Anne Christina Palfrey v Maria Matusiak [1990] ACTSC 2 (5 January 1990)

SUPREME COURT OF THE ACT

ANNE CHRISTINA PALFREY v. MARIA MATUSIAK
S.C. No. 1229 of 1988
Motor Vehicle Accident

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Motor Vehicle Accident - Claim for Damages - Negligence - Contributory negligence alleged - No new question of principle.

HEARING

CANBERRA
5:1:1990

Counsel for the Plaintiff: Mr R Williams

Solicitors for the Plaintiff: Messrs Gallens Crowley & Chamberlain

Counsel for the Defendant: Mr J Hartigan

Solicitors for the Defendant: Messrs Abbott Tout Russell Kennedy

ORDER

There be judgment for the plaintiff in the sum of $169,514.96.

DECISION

This is a claim for damages arising out of an accident which occurred on 9 September 1981 at about 5.45pm. Liability is in issue and the defendant alleges that the plaintiff was guilty of contributory negligence.

2. Immediately before the accident the plaintiff was driving her vehicle in a general westerly direction along Kuringa Drive ("Kuringa") towards the junction of that street with Kingsford Smith Drive ("Kingsford Smith") which, at that point, runs roughly north/south. She had just left the Barton Highway which joins Kuringa some 1,500-1,600 metres from the junction to which I have just referred. The only other topographical feature of significance is Owen Dixon Drive ("Owen Dixon") which effects a junction with Kuringa some 300 metres east of the junction of Kingsford Smith with Kuringa. The plaintiff was aware that there was a "Give Way" sign erected against traffic travelling north in Kingsford Smith into Kuringa. At the time of the accident the plaintiff was wearing a seat belt. She was driving at 60 kilometres per hour when she noticed an orange car stationary at the "Give-way" sign. It was at that point still within Kingsford Smith. She said that she was "quite a way back" from the junction when she first saw the orange car. She said that, had the driver of the stationary vehicle wished, she could have proceeded onto Kingsford Smith to make a right-hand turn towards the east with safety.

3. As she continued to approach the junction, she saw the car which had been stationary move "out into the middle of the road" as if it were going to pull out and go. At that point she thought that it could still have made it safely to the other side of the road but then the car stopped in the middle of the road. She braked immediately. Asked whether she did anything about steering her own vehicle she said that she had thought about it since and she thought that she had turned to the left. She was unable to avoid a collision with the other car, the front of her vehicle colliding with its side. She was jolted backwards and forwards in her seat on impact. She got out of the car and described herself as having gone to pieces. She did not, at that moment, consider that she had suffered any injury although she wanted to rub her hip at the point where the seat belt had been fastened across it. Her car was towed away and eventually her husband came to take her home.

4. In a statement taken by Senior Constable Heathcote, the plaintiff described the incident as follows:-
"About 5.45pm on Wednesday, 9 September 1981, I

was driving a Datsun Sedan, registration number
KZZ 177. I was travelling in a westerly
direction on Kuringa Drive on my way to
Charnwood. I was travelling at approximately 60
kilometres per hour and when I was approximately
100 metres from the intersection of Kingsford
Smith Drive, I saw an orange coloured car stopped
at the intersection on Kingsford Smith Drive.
This car was at its Give Way sign and appeared to
be waiting to make a right hand turn.
When I was approximately 20 metres from the
intersection I saw the orange car drive out into
the intersection and the front of that car was at
least a metre out into my lane and stopped. Just
as she was driving out I immediately applied the
brakes and veered to the left. I assumed that
the orange car would keep going in the hope that
I would miss that vehicle. However, the front of
my vehicle collided with the front right of the
orange car.
It was daylight at the time. I did not indicate
any intention of turning left or right as I
approached the intersection. The weather was
fine and the road surface was dry.
As the orange car was driving out from the
intersection I could see that the lady driver was
looking to her left."

5. Questioned at the scene of the accident, the driver of the orange Datsun sedan, the defendant, said that the collision occurred when she stopped and "the other woman hit me". She said that she stopped at the "Give Way" sign and then drove out, saw the other car and stopped. She said that her vehicle was two or maybe three feet over the broken white kerb line indicating the prolongation of the kerb of Kuringa on either side of Kingsford Smith. She was asked why she stopped and said that she had done so because she saw the other car coming and that when she first saw it it was at the second light, some 150 metres south of the intersection. She said that the other vehicle was travelling very fast. Asked her opinion of the cause of the collision she replied,

"I stopped. The other lady drove into me. You
can see how she has come over to my car."

6. The plaintiff gave evidence and was cross-examined. She said that Kuringa was divided into two lanes and was a normal sized carriage way. There were no cars parked on the side of the road as she approached the junction and no cars travelling in front of her either in the same direction or approaching her. She said that after the junction the road goes into a blind bend. She described the junction of a street (which must have been Owen Dixon) to the east of the junction between Kuringa and Kingsford Smith, correctly as I think, as being much further than 100 metres short of the junction. The two junctions were, as I have indicated, approximately 300 metres apart. The plaintiff was asked how far from the junction of Kuringa and Kingsford Smith she was when she first saw the defendant's vehicle and she estimated that it was some 500 metres away. I do not accept this. It is plainly incorrect.

