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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Negligence - Motor vehicle accident - Rear end collision - No issue of principle.
Damages - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury to sterno-costal and thoracic spine areas - Credit of plaintiff - No issue of principle.
HEARING
CANBERRA, 16-18 August and 13-16 September 1993
Counsel for the Plaintiff: G. Lunney
Instructing Solicitors: Higgins Solicitors
Counsel for the Defendant: J Steele QC
Instructing Solicitors: Abbott Tout Russell Kennedy
ORDER
THE COURT ORDERS THAT:behalf of the plaintiff.
DECISION
MASTER A HOGAN This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 19 February 1989.
2. The plaintiff was born on 8 September 1946 in Chile. After completing her education she trained as a hairdresser, at which she worked for a time.
3. She came to Australia in March 1987. She was a widow, and was accompanied by her 4 children, who are now adults. She obtained a job as a casual assistant with the ACT Community and Health Service in August 1988. Her work involved sorting clothes and linen that came from the hospitals, and sending them to be washed. The job did not involve much heavy lifting, but a lot of repetitive arm movement. She usually worked eight hour shifts, on a casual basis, and averaged 30 hours a week at work.
4. Her version of the accident, which was challenged, was that on 18 February 1989 she was driving her car, a 1980 Mazda 626, and came to the intersection of Alpen Street and Copeland Drive in Melba. The intersection was controlled by a give way sign, at which she stopped, waiting for traffic in Copeland Drive to clear. She was wearing a seat belt. A car driven by the defendant collided with the rear of her car. She said in her evidence in chief that there were two impacts. She had her foot on the brake at the time of the first impact. She was pushed forward about half a metre on the first impact, and somewhat further on the second impact.
5. In the first impact she felt something click in her neck, and she was thrown forwards and backwards. She was shaken up again in the second impact.
6. The plaintiff's first language is Spanish. She obviously has some English, but gave her evidence through an interpreter. She found it difficult to put into words what she felt, but I understand her to mean also that she felt pain inside her chest where the seat belt crossed it.
7. After the impact or impacts she was frightened and nervous, and developed a headache.
8. She was given details by the other driver and drove home. The police were not called to the scene of the accident.
9. When her son arrived home and she told him what had happened he went with her, first to the police, and then to Calvary Hospital.
10. The Hospital records show that she was seen in the Accident and Emergency Department on 19 February 1989 at 9.00 pm. She gave a history that she was driving a car at about 2.15 pm when her car was hit from behind. She was wearing a seat belt. She was jolted forwards and hit her head. There was no loss of consciousness or vomiting. She complained of limitation of movement at the neck and back.
11. On examination there was some tenderness in the upper chest. She was tender at the cervical spine, 7th region, and there was painful limitation of flexion and extension. She was also tender in the lower dorsal and upper lumbar region. There was no neurological deficit. Straight leg raising on both sides was 40 percent.
12. A provisional diagnosis of soft tissue bruising was made. She was given a cervical collar, a head injury instruction sheet, and told to take analgesics and use ice on her neck.
13. X-rays the following day of the cervical spine, chest and thoraco-lumbar spine disclosed no abnormality. She was given a work certificate and Panadeine Forte as an analgesic.
14. In cross examination she repeated her version of the accident, namely that she was stationary, with her foot on the brake, when she was struck from behind. She denied a suggestion that she began to move forward and then braked suddenly. She also denied a suggestion that she did that deliberately in order to have an accident. That suggestion gives the flavour of the extent to which this claim was contested.
15. She was also cross examined about the cost of repairs to her car resulting from this incident, the suggestion being that the impact, such as there was, could not have caused an injury as extensive as the one of which she complained.
16. The defendant's evidence was that she was driving her father's Sigma sedan in Alpen Street, and she also intended to make a right hand turn onto Copeland Drive. She saw another car in front of her, also indicating a right hand turn. She stopped behind it. The car in front started to move off. She also started to move off. The car in front stopped suddenly, and she collided with the back of it. It had not moved forward very much. There was nothing in the traffic conditions at the time to alert her to the possibility that it might stop. Her car collided with the car in front only once. She did not observe what distance, if any, the front car was pushed forward. She reversed about a metre, and the front of the car ahead was still behind the give way sign. Photographs of the car she was driving showed that it incurred only a slight indentation on the bonnet, a displacement at the side of the bumper bar, and a breakage of a plastic protector over the front right hand light. A plastic fitting which continued the line of the bumper bar on the right hand side had also been dislodged. She did not suffer any injury in the collision.
17. In cross examination she conceded that she pulled up about a metre from the plaintiff's car when she first stopped, and that it was unwise to be so close. When she moved off she was watching the traffic. She still had her foot on the accelerator at the time of the impact.
18. Counsel for the plaintiff did not put to the defendant in terms the plaintiff's version of the accident. Counsel for the defendant submitted that as a matter of law I am therefore obliged to accept the defendant's evidence.
19. I do not agree with that submission. The cases to which he referred, Precision Plastics v Demir [1975] HCA 27; (1975) 132 CLR 362 and Hardy & Gillette (1976) VR 392, both dealt with cases where the evidence of the witness in question was not only not cross examined about, but was not controverted by any other witness. In this case the plaintiff had already given evidence. The defendant gave evidence which controverted it. There was no requirement in fairness or in the interests of justice that counsel for the plaintiff go through some verbal formula of putting to her what was already obvious, namely the plaintiff's version. There was clearly an issue between them.
20. Another issue that was clearly and explicitly raised was the plaintiff's credit. It will be necessary to deal with it in more detail in connection with the medical issues. But it was argued during submissions that the plaintiff did not suffer any injury in the collision, and that she attended at the hospital and made the complaints that she did in order to fabricate a claim. There is no independent evidence of that suggestion, and it was not put squarely to the plaintiff in cross examination. I have no doubt that if it had been it would have been denied. But my mind is not moved by any formal non compliance with the so called rule in Browne v Dunn. No matter what criticisms I may accept about the plaintiff's evidence, I certainly accept that she did suffer an injury when the defendant's car collided at least once with the rear of her car, and that she was describing truthfully to the doctor at Calvary Hospital the symptoms that she then felt.
