the thought of her husband driving to Victoria with her daughter, to the extent that they had ceased doing so and travelled to Melbourne by air.

37. Before the accident, they had also driven to Sydney regularly because of the plaintiff's husband's medical condition. After the accident they continued to travel to Sydney by car from time to time, but not nearly as often as before. There had been one occasion when the plaintiff had had to drive herself from Sydney to Canberra since the accident, which she had found a most distressing experience.

38. The plaintiff continued to drive in Canberra, but not as much as she had previously. To some extent she found it unavoidable.

39. The family had engaged in cycling in Canberra before the accident, as a reasonably frequent leisure activity. The plaintiff had given that up since the accident because of neck pain. For exercise she continued, by the time of hearing, to attend the ANU gym, with exercises including cycling on a fixed bicycle, but her main exercise had become walking.

40. She and her husband had previously been regular attendees at a university film group, but since the accident the plaintiff found that watching films or going to the theatre hurt her neck and she generally avoided doing so.

41. By the time of trial, the plaintiff was taking medication for neck pain every day. She took Panadol Osteo, available without prescription, and sometimes anti-inflamatories which she bought on prescription.

42. She was no longer able to undertake all of the gardening, which she found very frustrating. There were a number of garden tasks needing to be done which had been neglected. She tried mowing the lawn herself in about 2008 or 2009 but found that this was painful, and gave it up, engaging a man to do the mowing.

43. The plaintiff said, without going into great detail, that the accident had had an adverse effect on her physical relationship with her husband.

44. She was extensively cross-examined but generally adhered to her evidence in chief, other than as to relatively minor matters which I would put down to inaccuracy of recollection. Her evidence was corroborated by that of her husband. His evidence was not seriously challenged.

45. Reports were tendered in the plaintiff's case from Dr Andrews, Mr Sutton, and two specialists who had been qualified for the purposes of the case, Dr Graeme Griffith, consultant surgeon, and Dr Ron Brooder, neurologist. Dr Andrews and Dr Griffith gave oral evidence.

46. Dr Andrews arranged nerve conduction studies for the plaintiff in April 2009, which showed normal conduction in the median and ulnar nerves. He viewed an MRI scan of her cervical spine, which showed a disc rupture at C6-7. She had some weakness in the upper left arm. He suspected a thoracic outlet syndrome. When he reviewed her in June 2009 she seemed to be slowly getting better. In those circumstances she did not need further treatment, in his view. He said that he would have considered surgical decompression only if there was significant pain or loss of function. He said that in his experience car accidents could cause injury to the neck area and also exacerbate thoracic outlet syndrome. He suspected this had happened. It should clear up in the short term but might recur perhaps five or ten years into the future.

47. Dr Andrews reviewed the plaintiff in November 2011, shortly before the hearing. By then he had seen her on numerous occasions. She had a good range of neck movement. As a result of the car accident she had ruptured the C6-7 disc and this had caused pain down the left arm, which had been successfully treated with a nerve block. Symptoms were mild but continuing and likely to persist. If the pain down the left arm increased, the nerve block could be repeated. There had been evidence of thoracic outlet syndrome, temporarily aggravated by the car accident, which seemed to have settled. There was still slight tingling in the fingers. Neck pain remained but was much less severe.

48. In cross-examination, Dr Andrews adhered to his view that the car accident had caused an injury to the C6-7 disc. The 2008 MRI scan showed a tear in the annulus which was suggestive of recent injury, probably within months of the scan. There was also evidence of older cervical spondylosis, with some osteophyte formation around the disc. This would have been a pre-existing condition at the time of the car accident, aggravated by that injury. The spondylosis would have made the plaintiff more vulnerable to the kind of injury she had suffered.

49. Dr Griffith saw the plaintiff on two occasions, in December 2008 and October 2011. Each time he spent about ninety minutes with her, taking a detailed history and conducting a full physical examination.