7. She agreed that she had seen the other vehicle at the "Give Way" sign and saw it move out quite slowly. She said that it got to the middle of the road. She said that the defendant's vehicle moved to a point in the road right in front of her, "right in the middle". She said that she thought that the defendant's vehicle was a foot short of the centre line. She agreed that her vehicle had come into collision with the other vehicle striking it on the right front side near the headlight. She said that she thought that the other vehicle was going to go around making a right hand turn into Kingsford Smith. She said that the defendant stopped and she hit her brakes at the same time.

8. The plaintiff gave some evidence as to distances but it was unsatisfactory evidence as so frequently is the case in actions such as this, particularly when the events in question have happened such a long time ago.

9. However, there is available a sketch of the scene of the accident made by Constable G Spencer. From that sketch it appears that the carriageway of Kuringa is 8 metres wide and is divided into two lanes by double yellow lines which do not, of course, extend into the junction. The evidence establishes to my satisfaction that there was a tyre skid mark some 22 metres long which was made by the front near tyre of the plaintiff's vehicle. That tyre mark commenced at a point 1 metres north of the kerb line of Kuringa Drive. Assuming the plaintiff's vehicle to have been about 1 metres wide also (it was a Datsun, rather larger than the defendant's vehicle, the width of which was estimated to be about 4 to 5 feet), it follows that the plaintiff was travelling with the right side of her vehicle about 1 metre south of the double yellow lines on the eastern side of the junction. It was clear that when she braked she turned to the left, either in the hope of passing the defendant's vehicle if it remained stationary or of clearing it if it moved further forward. It is to be noted that a traffic island at the south-east corner of the junction would have tended to channel the plaintiff into the direction which she took.

10. I find the following facts proved on the balance of probabilities:-

(a) The plaintiff was travelling at a speed of 60kph
or thereabouts when she applied her brakes.
(b) The plaintiff did not have her left hand
indicator operating as the defendant said. The
last turn she had made was a right hand turn from
the Barton Highway into Kuringa Drive. She had
come from Young.
(c) The plaintiff, immediately before she applied her
brakes, was driving so that her vehicle was
traversing a path some 1 metre south of the
centre lines of Kuringa and 1 metres north of
the southern kerb line of that street.
(d) When the plaintiff braked, her vehicle's near
front tyre left a tyre burn mark 22 metres in
length.
(e) The defendant's vehicle was about 3 feet, and
certainly no more than 4 feet, past the
prolongation of the southern kerb lines of
Kuringa.
(f) The plaintiff's vehicle sustained damage to its
right front. This is consistent with her having
turned to the left from the course she was
pursuing before the need to brake arose.
(g) The defendant did not see the plaintiff's vehicle
approaching from the right until she had moved
beyond the southern kerb lines of Kuringa into
the intersection.

11. It is clear that the defendant failed to keep a proper lookout and that she drove into the path or almost into the path of the plaintiff's vehicle in circumstances where it is not in the least surprising that the plaintiff thought she was in fact in front of her. The defendant was obviously faced with a decision - to stop or to go on. Had she gone on I do not think that the accident would have happened but she chose to stop. When she did, the plaintiff might well have chosen to go to the right and thus avoid the collision altogether. The only risk involved in adopting that course would have been of a collision with any vehicle travelling east in Kuringa Drive but I am satisfied that there was no such vehicle. However, in my opinion, the plaintiff is not to be blamed for taking a decision which in the event proved to be wrong. All that she was asked to do in the circumstances was to behave as a reasonable person should and this I think she did. On the other hand, the defendant failed to keep a proper lookout and put the plaintiff at risk of a collision, a risk which subsequently came to fruition.

12. In all the circumstances I am satisfied that the defendant was negligent and that there must be a verdict for the plaintiff. That, however, does not dispose of the question of liability since the question of contributory negligence has to be considered. Four particulars of that contributory negligence were given in the defence. They were:-

(a) Failing to keep a proper lookout.
(b) Travelling at an excessive speed in the
circumstances.
(c) Entering an intersection when it was not safe to
do so.
(d) Failing to take any adequate steps to avoid a
collision with the defendant's motor vehicle.

13. I am not satisfied that any of these allegations has been made out. My reasons for not accepting them as made out appear, I think, sufficiently from what I have already said and from the findings I have already made. I have no doubt that the plaintiff was keeping a proper lookout. She saw, and saw accurately, everything that the plaintiff's vehicle did. She was not, I think, travelling at a speed excessive in the circumstances particularly when the defendant's vehicle, when she first saw it, was already stopped at the "Give Way" sign of the existence of which she was aware. In any event, any traffic proceeding in the direction in which the defendant was travelling was bound at the relevant time, and still is, to give way to a vehicle approaching either from the right or left. (See s.122A of the Motor Traffic Act 1936.) Although, in the event, she entered the intersection or junction at a time when it was not safe to do so the manoeuvre was only rendered unsafe because of the defendant's having placed her vehicle generally in the path of the plaintiff's vehicle when it was too late for the plaintiff to do anything about it. For the same reason, it seems to me that although the plaintiff failed to take adequate steps to avoid the collision with the defendant's motor vehicle, she had been placed in a position by the defendant's negligence which gave her two options. That she chose to exercise the wrong one did not, in my opinion, involve negligence on her part.