21. I also think that it is not necessary for me to resolve the conflict of evidence about how the accident happened in detail. Even if the defendant's version is accepted, if she was as close to the car in front as she appears to have been when she moved off, she needed to exercise care to ensure that if it stopped she would also be able to stop without a collision. It is a common enough experience that a driver of a car which has just moved off may hesitate, slow down or even stop when there is no observable external circumstance requiring them to do so. The driver of a car behind is under no compulsion to drive off behind them so immediately and so close as to be unable to stop in time if that happens to the car in front.
22. On the defendant's own version, she failed to take reasonable care. Of course, if the plaintiff's version be accepted, the negligence was clear.
23. There will therefore be judgment for the plaintiff.
24. Again, if the plaintiff's evidence be accepted, she was not guilty of any contributory negligence. But also, on the basis of the defendant's version, there is no evidence that the plaintiff was or ought to have been aware of the presence of the car so close behind as to make it unsafe for her to stop a second time.
25. But overall, there is simply no suggestion of any reason why the plaintiff would have stopped after moving off, other than a deliberate attempt to cause an accident, which hypothesis I unhesitatingly reject.
26. I am not persuaded that the plaintiff's version of the accident was not correct, nor that she was in any way at fault so as to contribute to her damage.
27. She spent about 5 days in bed after the accident. On 23 February 1989 she went to the Melba Health Centre, where she complained of headaches, sore neck and back, and dizziness. Dr Ahearn noted that her neck was normal on examination, although her reactions were exaggerated. There was no complaint of chest pain. She was told to continue with the soft collar, and was referred for physiotherapy. She said that she underwent the physiotherapy, but did not benefit greatly from it.
28. On 2 March 1989 she saw Dr Ahearn again. She was not wearing the collar, and he noted that she had not been to physiotherapy. That apparent conflict was not resolved. She was having headaches every day, and complained of a painful neck, and pain rotating down her left arm. Again, there were no complaints of chest or lower back pain. She told Dr Ahearn that she wanted to get back to work in 4 days time. Her neck was tender. She had slow movement, but movements were complete.
29. She went back to work on 6 March, and said that she was still feeling pain in her chest and back. She felt badly at the end of a day's work.
30. She saw Dr Ahearn on 6 April 1989, but made no mention of her neck.
31. On 20 April 1989 she was involved in another motor car accident. Again, her version of what happened was controverted.
32. She gave evidence that she drove into a petrol station in Belconnen. The station was busy, and she had to wait for a free space. When she moved to a space it was not for the correct sort of petrol, so she began to move forward to the correct bowser. As she did so she felt a further impact from the back. Her car was moving forward slowly at the time of impact.
33. She said that the damage caused by the earlier accident had by then been repaired, and that the left rear light was damaged again. She made a claim on her insurance. She said in evidence that she was not injured at all in this second accident.
34. Dr Ahearn however reported that she consulted him on 9 May 1989. He understood her to say that she was at a petrol station waiting to get petrol when another car ran into the back of her car. She told him that very little damage had been done to either car, but she complained of headaches and a sore neck. On his examination the neck was basically normal, she had full movement, but again demonstrated an exaggerated response to palpation. There was no muscle spasm. He referred her for physiotherapy, but there is no evidence whether she underwent it.
35. He saw her twice thereafter, on 17 May and 9 June 1989, and on neither of those occasions did she complain of any pain to her neck.
36. In his opinion both accidents were minor, the injuries were not serious, and he thought she had fully recovered from both accidents by 9 June.
37. Dr Ahearn gave evidence. According to his records the plaintiff had a long history of epigastric pain before 1989. It appeared to be related to stress. She had complained of thoracic back pain in March 1988, after a fall. The first complaint she made to him of chest pain was on 17 August 1989. His notes show that she complained of having had chest pains for 3 years, but that they had been worse for 2 weeks. X-rays were ordered, which disclosed no abnormality. He gave a work certificate for 2 days. On examination on 21 August the muscles were tender.
38. The only physiotherapy treatment of which he had a record was by a private physiotherapist, Margaret Healy, on 10 June 1989, and that was with neck pain. When he had seen the plaintiff she had been accompanied by an interpreter, possibly her daughter. Any attempt he might have made to communicate with her without an interpreter had not been very successful.
39. Apart from the 2 days off with the chest pain in August, the plaintiff does not appear to have lost any time off work after the April accident. She gave evidence that she was able to work, but that by the time she finished after 3 o'clock she had a lot of pain.
40. The defendant's case was that the plaintiff was deliberately playing down the severity of the second accident, where she was to blame, and maximising that of the first, in order to enhance her claim.
41. In cross examination it was suggested to her that in the second accident she backed into the other car. It was also suggested that she was being evasive in responding to that question. There was clearly some misunderstanding on her part, which I attributed to the processes of translation, rather than to a deliberate attempt to avoid responding to the suggestion. But at the end of a confused and confusing series of questions and answers, in answer to the question whether at the time of the actual impact her car was going forwards or backwards or was stationary, she responded, through the interpreter, "It was going backwards, I think." She denied driving 3 metres back into the other vehicle.
42. A Mr Hyland, the driver of the other car involved in the April accident, gave evidence that he followed the plaintiff into the petrol station. He stopped to see which bowser he could go to, while she kept on going to a bowser that she was not able to get into. She then reversed back into him. He was stationary. There was $2,000 worth of damage done to his car. He suffered no injury. There is no reason to doubt his evidence. The accident was witnessed by Mrs Galice, who also said that the plaintiff backed into the car behind. I accept that the second accident was caused by the plaintiff. But it is also clear from the evidence of Mrs Galice that it was a very minor collision. She described the plaintiff's speed as "just a slow walk".
43. The defendant also called a loss assessor, who in March 1989 had inspected the plaintiff's car. He observed some old damage at the rear on the right hand side, but assessed the cost of repairing the recent damage at $514.00 plus parts.
44. On 7 July 1989 he again inspected the same vehicle. The repair work had not been carried out. There was more recent damage to the other side at the rear. He assessed the cost of repairing the effects of both accidents at $1,243 plus parts. There was some overlap between items, but his estimate was of the order of $697.90 for the first accident and $1,346.47 for the second, inclusive of parts. That order of difference is not very significant to my mind.