50. His diagnosis was that she had suffered a number of soft tissue injuries to the neck and low back, and also fractured ribs, all of which had resolved. She had aggravated pre-existing cervical spondylosis, with annular tears possibly due to trauma.

51. She had been left with persisting pain in the low back, headaches, referred pain in the left arm extending to the fingers, and a chronic adjustment disorder with manifestations of depression and anxiety. He said that the prognosis of the acute injuries was excellent and that most had already resolved. She was virtually free of symptoms and had an excellent range of motion in the cervical spine in spite of marked multi-level degenerative changes seen on the 2008 MRI scan. He described this as an example of the symptoms not reflecting the extent of the underlying pathology. Her prognosis was for relative progression of her degenerative disease.

52. When Dr Griffith saw the plaintiff again in October 2011 he noted that she remained significantly symptomatic, with psychological sequelae which had been identified and appropriately diagnosed by Mr Sutton. She had had some benefit from acupuncture but he did not think that this was likely to help her in the future. He recommended continuing medical treatment for her cervical symptoms, including prescribed medication and a continuing exercise program.

53. Dr Griffith said in his oral evidence that the significance of the accident was that the plaintiff's underlying degenerative condition had become continuously symptomatic. This was unusual and would not normally have been expected in a woman of her age. The accident was likely on the balance of probabilities to have made the condition symptomatic for a protracted period, and to have caused acceleration of the degenerative process. The changes which could be seen in the films of May 2008 suggested significant structural injury to the cervical spine at a number of levels. The forces involved in the car accident had probably been considerable. The forces involved in an impact with a vehicle travelling at 60 km/h were roughly equivalent to jumping out of a third-floor window. In those circumstances it was not surprising that a person predisposed by underlying spondylitic changes would suffer a significant progression of an acute nature in the progression of their condition.

54. Dr Brooder saw the plaintiff in November 2010 and in November 2011. He was provided with a considerable amount of background material including medical reports. He took a detailed history from the plaintiff and examined her thoroughly. He concluded that she had been injured in the motor accident in October 2007. Prior to the accident he accepted that she had not been subject to any persistent cervical pain or disability, although she had had some self-limiting episodes of neck pain. The accident had caused a musculo-ligamentous injury to the supporting structures of the cervical spine, in particular the facet joints and the intraspinous ligaments. The impact had also caused an aggravation to multi-level degenerative changes in the cervical spine, and the plaintiff's pain had been associated with the development of secondary muscle spasm involving the lower cervical and upper thoracic paraspinal muscles. The spasm had caused a subtle alteration to the posturing of her cervical spine and shoulder girdle, causing the induction of a bilateral thoracic outlet syndrome and lower brachial plexus irritation, particularly on the left side.

55. Dr Brooder thought that the plaintiff's prognosis in the long term was guarded. She had been subject to persistent symptoms over more than three years when he first saw her. Some further improvement was possible but she remained at risk of continuing cervical pain to some degree indefinitely.

56. Dr Brooder noted that the plaintiff had also developed increased anxiety as a result of the accident. He thought that she would benefit from a pain management program including assessment and treatment by a clinical psychologist.

57. Mr Sutton reported to the plaintiff's solicitors in October 2011. He diagnosed the plaintiff as suffering from a generalised anxiety disorder with phobic and trauma features. The accident had been a necessary cause of her condition. She would not ever be comfortable driving, but Mr Sutton was hopeful that he could achieve the goal of her allowing her husband to drive interstate (without her as a passenger).

58. Dr Jackson, an orthopaedic surgeon and medico-legal consultant practising in Adelaide, saw the plaintiff for the defendant's solicitors in June 2010 and again in September 2011. In his opinion the plaintiff suffered in the car accident a soft-tissue injury to the cervical spine, which had fully resolved by the time he first saw her. He recorded that she was of an extremely anxious and intense personality, which might affect her physical symptomatology. The thoracic outlet syndrome was unrelated in his opinion to the car accident.