14. Accordingly, there will be judgment for the plaintiff with no reduction for contributory negligence.

15. The plaintiff, who presently lives at Hurstville, New South Wales and is employed by the East Side Medical Centre at 393 Oxford Street, Paddington, New South Wales, was born on 17 December 1944 at Newcastle-on-Tyne. She left school at 15 when she became a cadet nurse. The Australian equivalent is student nurse. She joined the British Army Nursing Corp as a student nurse when aged 17 and a year later, when she married, was compulsorily retired. She then went to Malta with her husband on his posting to that island. She had three children, two daughters born respectively in 1964 and 1965 in Malta and a son born in 1970. When the family returned to the United Kingdom, she worked as a nurse in a psychiatric hospital in Canterbury and then in a childrens hospital in Surrey. As well, she did some work in a car component factory and some office work. In 1973 the family migrated to Australia, her husband transferring to the Australian Army as a musician. He was posted to the Royal Military College Band in 1973. The family set up its home in Lyons. The plaintiff began to work as an assistant manager with Angus and Coote, jewellers, and then worked as a clerical assistant in the Australian Public Service. In the mid 1970s she decided to do a course which would qualify her as a welfare officer. This she did at the Canberra College of Technical and Further Education. It was a three year part-time course during which she studied health and nutrition. She also worked full-time in the public service for a while and at the Belconnen Remand Centre while engaged in doing the course.

16. She joined the Royal Blind Society in 1979 and was appointed a field welfare officer for the Australian Capital Territory and Southern Division of New South Wales. That area includes Batemans Bay, Bega, Cooma, Boorowa, Crookwell and Goulburn.

17. The job as a welfare officer required the plaintiff to counsel visually impaired people about their loss of sight and to help them to become useful citizens when they felt that they had lost certain functions. She had a car supplied by the Blind Society and travelled about 1,000 kilometres a week to visit her clients in their own environment. She would assess their needs and was required to make written reports. She was required also to liaise with local community groups about the particular needs of particular people. She used to travel five days a week and in theory was supposed to work eight hours per day but frequently she worked for 12 hours a day. When she began to work for the Royal Blind Society her health was good and she loved the work.

18. In 1979 she had an accident outside Yass. A tyre blew causing the vehicle to leave the road and roll down an embankment. After that accident she had uncomfortable feelings mainly in the back of her head and neck. She went to see Dr Caine about it. He gave her some pain killers, Digesics, and a collar which she wore for a short time. The condition got better.

19. In 1981 she had no problems with the neck.

20. When she arrived home after the accident she found, later in the evening, that apart from feeling very shaken and aching all over, she had a dreadful headache.

21. "All over" she described as mainly the back, the neck, just where (she) had been in the seat and where (she) had been thrown forward and back again. She was no better the next morning. The headache had not gone away. She went again to see Dr Caine who arranged for x-rays to be taken. Digesics were again prescribed as was a collar and she took some days off work. Initially, during the period off work, she felt no better. When she went back to work after several days off she was still feeling very uncomfortable but wore the collar when she could. She could not wear it to do her job because it restricted her in the car but when she could she did. She got progressively more and more pain in her neck mainly in the middle, inside the back of the neck, and inside the base of the skull. The headaches she described as being mainly across the back, indeed, always at the back of the head, never at the front. In the next year or so things deteriorated. She felt that she was not performing her job very well and her memory was getting progressively worse. She found that she was acting in a somewhat bizarre manner. She would have an appointment in Batemans Bay but would be half way to Cooma before she realised she was going the wrong way. At other times she would be going to visit clients and would forget whom it was she was going to see. She had not experienced that sort of difficulty before 9 September 1981. She found it difficult to concentrate. The pain in the neck was present all the time, it varied in intensity and sometimes it used to get really bad. She found that vacuuming and driving made the pain worse. She eventually began to regard herself as an invalid and believed that she was not coping with her work. At the time of the accident she weighed nine and a half stone but eventually lost weight so that she weighed eight stone only. She found herself unable to drive for distances necessary in her work without experiencing what she described as "too much pain". She had ceased, she said, to use the vacuum cleaner, she did very little ironing, she found it difficult to carry laundry out to the line or to bring it back in and she had difficulty in carrying shopping. When her husband was there he helped her but he was a serviceman and was not always at home. She had only one daughter living with her at home and her son was quite young.

22. She said that before the accident in September 1981 the relationship with her husband was very good but that after 1981 the relationship deteriorated somewhat. They had difficulties in their sexual relationship, mainly because she was very uncomfortable. Her back hurt and her neck hurt and she just shunned her husband's advances because sexual relations were giving her more pain that she did not want. Her husband did not fully appreciate the problem and it was the source of conflict between the two.

23. Before September 1981 she had suffered from arthritis in her fingers indicated by what she described as "nobbly finger ends". She had some pain, apparently arthritic, in those ends of joints. A tremor seemed to develop in her hands a very short time after the accident, usually occurring when the plaintiff became upset. She described herself as always very weepy and the tremor seemed to go with that condition. Now, apparently, she does not need to be weepy for the tremor to start.