45. It is clear that the plaintiff's evidence was not correct when she insisted that the damage caused in the first accident was repaired before the second accident happened. It is at least possible that her reason for insisting was that she perceived a weakening of her case if she conceded that the second accident had caused more expensive repairs than the first. That reflects upon her credit worthiness. But I am not prepared to infer that she must have suffered more physical injury in the second accident than she did in the first. I do accept, on the basis of Dr Ahearn's evidence, that she suffered some exacerbation in that second accident of the effects of the first. That also is contrary to her evidence that she did not suffer any ill effects from it, which also reflects upon her credit. But in order to decide on the causation of her later problems it is necessary to set out her further history and more of the medical evidence.
46. Although she consulted Dr Ahearn after the second accident, it was not until nearly 3 weeks later, and she lost no time from work as a result of it.
47. She said that she was not satisfied with the attention she thought she was getting from Dr Ahearn. She consulted Dr Berenson, who first saw her on 12 January 1990.
48. She complained to him of neck and chest pain, which she attributed to the February accident. On examination she had restricted neck movement, in that she could not look upwards. Other movements seemed relatively free. There was an increased right biceps jerk, and she was tender over T6, and over the mid sternum. He ordered x-rays and referred her for physiotherapy. He prescribed Voltaren.
49. X-rays of the cervical and thoracic spine were normal. The report on the sternum was that there was probably an impacted, minimally displaced fracture through the lower third. The fracture was not well seen, an isotopic scan was suggested in order to verify it.
50. She went back to Dr Berenson on 20 March 1990, complaining of epigastric pain. He organised an endoscopy, which showed an acute gastritis consistent with reaction to Voltaren.
51. She stopped work on 20 March 1990. She said that the reason was the pain in her chest, back and neck, and headaches.
52. Dr Berenson gave evidence that he advised her to stop work because it was giving her pain.
53. At his review on 2 April 1990, Dr Berenson noted supraclavicular tenderness. The report on the bone scan of 30 March showed only minor irregularities. The radiologist's impression was that if there was a fracture in the sternum it was old and well healed. Because the bone scan had not positively demonstrated a fracture of the sternum Dr Berenson injected a local anaesthetic at the trigger area, which gave a good response. She was also complaining of low back pain and left leg weakness since ceasing work, because she was now sitting for longer periods. He found tenderness over L5/S1 and arranged x-rays.
54. During 1990 he considered her major problem to be the pain in the chest wall and thoracic spine.
55. Dr Andrews, consultant neurologist, examined her for the defendant on 21 August 1990. He was told about the two accidents. He reviewed a series of bone scans, x-rays and CT scans, one of which raised the possibility of an undisplaced minor fracture of the sternum at the lower end.
56. She demonstrated severe restriction of movement on examination, which he described as voluntary. His diagnosis was that she had suffered soft tissue injury of some significance, but that there was a lot of functional overlay. He did not think there were any ongoing major problems, and believed that she was fit to return to her normal work.
57. Dr Berenson referred the plaintiff to Dr Chandran, who saw her on 1 November 1990. She told him that after the first accident she had pain in the chest, along the right side of the neck and in the lower back. He found no neurological deficits or evidence of restriction of spinal movements. He ordered an MRI scan, which showed some signs of degeneration in the cervical discs, but no nerve root compression. He discussed discography and surgery, but reported that the plaintiff preferred conservative treatment. In November 1990 Dr Chandran attributed the chest pain to a fracture of the sternum, which was healing, but might leave some pain depending on other circumstances.
58. Dr Andrews re-examined her on 2 April 1991 with an interpreter. A slight abnormality at C5/6 on a recent MRI scan did not suggest to him any problems.
59. She also told him that Dr Chandran was discussing surgery to her cervical spine. I think it is clear that she had misunderstood something that Dr Chandran had said, rather than engaging in a planned campaign of deliberately dramatising and exaggerating her disability.
60. Again, on examination, there was voluntary restriction of neck movement. There was no localised tenderness.
61. He thought it probable that she was exaggerating, and that there was no significant cervical pathology that prevented her from returning to work.
62. Dr Chandran reviewed her in August 1991. She had extensive symptoms in the neck, chest and mid thoracic spine, and was acutely tender over the anterior chest wall over the sternum. He reported to Dr Berenson that he found it difficult to accept that a fracture of the sternum should still be causing problems two years later. There was no evidence to him of neurological deficits or restriction of spinal movements. The MRI scan did not show a significant problem in the neck. He felt that she was exaggerating her pain and disability.
63. Dr Chandran did not give oral evidence. Dr Berenson seemed to think that there had been a communication problem between him and the plaintiff. He got the impression, though it does not appear from Dr Chandran's reports, that Dr Chandran was contemplating an operation on the neck, whereas in Dr Berenson's view the major problems related to the chest wall and thoracic spine.
64. Dr Berenson injected the trigger points on the sternum with local anaesthetic, sometimes with temporary relief, sometimes with no effect. He decided to refer her to Dr Tharion, a cardio thoracic surgeon.
65. Meanwhile, on 7 August 1991 she was examined for the defendant by Professor Richard Gye, the Emeritus Professor of Neurological Surgery at the University of Sydney. Unfortunately, at this examination no interpreter was present, and he was obliged to rely on copies of reports and his own observations.
66. In his opinion she had suffered in the February 1989 accident:
1. A muscular and ligamentous strain of her cervical and mid$P
thoracic spine.
2. A possible muscular and ligamentous strain to her lower
back.
3. A possible soft tissue injury in the region of her
sternum.
67. She exhibited a functional overlay which was demonstrated by the distribution of the sensory impairment over her right hand and forearm, which had no neuro-anatomical basis to it and was classically functional in type.
68. She should also have made a complete recovery from a soft tissue injury of the sternum. He did not think there was evidence of any significant fracture of the sternum.