59. When he saw the plaintiff on the second occasion, she described variable levels of pain and stiffness in the neck, and symptoms in both arms, more marked on the left. She obtained some pain relief with medication.

60. Dr Jackson's opinion was that the plaintiff had suffered soft tissue injuries which had resolved reasonably soon after the accident, including an injury to the lumbar spine. Her injury to the cervical spine had probably aggravated pre-existing degenerative changes. She had possibly suffered a psychological disturbance in the form of anxiety, perhaps a chronic adjustment disorder with manifestations of depression and anxiety, but this was beyond his field of expertise. If present he thought that the psychological condition would be likely to influence the physical symptoms.

61. Dr Jackson noted that the plaintiff had had some neck problems before the car accident. She had aggravated her neck condition in the accident but in his opinion the aggravation factor had settled and her continuing symptoms were due to the pre- existing degenerative changes, with no residual disability attributable to the car accident. Her prognosis was guarded having regard to her symptomatic degenerative changes. Their natural history was that there was likely to be some degree of persisting symptomatology into the future. Her symptoms were in his view significantly influenced by her anxiety state.

62. Dr Jackson disagreed with Dr Brooder's statement that a subtle alteration to the posturing of the plaintiff's cervical spine had occurred, resulting in the development of thoracic outlet syndrome. He also disagreed with Dr Brooder about any likely benefit from further physiotherapy. He acknowledged that medical opinions might differ about these matters.

63. Dr Jackson gave oral evidence by telephone. He had graduated in medicine in New Zealand in 1963 and had been qualified as an orthopaedic surgeon since 1974.

64. In cross-examination, he said that the natural history of soft-tissue injuries was for reasonably quick resolution, although symptoms might continue because of the presence of other pathology. In the plaintiff's case, the soft-tissue component of her injuries had settled fairly early on and her continuing neck symptoms were caused by the underlying degenerative condition. He agreed that the continuing symptoms were thus caused by an aggravation caused by the trauma of the accident on the pre- existing degenerative condition in the neck, but he said that there was a difficulty in knowing exactly how long the aggravation persisted after such an incident. He said that degenerative changes could become symptomatic at any time even in the absence of trauma. It was accordingly necessary to try to determine a reasonable period for which aggravation could be expected, taking into account such factors as the nature of the trauma, any previous history of trauma, and any symptoms before the car accident. What was involved was a personal opinion, a matter of judgment and an art rather than a science. The plaintiff might have developed symptoms at any time if the accident had not happened. There was in his view a very strong probability that at some stage similar symptoms would have developed. This might have happened within a week or within a matter of years. He thought that it would have been likely to happen long before she reached the age of seventy, because degenerative changes were progressive. At the same time, Dr Jackson said that he would have to agree with the proposition that it was complete speculation as to at what particular point, in the absence of trauma, the plaintiff would have developed symptoms similar to those she presently complained of. There was simply no way of telling. He would have expected the aggravation factor to have settled within a period of about four years from the car accident. He would expect to see some waxing and waning of symptoms from time to time, arising from progressive degeneration of the cervical spine.

65. The defendant's solicitors also sent the plaintiff to a consultant forensic psychologist, Dr Peter Ashkar. Dr Ashkar has some ten years' experience in practice. He saw the plaintiff in December 2011, shortly before the hearing. He noted that she appeared somewhat anxious and that her speech was pressured and rapid. Her responses to questions was tangential, that is loosely relevant, and full of extraneous detail. I should say that that is a reasonable description of the manner in which the plaintiff gave her oral evidence also.