24. The plaintiff said she also felt back pain on the night of the accident. It gradually improved except when she was in the car. It tended to be overshadowed by the neck pain. However, in the last three years it has become worse. It fluctuates.

25. She became increasingly frightened to be a passenger in a car. She did not adopt the role of passenger while she was working for the Royal Blind Society and did not notice the nervousness while being a passenger until after she had left the employ of that Society. She had what she described as "panic attacks" in a car, a morbid fear of hitting somebody or that somebody was going to run into her and she could not control it because she was a passenger. She found herself, by March 1984, unable to cope very well with the work at the Royal Blind Society and was dismissed for poor performance. She did not think at the time that she was coping with her work and was, she said, on a downward curve.

26. She felt sad and upset at having to leave work because she felt it was not her fault. So far as her physical symptoms were concerned, she said that her neck got worse but that the back pain improved because she was not driving any more and the headaches got worse because she was more stressed. She was having a pretty bad time with anxiety and feelings about herself and was taking lots of medication, normison, valium and serepax. Her memory got progressively worse. Her short term memory got progressively worse and is now, she says, really bad. Her self esteem and self confidence deserted her. When she went to Sydney in 1986 she felt that she was then incapable of holding down a job. She felt she was unreliable. This was evidenced by her bursting into tears and having headache and neck ache all the time and lying in bed for days on end. She had some good days.

27. Her move to Sydney was with her husband who had been posted to that city. She there came under the care of Sydney doctors, Dr Brian Galvin, a general practitioner, Dr Pickering, a psychiatrist, and Dr Bannister, an orthopaedic surgeon, who gave her a course of traction for her back and neck. Dr Pickering prescribed no medication but taught her relaxation techniques and gave her a relaxation tape.

28. While she was undergoing traction a physiotherapist came in and massaged her neck and back each day while she was in hospital. She got no benefit from the traction. On 29 November 1987 her compensation payments under the Workmen's Compensation Ordinance 1951 was terminated. At first she wondered what she was going to do. She felt angry because she still had a doctor's certificate and was still sick and confused. The termination placed her in financial pressure so that she and her husband were forced to sell a caravan, their only asset. Then after Christmas she started to look for a job and applied for a work grant. At about the beginning of March 1988 she began to work at the East Side Medical Centre.

29. She said that she was offered full-time work, 35 hours a week, when she started to work at that Centre. She did not tell her employer of her medical history. However, as soon as she saw an opportunity to reduce her working hours she did so. She now works from 8.30am to 1.30pm on Mondays, Wednesdays and Fridays and from 1.30pm to 6.30pm on Tuesdays and Thursdays, a total of 25 hours.

30. The work involves answering the telephone, making appointments for patients, getting notes out for the doctor before he sees patients and seeing that there is clean linen on the beds. She has noticed that since she started working she is much better physically. She continues to get headaches but not on a daily basis as she used to. For these she takes an average of a packet of 24 Panadol capsules per week. She tries not to use them at home because she does not like using medication but she finds that if she does not take them before she goes to work, she cannot work. She gets headaches now about two or three times a week and continues to suffer from neck pain but it is not as bad since she started work. It never goes away totally but as she described it, it is just there and she thinks she is used to it. She still suffers from back pain from time to time, particularly when she is driving. She takes tranquillizers. The tremor to which she referred earlier in her evidence is still a problem but not as bad as it used to be. It too has improved since she began work. She said that anytime she is in a stressful situation she suffers from tremors. A tranquillizer drug takes away the tremor totally. She takes sleeping pills probably two to three times a week, as infrequently as possible. Being a passenger in a car still causes her problems. As to her emotional problems generally, she says that working has improved her confidence and her self image and her outlook on life. She does not cry as much although she is still prone to burst into tears if she gets upset. She says that the difficulties she was having with her husband concerning their sexual relationship have resolved.

31. Since she has been in Sydney she has undertaken various exercise programs at the direction of doctors and physiotherapists but she found them to be painful. She engages in programs of long walking and has tried some jogging and lawn bowls. She did not persist with this last sport finding its after effects, pain in the neck and back, too painful.

32. She does not believe that she can work longer hours than she is presently working. She says this because she still gets pain but feels in conscience obliged to go to work even if she is not 100% for she can do her job, go home and go to bed.

33. Occasionally she has to face stressful conditions at work and from time to time patients comment on her tremor which becomes worse during such situations and this upsets her.

34. She lives in a townhouse but does not do any heavy housework. When she does have to take heavy loads of washing out to the line, she takes it in small loads.

35. She was cross-examined on her medical evidence and employment history. She agreed that she was having trouble with her right shoulder for which she was receiving chiropractic treatment for at least 18 months before she took up work at the Blind Society. She continued to have treatment in relation to her shoulder after her first car accident but intermittently only up until the time of the second accident. She apparently attended upon a chiropractor, Mr Wyss, on the day after the second accident, 10 September 1981. He noted that for quite some time before that accident she had shoulder problems and had attended upon another chiropractor in respect of them. Since the second accident, she had presented a variety of symptoms, hand tremors, left hip pain, nausea, headaches, tiredness, and soreness and stiffness in the cervical areas. Sometimes the symptoms were presented singly and at other times, all together. She had to use a cervical collar quite frequently.