69. She was physically fit for work. From the point of view of functional symptoms the prognosis was guarded.
70. There was no evidence called by either side from Dr Tharion, but reports in Dr Berenson's file indicate that he saw her first on 26 September 1991, and later advised her that an operation could give her symptomatic relief. She accepted that advice and he operated to remove the cartilaginous joint at the junction of the ribs and sternum. The intention was to alleviate the chest wall pain. Unfortunately the operation did not improve her chest symptoms.
71. The operation was done in November 1991, and the plaintiff spent 5 days in hospital.
72. Dr Berenson then referred her to Dr Lithgow, an anaesthetist who specialises in pain management. He saw her for the first time on 18 May 1992. Her major complaints related to pain in the central chest, left side of chest and central thoracic spine. He found her difficult to assess. The radiographic evidence revealed little by way of pathology, but it was not possible to examine her adequately because of her marked response to palpation over a wide area of her back. He could not offer any specific treatment, but referred her to Anne Just, a psychologist in his pain management clinic, for assessment and initial counselling in pain coping strategies. He was concerned about the difficulty in communicating with her adequately, because of the language barrier.
73. Dr Lithgow gave evidence that pain may be divided into two categories. One is where there is actual tissue pathology to which it relates. The other is neurogenic, which may have been initiated by something in the periphery but is an activity in the central nervous system. It does not necessarily follow that, because no physical damage could be detected in an area of the body, a complaint of pain related to it by the patient is not genuine.
74. The test carried out by Dr Griffin on 25 June, of injecting local anaesthetic to the facet joints at T5 and T3, if it resulted in an expected time during which pain was relieved, tended to suggest that there was tissue damage in that area. He had not carried out such diagnostic tests himself. So far as the sternum was concerned I note that Dr Berenson's injections sometimes gave diagnostic relief, and sometimes did not.
75. When asked by her counsel:
"If you assume that this chest pain and back pain occurredat
the time of the accident or shortly afterwards, what76. Part of the difficulty in this case is that there is not a clearly detailed history of pain in the sternum at the time of the accident, or until the following August, though the plaintiff did give some evidence of it, and the seat belt provides a possible mechanism for having caused damage in the area. There is even less evidence of a temporal connection between the accident and pain in the thoracic spine, and no such obvious mechanism for its causation, since the accident was a relatively minor rear end collision.
relationship would there be between the ongoing complaints
of pain and that motor vehicle accident?"
Dr Lithgow naturally answered:
"I think there'd be a strong correlation between the two."
77. The plaintiff saw the psychologist, but did not return to see Dr Lithgow until 8 September 1993, at the request of her solicitors. Her condition was basically unchanged, although the tenderness on palpation over the thoracic spine was more localised than it had been.
78. In his evidence Dr Lithgow accepted that the plaintiff suffered pain. He had no reason not to accept that. His dilemma was the extent to which her pain was caused by tissue damage, to what extent it was neurogenic, and to what extent it was being made worse by environmental and emotional factors.
79. Inconsistency in the pattern of complaints did not necessarily indicate exaggeration to him, because central neurogenic pain mechanisms can fluctuate quite markedly. Emotional factors also can alter pain modulation and can increase pain.
80. Sister Just has formal qualifications in nursing and extensive experience as well as further studies in pain management. She has been seeing the plaintiff for counselling about once every month or two months since 18 June 1992. She reported that the plaintiff took an interest in the pain coping strategies presented to her and gave her the impression that she was working on her rehabilitation to the best of her understanding and capability.
81. Over the vigorous objections of counsel for the defendant, Sister Just described the plaintiff's condition as showing signs of a post traumatic stress disorder. I do not regard that statement as being the sort of clinical diagnosis that a consultant psychiatrist would be qualified to give. I think that the symptoms and signs that she observed were more important than any label that might be used as a convenient description of them. To her observation the course of her treatment had been moderately successful. She expected to see the plaintiff over about five or six more sessions, when she will have done all she can for her. I take that to mean that the plaintiff will not be cured of such pain as she has, but that she will be better able to cope with it, and her emotional state will be exacerbating her pain less, in the context of Dr Lithgow's description of the effect of emotion on pain.
82. After he received the reports from Dr Tharion and Dr Lithgow, Dr Berenson thought that there was nothing more that could be done for the plaintiff by physical therapy. He has continued to see her regularly, and to give her pain killers.
83. Of the doctors who gave evidence he was the one who had seen her most
often. He found the process of communicating with her
very frustrating. He
commented:
"You had to sit there with an interpreter and even then she84. I observed the plaintiff over some time as she gave evidence, which she did with the assistance of more than one interpreter. I agree with Dr Berenson's comments. I think that there could be a danger of doing injustice to her by coming too readily to the conclusion that inconsistencies in histories that she gave to doctors necessarily demonstrated untruthfulness or a lack of frankness.
would still nod at the wrong times until we got the message
across to her. She is very difficult to communicate with."
85. Dr Berenson considered that her overall condition, and more particularly her chest wall problem, would make it difficult for her to function at work, or perform heavier household chores.
86. His examination in chief concluded:
"MR LUNNEY: Did you think there was some psychologicalextent,
contribution to her ongoing disability?
DR BERENSON: Yes.
MR LUNNEY: To what extent? What was the nature of it?
DR BERENSON: She's a very anxious lady. She's scared of
pain. She's probably depressed, to some extent,
but again, the language problem does make it
very difficult to get your teeth into that sort
of issue with her.
MR LUNNEY: Have you noticed anything about her manner of
presentation of symptoms?
DR BERENSON: Yes, she tends to exaggerate it, to some
but there is always something underlying herso
presentation. To give you an example, even
trying to put an injection into one of these
sore joints, it's a major event. She carries
on. She has a lot of fear, but I put some of
that down to culture, and I put some of it down
to anxiety.
MR LUNNEY: Has she been consistent in the presentation of
her symptoms over the time that you've been
treating her?
DR BERENSON: Yes.
MR LUNNEY: What did you think the future holds for Mrs St
Jean in terms of the disability that she is
complaining about at the moment?
DR BERENSON: I accept that she's in genuine pain and I
believe it's interfering with most things that
she wants to do.
MR LUNNEY: So what do you think the future holds for her?
Do you think this is going to go on ...?