66. On testing, the plaintiff displayed mild symptoms of anxiety having a modest impact on her social and occupational functioning. Personality factors appeared to contribute to her anxiety symptoms. She had some characteristics consistent with an obsessive- compulsive personality style, including orderliness, perfectionism, mental and interpersonal control, rigid thinking and reduced openness to new experiences. There was no evidence that she had been suffering from any psychiatric disorder before the accident, though she may have been experiencing minor symptoms of anxiety. A person of normal fortitude could suffer a psychiatric illness as a result of a car accident. Dr Ashkar disagreed with Mr Sutton's diagnosis (generalised anxiety disorder) and offered as an alternative diagnosis a cluster C (anxious/fearful) personality disorder with obsessive-compulsive features. He thought that this diagnosis offered a better explanation for the plaintiff's symptoms of anxiety and for her behaviour more generally. He acknowledged that it could be very difficult to differentiate between an anxiety disorder and a personality disorder and he did not presume that his assessment, based on only one meeting with the plaintiff, was preferable. He was concerned, however, that Mr Sutton might have overlooked the possibility of a diagnosis of personality disorder. Dr Ashkar thought that the plaintiff would benefit from psychological treatment for management of her anxiety.

67. Mr Sutton was provided with a copy of Dr Ashkar's report for comment. He adhered to his diagnosis of generalised anxiety disorder, and thought this was preferable to the provisional diagnosis posited by Dr Ashkar. He noted that Dr Ashkar had not administered any of the conventional tests for personality disorder. Mr Sutton did not believe that the plaintiff suffered from a psychological obsessive-compulsive disorder, though elements of this may have been appropriate to a description of her personality style.

68. Neither Dr Ashkar nor Mr Sutton gave oral evidence.

69. The defendant's solicitors also sent the plaintiff to see Dr K Lethlean, neurologist, in May 2010 and September 2011. They did not tender Dr Lethlean's reports or call him to give evidence. I draw the available inference that Dr Lethlean's evidence would not have assisted the defendant's case.

70. As I have already said, I generally accepted the plaintiff's evidence as honest and truthful. She was not in any way evasive, although her answers were often longer than necessary and somewhat rambling.

71. In cases like this, counsel for the opposing party will often focus on an entry by a general practitioner of a history taken or a complaint made. Typically, as here, the general practitioner will not be called to give evidence, and would in any event probably have little if any recollection of what was said. I remind myself that a busy general practitioner sees numerous patients in the course of a day's work, and makes notes without much, if any, thought to the possibility that they will be scrutinised by a court perhaps years later and significance attached to every word used.

72. In the present case the plaintiff, in relation to a number of such questions, had no recollection of the attendance on her doctor or the cause of it. Often the consultations were years before she gave her evidence. I did not come to the view that the plaintiff was other than completely honest in her evidence about these entries, nor was I persuaded that her reliability as a witness was compromised by such cross- examination.

73. There is no doubt that the plaintiff had, well before the motor accident, experienced sporadic symptoms of neck pain and referred pain attributable to the progressive degenerative condition in her cervical spine. I am satisfied that all of these incidents were, in the words of at least one of the doctors, self-limiting: that is to say, that the symptoms disappeared after a time, sometimes without any active treatment. I accept the plaintiff's evidence that these occasions did not cause her to take any appreciable time off work. The plaintiff is, and was, it seems to me, a person who attended on her general practitioner rather more often than many people might, sometimes because of physical complaints and sometimes because of stress and anxiety-related complaints. I do not say that as a criticism of her. I had the impression that, in relation to stress at work, sometimes she was able to resolve the issue by a discussion with her general practitioner, with no need, or little need, for any time off work.

74. I am satisfied that the impact in the motor accident on 14 October 2007 was a severe one, causing the plaintiff significant physical injury as well as psychological injury. I accept her evidence that, whilst she had had episodes of temporary neck pain before the car accident, after it she has suffered from virtually continuous neck pain of varying severity.

75. On the evidence, I cannot be satisfied that the plaintiff had had any neck symptoms during a period of at least six months prior to the car accident.