36. A good deal of medical evidence from many practitioners was tendered.

37. Dr Bannister, an orthopaedic surgeon, gave a brief history in his first report. On examination he found that she demonstrated a forward flexion range to 90\ and although her spinal movements were painful a full range was obtained. He formed the opinion that she had the effects of a motor vehicle accident and her symptoms continued to worry her. She was not, he thought, fit to return to any form of heavy work. He thought that there would be further resolution of her symptoms as time passed but that she could not be involved in work requiring her to sit or stand for prolonged periods, work which involved pushing or pulling heavy loads or work requiring any form of stress on the lumbar spine. That report was dated 14 April 1987. He had earlier reported to Dr Galvin who had referred the plaintiff to him. He examined her shortly before 28 July 1986 when she complained of ongoing pain in the neck, shoulders, thoracic spine and lower lumbar spine with the pain in the neck and the low back pain the worst. Occasionally her pain would be very severe for three days and then resolve to a degree. On examination she demonstrated a straight leg raise elevation to 90\ with fairly severe low back pain, minimal sciatica and no localised tenderness in the lower lumbar spine. She had pain in the thoraco-lumbar junction as well as in the left buttock on forward flexion. Her rotation movements to the left and right were painful. Her range of cervical spinal movements were painful. X-rays of the lumbar spine, dorsal spine and cervical spine were normal. He thought then that she had symptoms consistent with soft tissue injuries as a result of her motor vehicle accident. He recommended further physiotherapy and medication.

38. Dr Bannister examined the plaintiff again in June 1989. She still had low back pain with symptoms radiating down into the left hip. She was complaining of pain radiating down the back of the left calf to the left foot. Most of the pain was in the L5 area. She was also complaining of pain in her neck as well and of inability to lift or push or pull heavy loads. She indicated to him that she was unable to walk any distance and unable to jog.

39. On examination, he found tenderness over the left hip and that her straight leg raise elevation on the left and right flexed to 50\ with low back pain. Her spinal rotation movements were painful. Rotation movements in the cervical area were also painful and there was tenderness at the base of the neck. He said that she still had the effects of her motor vehicle accident in 1981. He thought that she was still restricted from performing the work against which he had recommended earlier. In his opinion he thought that she should be treated non-operatively and that her long term prognosis was for improving function.

40. Dr Galvin first saw the plaintiff on 18 March 1986 when he learnt that she was pursuing her claim for damages as a result of the accident of 9 September 1981. She told him that she was having problems with an anxiety state and in relation to her cervical spine. In October 1986 he thought the anxiety state to be more serious than he had first realised and after some relaxation therapy referred her to a psychiatrist. He said that he had always found the plaintiff to tend to understate the severity of the pain in the region of her cervical spine. He considered that her P'N phobic reaction to car travel was directly due to the motor car accident. Relaxation training initially seemed to help her to be more comfortable in general but did not improve the phobic reation.

41. Dr Pickering, the psychiatrist to whom Dr Galvin referred the plaintiff gave the following summary:-

"Mrs Palfrey is suffering from an anxiety state
and a phobia of being a passenger in a car.
Although this improved to some extent with
therapy, it leaves her far from well. The
connection between the accident and these
symptoms is a little tenuous, but in view of her
lack of awareness of anxiety although it was
detected by others, and her cognitive style, this
is how one would expect the history to run and
therefore no inconsistency exists here.
Certainly, the close temporal relationship that
one likes to see is not present. The delayed
onset of the phobia could be explained by an
alteration in circumstances. Despite the lack of
clear-cut connection between the accident and the
symptoms, the symptoms were certainly not present
on history prior to the accident. I would also
like to comment that quite often a single
incident can set off a chain of events which may
have repercussions through the life of an
individual for years to come. On balance, I
would state that the most likely explanation of
the phenomena that Mrs Palfrey describes is that
they are a genuine psychological disability
resulting from the motor vehicle accident that
she described occurring in 1981."

42. Dr Corry, an expert in rehabilitation medicine, saw her on a number of occasions. In his most recent report, dated 19 September 1989, he concluded that the plaintiff continued to suffer complaints of pain around the neck and shoulder region which appears to have been directly precipitated by soft tissue injury in the motor vehicle accident of 1981. He thought that symptoms were slowly and gradually improving. She was coping with a wide range of activities around her home with the only significant limitation being in relation to ironing. She was coping with general clerical duties five hours daily in a busy general practice. She was also suffering from pain in the terminal phalanges of her fingers and foot pain in the region of the metartasal heads. These symptoms he related to arthritic degeneration and were not a consequence of the motor vehicle trauma. He said that she suffered from a chronic anxiety state. During 1985, after her move to Sydney, she developed a phobic anxiety about motor vehicle travel as a passenger. He thought it seemed likely that there were multiple factors operating in the development of this symptomatology and that her previous motor vehicle accidents could both have been contributory. He felt that the long delay between the accidents and the onset of symptoms would suggest that, but he assumed that full psychiatric opinion had been obtained. He thought her chronic anxiety was a significant factor limiting her capacity to work full-time and was leading to decisions to reduce work hours further. Again he thought there were multiple factors involved. It seemed likely, he thought, that chronic pain was contributory but he could not say how much. As to her work capacity he said,

"She has demonstrated capacity to work full-time
as a welfare officer, including significant
driving in a country region. She appears to be
coping well in a busy reception position in a
doctor's surgery, but stress tolerance appears to
be the major limitation here, rather than any
direct affects (sic) from the motor vehicle
accident."