DR BERENSON: Retirement.
MR LUNNEY: ... forever or do you think there will be some
amelioration of the condition in the future?
DR BERENSON: I think the chest wall pain has been there for
long that we are dealing with a chronic pain87. In cross examination Dr Berenson again stressed the difficulty in communication, and the effect that it had on the completeness of his clinical notes.
syndrome. I don't believe it's going to
disappear. We may be talking a number of years,
we may be talking indefinitely."
88. His clinical impression, plus the x-rays, led him to the conclusion that she had suffered significant trauma to the chest, that the line on the x-ray of the sternum indicated a fracture, and that with the tender sternocostal junction next to it the story became consistent. He also thought that the absence of any recorded complaint of chest pain between the visit to the hospital and the visit to her then general practitioner six months or so later was not inconsistent with his diagnosis. Other pain might have been distracting her attention from the chest pain. Language difficulties could explain the absence of recorded complaint.
89. On the other hand, when asked to comment on Dr Chandran's view that she
could not now be experiencing pain from a fractured sternum
he responded:
"She is not experiencing pain from the fracture; she is90. I should also comment that Dr Berenson did not strike me as being the sort of doctor who was likely to have given the plaintiff a certificate for 3 months off work unless he was convinced that she was incapacitated. But he saw nothing inconsistent in her doing some cleaning work after she had stopped work at the laundry. He commented:
experiencing pain from the facet joint and the costochandral
junctions."
"That's just this lady. That's the way she works."91. On 8 July 1992 the plaintiff was examined for the defendant by Associate Professor Jones, an eminent consultant in rehabilitation medicine. He had the assistance of an interpreter. She told him she was taking medication for headaches, pain in the middle of the back of her neck, and for chest pain.
92. On examination he found that all movements of neck and back were normal, and there was no abnormality in pin prick sensation in her arms. There was however an extreme reaction to palpation on the sternum and back.
93. He did not have any x-rays available at the time, but saw reports of Dr Andrews referring to them.
94. His opinion was that there was no organic abnormality, and that the plaintiff was capable of her normal personal, social and domestic activities, and would be capable of returning to her former work. She needed encouragement and vocational rehabilitation to help her to return to such employment. He thought it unlikely that she could acquire language skills sufficiently for a clerical role.
95. When giving evidence he was shown photographs of the defendant's car, showing the damage done to it in the accident. He expressed the view that he would be surprised if the plaintiff had suffered severe fractures or even severe soft tissue injuries in a collision that caused such minor damage.
96. He was asked to assume that during the year after the accident she continued to work at her job in the laundry, and also worked from time to time at a second job, doing cleaning work for 4 hours a night, 5 days a week. He thought it very unlikely that someone who had anything other than the most minor type of whiplash injury, particularly a fractured sternum, would have been able to carry out that work.
97. Professor Gye re-examined the plaintiff on 23 March 1993, this time in the presence of an interpreter. Since his previous examination she had undergone the operation by Dr Tharion. Her complaints were of pain in the chest, neck, thoracic spine and low back. She seemed to him to be exaggerating her symptoms. On this occasion she exhibited a glove sensory impairment in her left arm up to the elbow, and a stocking impairment of her left leg up to the mid thigh. Again, this form of impairment was functional, and had no neuro-physiological basis.
98. His opinion remained unchanged, in that she might have suffered a musculo ligamentous strain of her neck, mid thoracic spine and lower back. There was no indication for any further investigation or treatment, and she was fit for work.
99. On examining the relevant x-rays, he could find no evidence at all of a fracture of the sternum. He also explained why, in his view, a blow applied to the front of the chest would not be transmitted to the facet joints at the thoracic spine. The x-rays and not demonstrate any bony abnormality in the thoracic spine. Nor was it likely that any direct injury to the thoracic spine would be felt as referred pain in the front of the chest in the way described by the plaintiff. There would have been an area of loss of feeling in the area supplied by each intercostal nerve as it runs around the chest wall.
100. Given the history of her early complaints at the hospital and to Dr Ahearn he thought it unlikely that there had been a fractured sternum.
101. If there had been sufficient force in the accident to have thrown the plaintiff forwards and backwards there could have been musculo ligamentous injuries in the area of the thoracic spine. However, he would not have expected that type of injury to have lasted for as long as the plaintiff claimed.
102. The differences between the location of the sensory impairments she demonstrated, on the first occasion in one arm, on the second in an arm and a leg, but on the opposite side, and the complaint of pain in the lower back on the second occasion but not on the first, led him to form the opinion that she was exhibiting a fabricated sensory response. The difference between 30 degrees on a straight leg raising test while lying down and 90 degrees when sitting up also indicated gross exaggeration.
103. On the other hand, it was quite possible that she had received soft tissue injuries both in the sterno-costal and the thoracic spinal regions, even though he would have expected them to have resolved. He thought it unlikely that Dr Tharion's operation would be giving rise to symptoms in the area, though it was possible.
104. Dr Andrews re-examined the plaintiff on 19 April 1993. He had examined the more recent radiological evidence, and reports by a number of other specialists. He noted slight restriction of right lateral rotation of the neck. There was global weakness in the hands, which he interpreted as functional. There was full straight leg raising. He could see no evidence of serious injury to the cervical spine, and thought that with appropriate motivation and rehabilitation she should be able to return to work.
105. In evidence he expressed the view that her functional symptoms were voluntary.
106. Her solicitors asked for a report from a psychiatrist, Dr Glaser, who saw her on 3 May 1993, with the aid of a competent interpreter.
107. She told him about both accidents, and said that the effect of the second was to aggravate her back and neck pain. The operation had eased her chest pain, but the pain in the back had been constant. Psychologically, she complained of bad nerves, lack of confidence, disturbed dreams and poor sleep. She tended to be tearful, and felt useless.
108. He thought that there was good evidence that she was suffering a post traumatic stress disorder, and that it was possible that her psychological symptoms made her perceive her physical problems as being worse than they really are.
109. There had been significant upheaval in her life over the previous 10 years to which she had been adjusting well, but the two motor vehicle accidents had made at least a partial contribution to a moderate degree of psychological distress. Her condition could be improved with appropriate medication and counselling, but it was likely that she would be left with a mild, permanent psychological impairment.