76. I am satisfied that as a consequence of her neck pain the plaintiff has found it necessary to reduce her working hours. She is able to work a normal public service day but can no longer work for many hours beyond the usual limits, as was her previous habit. I accept that because of this she has chosen not to seek better-paid jobs in the public service. She frankly conceded in her evidence that she did not aspire to promotion to the Senior Executive Service, but I am satisfied that if it had not been for the car accident she would have applied for EL2 jobs in other Commonwealth agencies and that she would have done so successfully, if not immediately.

77. I accept that she never intended to work much beyond age sixty, and that she is still likely to be able to work until age sixty, but that there is some risk that her symptoms will cause her to seek retirement a little earlier.

78. I accept that the plaintiff has been incapacitated for the heavy gardening work she performed and enjoyed before the car accident, because of her neck pain, and that this has substantially reduced her enjoyment of that activity, an important part of her life. I accept that she has given up cycling with the family because of her neck pain, and that she has greatly reduced her attendance at films and the theatre for the same reason.

79. The car accident has had a marked impact on the plaintiff's anxiety about motor vehicle travel. Because of the accident, she avoids long-distance car travel, as a driver or passenger, as much as she can, and reduces her driving even around the suburbs of Canberra to a minimum. Her anxiety about her husband and daughter travelling long distances by car is, I have no doubt, completely genuine, and may be permanent.

80. There is no issue on the medical evidence that the impact in the car accident caused aggravation of the plaintiff's pre-existing degenerative changes in the neck. I am satisfied that the accident was responsible for the annular tear at C6-7, and that both of these things have caused her significant continuing neck pain, and referred pain in both arms, particular the left, radiating to the fingers.

81. I reject the opinion of Dr Jackson that, as a matter of causation, the plaintiff has somehow recovered from the aggravation to her underlying degenerative condition and that her continuing symptoms are to be seen as caused by that condition rather than by the car accident. In that regard I prefer the opinions of Dr Andrews, Dr Griffith and Dr Brooder.

82. I take account of the possibility that the plaintiff might have been exposed by now, or might be exposed in the future, to some other traumatic event which might have caused, or might cause, her degenerative condition to become symptomatic. I am not persuaded on the evidence that there was or is any practical likelihood that the condition would have become symptomatic in the absence of trauma. That is a possibility but, on the evidence, a remote one.

83. The plaintiff will continue to need to see her general practitioner from time to time, for prescriptions for medication and to discuss the treatment of her symptoms as she needs to. She is a person who will need to consult her general practitioner more often about these matters than other people might. I accept that she will need continuing treatment, possibly for a long period, with a psychologist for her anxiety, particularly the anxiety associated with car travel.

84. Senior counsel for the plaintiff submits that a fair award for general damages for pain and suffering and loss of enjoyment of life would be $95,000.00. Counsel for the defendant puts a figure of $60,000.00. That figure is to some degree reflective of an acceptance of Dr Jackson's opinion as to causation.

85. It seems to me that upon consideration that a reasonable award for general damages would be $85,000.00. It is now six years since the car accident. The plaintiff is 55. She probably has another five years of working life in the public service ahead of her, and many more years by way of life expectancy. Counsel for both parties submitted that the award for general damages should be apportioned equally between the past and the future, an approach which I adopt. The past component should be weighted a little more towards the period soon after the accident. For interest on the past component of general damages I award $5,500.00.

86. Treatment expenses to the date of trial were $14,737.84. Notwithstanding the submissions of counsel for the defendant, I am satisfied that the car accident was a cause of all that expenditure. $4,616.34 of that sum had been paid by the plaintiff herself, and she is entitled to interest on that part of it.

87. There will have been further expenditure since trial, in particular for general practitioner consultations and for medication. I allow $16,000.00 in all for treatment expenses, and accept that the plaintiff would have paid at least $5,000.00 of that. The amount paid by the plaintiff attracts interest at the prescribed rates. The evidence does not permit me to undertake a precise calculation because I do not have the dates of each payment by the plaintiff. Doing the best I can, I allow $1,500.00 for interest on the past treatment expenses paid by the plaintiff.