43. Dr Gerald Caine, unfortunately now deceased, wrote of the plaintiff on 28 February 1984,

"Now I have seen her again on 17 January 1984,
and I have received a letter from you dated
16 January 1984 asking for information about her
accident of March 1980. She told me that she had
been visiting Dr Lang of Charnwood who does
acupuncture. She said that she had been having
some discussions with her supervisor concerning a
bit of memory trouble since the accident of
1981. All in all, Mrs Palfrey's case is most
ambiguous and I still find myself unable to offer
any firm opinion one way or the other as to
whether she has serious disability or not. She
is a nice girl and seems to be dedicated to her
work. She has had the accidents and it seems
likely that she has had some injuries arising out
of them although no solid physical evidence can
be provided to substantiate her claim. One of
the difficulties about such a case is that the
patient tends to wander around rather haphazardly
looking for an instant fix when, in fact, no such
outcome is likely. The usual outcome in these
cases is that time is a great healer and that if
the patient is able to keep on with her work and
keep on with her regular domestic and social
life, eventually they come to terms with the
disability in the neck and for all intents and
purposes they are cured. Nevertheless all these
patients have residual aches and pains which are
intensified when they are tired, when they hae
further injuries, or when they are sick. Some
even complain that they are aggravated by worry."

44. A clinical psychologist, Mr Sutton, carried out appropriate tests to check loss of memory. Reporting on 19 December 1984, he found no evidence of memory deficit. He added,

"Appears to have been a sincere and successful
attempt at adjusting to the pain. Memory can be
affected by pain experiences (and medication).
It is possible that the increased pain felt at
work (which receives a maximum rating in
intensity) is causing temporary difficulties with
recall."

45. The plaintiff was treated by therapeutic massage and muscle release techniques aimed at symptomatic relief and also at correcting vertebral displacement by a naturopath, Mr Guy Clews.

46. Dr Brook, a rheumatologist, to whom Dr Caine referred the plaintiff, reporting on 21 November 1983, found the cervical spine to be slightly stiff with tenderness particularly over the greater occipital nerves.

47. Dr Spigelman, a surgeon who, on 25 September 1987, examined the plaintiff on behalf of the defendant, took a robust view:-

"This lady does not have any physical problems
associated with a motor vehicle accident which
occurred in 1981. Her problems rest entirely in
psychiatric diagnosis. The cause of her
psychological problems which are not within my
competence to ajudge (sic) but on a purely
physical basis, there is no connection between
her current feeling of pain and any motor vehicle
accident in 1981. Her entire story points
straight to a psychiatric diagnosis. She tells me
that the only psychiatrist she has seen was for
her solicitor and she doesn't know what he said.
It is unfortunate that doctors have been
interfering with her psychiatric illness by
giving her periods of traction in hospital and
making her wear corsets when it is plainly
obvious that she needs psychiatric help and the
sooner she gets it, the sooner she will start
getting better. Interference with her in the
form of inappropriate physical treatments are
(sic) only cementing her belief that she has got
something wrong with her other than in a
psychiatric sense."

48. Dr Chandran, a neurosurgeon, reporting on 23 November 1983, had taken much the same view. He said,

"She now shows no evidence, on the history, of
any nerve root compression or significant
disability. Neither does she exhibit any
evidence clinically today on my examination of
any significant injury to her neck. It is
possible that she has minor discomfort in her
neck with some physical work, such as long drives
or digging in the garden. I do not think that
she will show any further deterioration
spontaneously in her condition requiring further
investigations or surgery. In my view she should
avoid all forms of manipulation therapy, whether
by a chiropractor or by a physiotherapist at this
stage. She has had too much of this in the past
two years."

49. Reporting on 10 August 1987, having seen the plaintiff some days earlier, he said,

"Mrs Palfrey claims that her symptoms have been
static. Examination shows no evidence of any
persisting injury to the cervical spine except
for mild tenderness in the left trapezius. In
the lumbar region, no abnormality was found. She
has been able to do some of her leisure
activities including lawn bowling. The talk of
her back pain now raises the question of whether
she really suffered an injury to the back in
1981. She did not mention this at all and I
would suggest that the previous medical records
be traced on this matter. My examination on
6.8.87 shows no evidence of any significant
injury to her back. I would have thought that
Mrs Palfrey was fit to return to gainful
employment and does not require any treatment for
the neck injury that she suffered initially in
1981."