110. Dr Glaser gave evidence by telephone and was cross examined. I agree particularly with his comment that there is no direct correlation between how a person subjectively perceives an accident and the actual extent of mechanical damage. But in summary, in his oral evidence there was nothing significant to me that added to or subtracted from his written report.
111. The defendant's solicitors referred her to Dr Tym, psychiatrist, for his opinion. He saw her on 21 May 1993, also with an interpreter.
112. She told him about both accidents, describing the second as one in which she was hit from behind while stationary, but as less violent than the first.
113. He could find nothing clinically abnormal about the plaintiff's mental state, and there was simply no evidence of any mental or behavioural disorder, now or in the past. In particular, he found no evidence of any post traumatic stress disorder.
114. He reported there was considerable evidence of gross conscious exaggeration of pain and disability, but I think that in coming to that conclusion he was relying on the reports of other doctors which he had read, which included Dr Andrews, Professor Gye and Professor Jones as well as Dr Berenson and Dr Chandran, even though he did have experience and qualifications in neurosurgery, and carried out his own physical examination.
115. In his evidence he made it clear that his concept of Post Traumatic Stress Disorder was a more significant one than Dr Glaser's. If the plaintiff felt uncomfortable, felt apprehensive, had nightmares and lacked confidence, he could understand those complaints, and they would be reasonable. But in his judgment they did not amount to a psychiatric syndrome or disorder.
116. When asked about her going back to work after the accident, and then giving it up later, he responded that he was sure she was suffering, and that it was uncomfortable for her to work, but was not sure that she was suffering to such an extent as made it impossible for her to work. She appeared to him to be fit for work.
117. The other matter that was much agitated at the trial was the plaintiff's employment history before and after the accident, the periods in respect of which she received Social Security payments, and the income that she disclosed to the taxation authorities.
118. The first of those matters obviously has a bearing on the extent of her injuries and her ability to work. The other two, it seems to me, are relevant only to her credit. In that context I would comment that, more often than not, group certificates are fairly accurate about the period for which an employee has been working, but that the documents from the Department of Social Security, although reliable with respect to the amount of money paid, are often not a very good source of information about the period in respect of which the payments were made. They show on their face the date that benefit was first paid and last paid, but that is by no means the same thing.
119. The plaintiff tendered her tax return for 1988/1989. Group certificates with it show that in that tax year she was employed by the Hospital Services Division from 26 August 1988 to 30 June 1989.
120. There is also a group certificate issued by Berkeley Challenge Services Pty Ltd for the period 3 April 1989 to 18 May 1989, showing the employee's name as Gladys Saint Jean.
121. A departmental Statement of Benefit shows that she received a first payment of a benefit on 11 July 1988 and the last on 30 November 1988.
122. The 1989/1990 tax return contains a group certificate from the Hospital Services Division for the period from 1 July 1989 to 30 June 1990, another from City Group Pty Ltd for the period from 11 July 1989 to 18 August 1989 and a third from Taxopo Pty Ltd from 8 December 1989 to 23 February 1990.
123. There is also a Statement of Benefit for payments between 12 April 1990 and 21 June 1990.
124. The plaintiff gave evidence in chief that she did some cleaning work in addition to her job at the laundry, both before and after the accident, but she could not possibly remember dates. She also agreed in chief that she worked for Taxopo after ceasing work at the Hospital Services Division. She said, "I know it was a few months afterwards, but I cannot remember the exact dates".
125. She said also that she did not work after 1 July 1990 and that she did not prepare or file any tax returns after that date. She was receiving income since then from the Department of Social Security.
126. Her reason for stopping work was the pain in her chest, back and neck and headaches.
127. That was the picture painted in Evidence in Chief.
128. It was not the same as the picture painted in answers that the plaintiff swore to interrogatories. However, counsel for the defendant sought to use that fact in a way which seemed strange to me. Instead of tendering the answers and relying on the inconsistencies, he sought an order of some sort to require the plaintiff to amend them. That seemed to me to misconceive the purpose of interrogatories, although they seem sometimes to be used as if they were answers to a request for particulars that happen to be verified on oath. In cross-examination, she agreed that to the question "Have you worked in any occupation since the accident?" she answered, "No, excepting for the year worked with the ACT Community and Health Service as already advised". Her attempt to explain the discrepancy was confused and confusing. It may have been the result of misunderstanding. But the discrepancy is a fact to be taken into account.
129. The additional information that emerged from cross-examination and documents tendered by the defendant was as follows.
130. The plaintiff arrived in Australia on 20 March 1987. At first she agreed with the proposition that the first job she got was with the Linen Service in August 1988.
131. Later, when asked whether she ever worked under the name "Candia" she said that in 1987 she was offered a cleaning job as a trial. She was asked for her name and gave "Gladys del Carma St Jean Candia", which the employer thought was too long, so he put "Gladys Candia". She worked for him for 15 days, at the end of which he told her that she was no good at the job. She had never worked as a cleaner before. She said that the name of the company was Berkeley Challenge, and that later, when she learned how to do a cleaning job, she worked again for the same company.
132. She was shown a book, produced on subpoena from the records of a company called Taxopo Pty Ltd and admitted in evidence as exhibit 14. It contained entries showing that "Gladys" was paid at the rate of $290.00 a fortnight from the period ending 11 September 1987 through to 11 March 1988 and then lesser amounts through to 2 December 1988.
133. The same book contains an entry showing the employment of "G Saint Jane" (sic) on 9 February 1990. That entry is consistent with other Taxopo books, exhibit 24 and exhibit 1.
134. She was cross-examined about the entries in exhibit 14 for 1987 and 1988
as follows,
"MR STEELE: But you started work in September of 1987working
for Taxopo doing cleaning work, didn't you?I
THE INTERPRETER: I remember, yes, I have done jobs in 1987 -
can't remember the month.think
MR STEELE: I suggest - I withdraw that - you worked for
Taxopo from September 1987 through to June 1988?
THE INTERPRETER: I don't remember the time.
MR STEELE: You worked on a regular basis every week, didn't
you?