88. There is an element of speculation as to how much the plaintiff is likely to need to spend in the future, and as to precisely what treatment she will need, and decide, to undergo. Again, this is not something that lends itself to a mathematical approach. Senior counsel for the plaintiff seeks $15,000.00 for the future. Counsel for the defendant concedes a figure of $5,000.00. I allow $10,000.00, noting that the plaintiff will have expenditure for general practitioner consultations, medication, gym fees and a program with her psychologist, at least.

89. There is a significant issue between the parties as to the appropriate allowance for loss of earning capacity for past and future. Senior counsel for the plaintiff seeks a total award of $60,000.00 for past and future, including interest. Counsel for the defendant concedes only $3,840.00, including interest, for the past, with no allowance for the future.

90. The approach of senior counsel for the plaintiff was to accept the plaintiff's unchallenged evidence that she would have applied for better-paid EL2 positions at between $5,000.00 and $10,000.00 gross per annum more than she was earning and continues to earn. At that level any increase in earnings would have been taxed at 37%. Senior counsel submits that a net loss figure should be adopted of about $100.00 per week, and it should be assumed that she would have achieved promotion by about 2009 if it had not been for the car accident. By then the plaintiff would have had about ten years of working life ahead of her, some of it now in the past and some in the future. Some allowance should also be made for the possibility that the plaintiff might not be able to continue working until age 60. Even if she had to retire, because of her injuries, six months early, at a present earning rate equivalent to about $85,000.00 net per annum, this would result in a significant loss.

91. Counsel for the defendant submitted that I should allow loss of earnings for only a few weeks after the accident.

92. I am satisfied that the approach urged by senior counsel for the plaintiff is preferable. I am not satisfied on the evidence that the plaintiff suffered any actual loss of earnings in the early period. She had been in the Public Service for many years and had accumulated sick leave credits which I think she probably used for the early absences. I am, however, persuaded that she would have achieved success in one of her applications for an EL2 position in another Commonwealth agency, probably by 2009 or 2010, and would have thereafter earned something like $100.00 per week more than she was earning and is presently earning; and that this would have continued until retirement. On that basis I award $20,000.00 for past loss, plus interest of $3,500.00, calculated using the prescribed commercial rate.

93. For the future, I adopt the multiplier 240 from age 55 to age 60 at $100.00 per week, which I reduce by the conventional 15% for vicissitudes, but add a notional component to account for the possibility of earlier retirement. For loss of earning capacity for the future I allow $30,000.00.

94. I recognise that, in addition to the actual economic loss, the plaintiff must be accepted as having suffered a loss of superannuation benefits associated with the loss of earnings. I allow 9% of the amount awarded for past loss, that is $1,800.00 for past lost superannuation benefits, and $2,700.00 for the future. There is no claim for interest on the past component, and, it seems, a general acceptance that no allowance for interest is warranted, although I have some conceptual doubt about the correctness of that approach.

95. A general claim is made for the cost, and the commercial value where there has been no actual cost, of tasks the plaintiff would have performed around the house but has been unable to perform because of her injuries, in particular gardening and mowing. Neither side has attempted a mathematical exercise in this regard. Senior counsel for the plaintiff submits that an appropriate allowance for the Griffiths v Kerkemeyer component, past and future, including interest, would be $15,000.00. Counsel for the defendant concedes a figure of $5,000.00. In the circumstances I do not propose to attempt what would inevitably be an artificial exercise in arriving at what might appear to be a precise figure. I allow $10,000.00 for past and future, including interest.

96. The components of the award are therefore as follows:

97. Upon consideration that figure seems to me to represent an appropriate reflection of the impact of the defendant's negligence on the plaintiff in monetary terms. There will be judgment for the plaintiff for $186,000.00.

98. Costs would normally follow the event, but there may be factors I should take into account in that regard of which I am unaware. I shall accordingly hear the parties before making an order about costs.

I certify that the preceding ninety eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Solicitors for the Plaintiff: Maliganis Edwards Johnson