50. Dr Andrea, another surgeon who examined the plaintiff on behalf of the defendant, gave the following as his opinion and prognosis on 10 August 1987:-

"Mrs Palfrey told me that she has arthritis in
her fingers which she does not claim is due to
the accident and she also has had sciatica, on
previous occasions but she does not think this is
due to the accident. I found her symptoms very
difficult to explain on the basis of her accident
in September, 1981. She seems to have had aches
and pains in almost every part of her body and
describes them in unusual terms. She has had a
great variety of treatments and medical
consultations and the picture is now very
confused. It was my feeling that she probably
suffered soft tissue injuries in her accident
which should have recovered relatively quickly or
at least, in a year or two and her other symptoms
are due to other causes."

He re-examined her on 12 September 1989 and reached much the same conclusion.

51. Dr Robbie, a psychiatrist who examined the plaintiff on behalf of the defendant, saw her first on 23 February 1988. She gave him a history of the accident and of subsequent pain in the hip and neck. He said that after a long time she noticed a slow deterioration although she continued to work. She became depressed because of pain and was eventually dismissed in March 1984. He said that there was nothing to find in her neck but there was nothing of the functional either and she was most co-operative. He had no reason to doubt her account of the symptoms but felt that the condition did not sound very serious. He also said,

"She feels she is (sic) neck pain all the time,
but it only gets bad with activity in general,
and she can control it with drugs. While there
was nothing of the functional about it, I did
suspect that her attention was now somewhat
centred on her neck. Either she has a physical
pain in her neck or she doesn't, and I leave that
for the orthopaedic specialists. The pain is not
functional, due to somatization, psychogenic, or
the like. She gets no creakings in her neck."

He discussed her nervousness in cars. He said that she explained that she can get depressed at times over her pain and because she isn't working (she was not then) but she allowed that she was not depressed on the day of the examination and was not significantly continually depressed. He said he could not say that she was especially vulnerable or unusual prior to the accident and did not develop anxiety in motor vehicles as a result of the accident but rather as a result of her brother-in-law's death. He thought she remained a somewhat vulnerable, labile person, perhaps with high trait anxiety. He concluded by saying that he had trouble equating the apparent minor nature of her neck and back pain to her claim to disability but she did not exaggerate grossly because she would feel a lot better if she could get back to work. He suspected that her attention had become centred on her symptoms to some extent but there was still nothing of the "functional" around her symptoms that he could see. She had no psychiatric illness. She was not completely on top of things and remained a bit vulnerable but was over what he took to be an early depression. He found nothing wrong with her intellect and could not provide a psychiatric explanation for her symptoms.

52. Dr Burniston, a consultant in rehabilitation medicine, who examined the plaintiff on behalf of the defendant, gave as his opinion in his report of 3 May 1988 that,

"In the motor vehicle accident in which she was
involved and suffered whiplash injuries affecting
her spine, Mrs Palfrey could have suffered soft
tissue or musculo-ligamentous injury,
particularly in her neck. She could also have
suffered a contusive soft tissue injury in the
vicinity of her left hip. It is of significance
that she did not begin to complain of mid or low
back pain until some months later.
Her treatment was along conservative lines, and
in fact she was able to resume her work shortly
after the accident, and continued working, but
with interruptions for a period of two years....
Because of her repeated absences from her work
... she was eventually dismissed by the (Royal
Blind) Society, and she did not subsequently take
up any form of employment. Whether these
absences were essential is questionable....
When examined she showed minimal signs of
disturbance of her neck other than increased tone
rather than spasm, and tenderness in her cervical
musculature. She exhibited no abnormal
neuromotor signs in her upper extremities.
The x-ray of her cervical spine which was done on
the day I examined her showed no abnormality.
With regard to her mid and lower back, there were
no significant abnormal signs on examination and
the x-rays of her thoraco-lumbar spine which were
done on the day I examined her showed no
abnormality.
With regard to her left hip, there was no
significant abnormality demonstrated other than
possible residual unresolved soft tissue
fibrosis. The x-rays of her hip which were done
on the day I examined her showed no abnormality.
On the whole, Mrs Palfrey appeared to unduly
emphasise her symptoms and I find it difficult to
accept that she is unable to resume employment.
...Her symptomatology could be presently
accentuated by anxiety which she may harbour
about her condition."

53. Dr Burniston reviewed the plaintiff's condition on 11 September 1989. He said finally,

"Although she continues to present as a
moderately anxious woman, who appears to be
pre-occupied with pain and, more particularly,
with the possible significance of these pains,
there are nevertheless signs of only mild
residual effects of the original acute soft
tissue injuries. From a physical point of view,
the residual impairments are very mild indeed and
should cause her very slight, if any, handicap in
the pursuance of her daily activities and her
work. The overall impression is that Mrs Palfrey
remains a somewhat anxious woman, who is unduly
concerned about her condition."

54. The general effect of the evidence of Dr Knox, another consultant psychiatrist who saw the plaintiff at the request of her solicitors, was that she is doing about as much as she can having regard to her physical and psychological condition.