THE INTERPRETER: I remember that I did a cleaning job I
it was in Phillip, somewhere there, but I can't remember for'88
how long.
MR STEELE: You worked from September '87 through to June
and earned over $5000, didn't you?you?
THE INTERPRETER: I don't remember the length of time.
MR STEELE: You worked every week for nine months, didn't
THE INTERPRETER: It could be.evidence
MR STEELE: And, Mrs St Jean, you lied when you gave
before this court on the last occasion and didn't tell theremember,
court anything about that, didn't you?
THE INTERPRETER: I didn't tell you because I didn't
I had no intention of lying, my memory is not that good.or
MR STEELE: And, Mrs St Jean, you never put in a tax return
for that money?
THE INTERPRETER: Because the gentleman who gave me the job
there from Taxopo, they never gave me any document or tax -
group certificate or I never sign anything. I was justnewly
arrived, I didn't know the system, I didn't know how youwork
about."135. With many witnesses one could be justifiably suspicious about such answers.
136. But other evidence demonstrates that over the latter part of that period she was working for the Hospital Services Division from 26 August 1988 and for Berkeley Challenge from 9 August 1988. I doubt that she ever had three jobs at once. There is nothing in exhibit 14 to identify "Gladys", and nothing to suggest that the Gladys who was paid $220.00 on 12 August 1985, and $200.00 on 26 August 1988, 9 September 1988 and 23 September 1988 was identical to, or different from, the Gladys who was receiving moneys in earlier fortnights. There are two pages with entries relating to 11 March 1988, and on each of them the name "Gladys" appears twice. Exhibit 14 does not purport to be a properly kept wages book. The three books that make up exhibit 1 do at least show a dissection of hours, gross pay, tax and union deductions and net pay, and also a surname, though there are no signatures. There are no entries relating to any name that resembles the plaintiff's name in respect of the period from 27 August 1987 to 31 December 1987, covered in one of them, or of the period from 1 July 1988 to 30 December 1988 in another.
137. I think it would be unwise to draw any inferences adverse to the plaintiff from any of the entries in exhibit 14, despite her seeming concessions about them in cross-examination.
138. Exhibit 13 shows that on 17 July 1988 she applied for a night time, part time cleaning job with Berkeley Challenge Property Services Pty Ltd. She signed the application in the name of "Candia", and produced for identification purposes her Chilean passport, which showed her full correct name.
139. Exhibit 12 is a copy of a group certificate showing that between 17 July 1988 and 5 April 1989 she was paid by Berkeley Challenge Pty Ltd $8,292.00 in gross salary, from which $1,328.50 was deducted in tax instalments. That is consistent with the copies of her bank statements over that period, exhibit 22 and the institution list produced by Berkeley Challenge, showing payment of her salary into her account with Westpac Bank.
140. The reliable evidence therefore shows that she started regular employment with Berkeley Challenge on 17 July 1988, and with the Hospital Services Division on 26 August 1988. It is quite possible that her receipt of Social Security benefits between 11 July 1988 and 30 November 1988 was in respect of a period when she was in fact unemployed, before 11 July 1988. To my mind her receipt of those benefits for that period does not give rise to any inference adverse to her.
141. On 3 April 1989, just six weeks after the accident, she applied to Berkeley Challenge for a cleaning job, again part time and at night, but this time under the name "Saint Jean Gladys". As identification she produced a driver's licence in that name and arranged for payment to be made to an account with the National Australia Bank. In that application the answer "No" was circled to the question whether she had any back or neck injury. The Berkeley Challenge Institution book, exhibit 21, and the group certificate in her tax return, exhibit A, show that she worked in that name for that company from 3 April 1989 to 18 May 1989.
142. She was not asked in terms why in April 1989 she changed her name with her employer and changed her bank. It was suggested that she was concealing her earnings from the taxation authorities and that she was receiving money from the Social Security Department. She replied that she submitted a form and her pay slips and said she was told to change the name because of a tax file number.
143. There is no evidence that during that tax year she received Social Security payments after 30 November 1988.
144. She did not disclose to the Taxation Department the income she received from Berkeley Challenge before April 1989 but neither did she claim or receive any benefit in respect of the taxation instalments deducted from her wages. I do not think that she was engaged in a conscious effort to mislead anyone, though it is quite understandable that the documents aroused the suspicions of the defendant's legal advisers.
145. Her receipt of Social Security benefits after she began work, and her undisclosed employment by Berkeley Challenge up to the date of the accident are relevant only to her credit, and I do not regard those facts, or her answers in evidence about them, as having any significantly adverse effect upon the weight that I give to her evidence.
146. It is also quite possible that she was not responsible for the filling in of the form exhibit 11 in such a way as to deny having suffered any injury.
147. The fact however that she continued to work at the laundry and also, at various times, with Berkeley Challenge, City Group and Taxopo after the accident is of course very relevant to the question of the extent of her injury.
148. Exhibit L is a letter from the Staff Clerk of the Community and Health Service, which corroborates the fact that she did not work at the laundry from 20 February 1989 to 6 March 1989.
149. On the other hand, wages were paid into her bank account over that time
as follows:-
7 February 1989 $350.20150. Having regard to Dr Berenson's remarks and to those receipts it is quite possible that she continued to do her cleaning job even while she was absent from work at the laundry.
21 February 1989 $365.95
7 March 1989 $739.68
21 March 1989 No entry
4 April 1989 $430.71
151. She then attended work continuously at the laundry from 6 March 1989 until she stopped, on Dr Berenson's advice, on 20 March 1990.
152. She received income from her job as a cleaner with Berkeley Challenge from 3 April 1989 to 18 May 1989, with City Group from 11 July 1989 to 18 August 1989 and with Taxopo from 8 December 1989 at least until 23 February 1990.
153. The group certificate from Taxopo, which she lodged with her tax return, was issued on 30 June 1990 and shows that period of employment ending on 23 February 1990.
154. But the so-called Attendance Book, exhibit 24, and the more detailed
wages book, exhibit 1, produced from Taxopo's records,
show the following
payments to "G Saint Jane".