55. On all the evidence, I am satisfied that the plaintiff did sustain an acute soft tissue injury in the cervical spine area in the accident on 9 September 1981. I am also satisfied that she sustained a minor injury to her hip. Her most serious injury was the neck injury. Its resolution has been long delayed. I think that, more probably than not, the remaining symptoms which can be ascribed to the neck injury are slight but the position is complicated by the plaintiff's anxiety state. She was, I am satisfied, a person who was liable to suffer anxiety before the accident and the accident and the continuing pain thereafter, particularly in the neck, served to exacerbate that anxiety. I accept Dr Pickering's view concerning her phobic reaction to travelling as a passenger in a car, which she eventually suffered, is due to the accident. I think her dismissal from her position at the Royal Blind Society ought to be attributed to her growing incapacity to handle the work due to her pain and general anxiety. I think she would have been able to handle the problems which she reported to Dr Corry, problems relating to increasing pressure of work, but for her growing anxiety and depression which I am satisfied was due in the relevant legal sense to the accident of 9 September 1981. I am satisfied that after her dismissal she was, at least for a time, incapable of working because the dismissal was a serious blow to her self confidence. I am satisfied that her psychological condition was complex but that she was not psychiatrically ill.

56. One question concerning her condition relates to an alleged injury to her lumbar spine. I am not satisfied that she suffered any such injury which is attributable to the accident. In her Statement of Claim, which issued with the Writ on 14 June 1983, she complained only of shock, whiplash injury to the neck, bruising to the left hip, nausea, headaches and tiredness. In his report of 21 November 1983, Dr Brook makes no reference to any injury to the lumbar spine and neither does Dr Chandran in his report of 23 November 1983. Both had seen her for the first time very shortly before they reported. When Dr Newcombe examined the plaintiff on 6 June 1985 she apparently failed to mention the lumbar spinal condition to him either. He took the view that, at that time, there was little prospect for her in the current employment market place. She herself says that she was unable to work from March 1984, when she was dismissed by the Royal Blind Society, until March 1988, a period of four years. During much of this period, to 27 November 1987, she was in receipt of workmen's compensation. When those payments ceased on that date she, spurred on no doubt by economic necessity, sought work and after a period of four months was successful in obtaining it. I am satisfied that she could have got work earlier than March 1988 and would have been fit to do it. I accept Dr Robbie's statement that she finally came out of her depression when the family moved to Sydney in 1986 and I think that the appropriate finding to make is that she could have obtained employment when she went to Sydney and her depression lifted. I think it would have taken her four or five months to get such employment and will make an allowance in that regard.

57. That means that I proceed on the basis that the plaintiff is entitled to damages for economic loss first for the period 10 September 1981 to 21 September 1981, a total of $260.96. She went with her husband to Sydney in January 1986. I think that as her depression lifted about that time she should have been able to obtain work (not necessarily and probably not as a welfare officer, having regard to her subsequent history) by not later than 1 July 1986 and make an allowance for damages accordingly. From 1 July 1986 to date I think she would have been capable of earning an income in accordance with what she has earned when she began to work for her present employer. For loss of income between 23 March 1984 and 30 June 1986 inclusive, I allow $31,000.00.

58. Had the plaintiff continued to work for the Royal Blind Society between 1 July 1986 and the beginning of March 1988, she would have earned $28,193.94.

59. I proceed on the basis that the work that she could have got in July 1986 would have been work equivalent to that which she presently has. I make an appropriate, although obviously not necessarily a completely accurate, adjustment to allow for wage movements in the period between 1 July 1986 and February 1988. I assess that she was capable of earning between 1 July 1986 and the beginning of March 1988 the sum of $21,315.00. For damages for loss of earning capacity in that period I award, therefore, $6,875.00. For loss of earning capacity from the beginning of March 1988 to 9 October 1989 I allow $12,450.00 and from 10 October 1989 to date I allow $2,025.00.

60. For future economic loss, I think I should proceed on the basis that the plaintiff is likely to recover gradually over the next three years her capacity to earn in some suitable employment, not necessarily that of a welfare officer, a sum equal to seven-fifths of her present net earning capacity or an amount of $385.00 per week. This would amount to a weekly loss of earning capacity at the end of three years of the order of $50.00 per week. For the next three years I allow a loss at the rate of $163.00 per week discounted by 3% to $24,450.00. Thereafter I allow for 15 years a continuing loss at $50.00 per week which, discounted by 3%, amounts to $28,900.00. I reduce that further by 15% to allow for unfavourable contingencies to $24,565.00. The Fox v Wood component is agreed at $4,779.00.

61. I think it inappropriate to award interest in respect of the loss of earning capacity to the date when workmen's compensation payments ceased because, in the view I take, her loss of earning capacity to that date approximates very closely the amount of $32,164.00 agreed as the amount of payments made for workmen's compensation between 10 September 1981 and 29 November 1987. Thereafter I allow interest at 7% on $16,050.00 for one year and ten months, a total of $2,060.00.

62. For out-of-pocket expenses, including pharmaceutical expenses, I allow $10,400.00 since I do not accept that the tremor and arthritis and the back injury, of which the plaintiff complains, are due to the accident. For future pharmaceutical expenses I allow the sum of $2,000.00 and for future medical expenses I allow $4,500.00.

63. For general damages I allow $32,500.00 with interest thereon of 14% on $20,000.00 calculated from the mean date of 7 November 1985, an amount of $11,650.00.

64. There will be judgment for the plaintiff for $169,514.96.