Exhibit 24 Exhibit 1155. Taxopo also issued a group certificate dated 5 July 1991, showing the correct name and address of the plaintiff. In it the period of employment was shown as from 1 July 1990 to 10 August 1990, the gross salary as $1,956.16 and the tax instalments deducted as $238.70.
9 March 1990 $380 380.70
23 March 1990 $376 376.26
6 April 1990 $337 336.80
20 April 1990 $330 329.79
Undated $337 4 May 1990 337.30
16 May 1990 $337 337.30
30 May 1990 $337 1 June 1990 337.30
15 June 1990 $333 339.09
29 June 1990 $544 544.02
156. Exhibit 1 shows the payments made to "G Saint Jane" over that period as
follows,
Gross Tax157. The totals are $1,213.66 gross and $160.30 tax. They are not consistent with the details on the certificate.
13 July 1990 $665.98 $111.20
27 July 1990 $392.70 $ 49.10
10 August 1990 $157.08
158. But there are two further entries in exhibit 1, for 5 October 1990, (gross $390.40, tax $48.40) and 25 January 1991 (gross $350.00, tax $30.00), which if added to the other three amounts give totals which are consistent with the group certificate, even though the period of employment is not.
159. If the "G Saint Jane" in those documents was in fact the plaintiff, there is no evidence of any reason why the company issued inaccurate group certificates.
160. One factor that tends to reduce the force of any inference that the entries in those two books demonstrate that the plaintiff was physically working as a cleaner over the whole of that period is that counsel for the defendant took care to ensure that the plaintiff produced her passport, and then tendered it. The entries in it demonstrate the truth of her evidence that she left Australia on 4 April 1990, entered Chile on the same date, left Chile on 25 May 1990 and re-entered Australia on 27 May 1990.
161. One explanation might be that she was also telling the truth when she said that after she returned from Chile she went with one or other of her children and attended while they did the actual work. The responsible officers of Taxopo do not seem to have been so addicted to meticulous bookkeeping as to worry about who did the work, or in whose name the wages were received, so long as the work was done.
162. This evidence was corroborated by the plaintiff's daughter, Tania Gutierrez, who said that when her mother went to Chile she had already been doing the job, and she continued doing it while her mother was away and after she returned. She was sometimes helped by her brother, Alex Gutierrez, who also gave evidence to the same effect. She and her brother differed in some details about the arrangement during cross-examination but I saw no reason to disbelieve them on the main issue.
163. I do not agree with the suggestion made that the plaintiff entered into that arrangement with her children in order to mislead the Social Security or taxation authorities. The usual way of doing that is for the dishonest beneficiary to do the work in someone else's name, not have someone else do the work in the beneficiary's name. And it was hardly avoiding tax when tax was being deducted by the employer.
164. The plaintiff insisted that she did not do any physical work herself for Taxopo after returning from Chile. Overall, I think it is probable that she did little, if any, cleaning work after she stopped work at the laundry on Dr Berenson's advice.
165. In weighing up the plaintiff's evidence, it must be said that she is a poor historian. Partly that is obviously the result of the dangers of translation. Tania commented that Dr Berenson was not always satisfied with her efforts as an interpreter. During her evidence even professional interpreters had difficulty in conveying meaning to her or interpreting her responses. But partly I also think that she genuinely does not remember dates and periods during which events happened with any confidence or accuracy.
166. To some extent, but not entirely, the incorrect answers that she gave to her interrogatories could be attributed to those two considerations. It may also be that those advising her had not been as meticulous in investigating her employment background as lawyers should be before allowing a client to swear answers to such interrogatories.
167. But there were still enough indications to require caution in accepting her evidence. She obviously gave an inaccurate description of the second accident, trying at first to give a version of it that most favoured her case. She also engaged in sometimes grossly misleading exaggeration when describing or demonstrating her symptoms to doctors, particularly to the consultants who examined her for the defendant. She only has herself to blame for the unfavourable impression with which they were left after seeing her.
168. It does not follow that she was not injured, and is not still suffering after-effects of her injury. But my inability to place complete reliance on her evidence raises particular difficulties in deciding on the extent of her present disabilities and the prognosis for the future.
169. The findings that I make on the whole of the evidence are as follows.
170. I do not know whether there were two impacts or one in the collision involving the defendant. In either event there was only relatively slight damage caused to the vehicles involved.
171. However, the plaintiff was probably thrown forward, restrained by the seat belt, and jerked backwards by the mechanical forces involved, or muscular reaction and contraction, or a combination of both. As a result, she suffered soft tissue injury in the regions of the neck, sternum and thoracic spine. I am not persuaded that there was an actual fracture of the sternum, but there was certainly soft tissue damage in the region.
172. The plaintiff attended the hospital and then Dr Ahearn. She was then working at two jobs. She certainly stayed away from work at the laundry until 6 March 1989, but may well have continued at least to attend at her cleaning job. There is simply no independent evidence about how much work she did there, if she did attend.
173. She was anxious to get back to work as soon as she could, and did so on 6 March 1989.
174. On 20 April 1989 she was involved in another collision, when she reversed into Mr Hyland's vehicle at slow speed at a service station. The fact that the cost of repairs arising out of that collision was greater than that attributable to the first does not persuade me that she was more seriously injured in it.
175. She did not go to the hospital, nor to Dr Ahearn until 9 May 1989, nor did she seek any more time off work following that accident.
176. It caused a temporary flare-up in her neck pain and headaches. I do not think it had any effect upon the sternal area or the thoracic spine.
177. After she changed to Dr Berenson her symptoms and complaints were dealt with more sympathetically. Although she obviously exaggerated her reactions even to him, he, just as obviously, was perfectly well aware of the sort of person she was, and treated her in accordance with his judgment about the extent of her disability.
178. She had every need to work. She wanted to work. She struggled on at her two jobs, doing the best she could with help from fellow workers. It was Dr Berenson who advised her to give up work in March 1990. I do not think that he was misled into giving her that advice by simulation of symptoms that she was not genuinely experiencing. She acted reasonably in accepting his advice and giving up work at the laundry. Her children effectively did her work for her for Taxopo.
179. Then follows the series of investigations, particularly into the damage done in the area of the sternum. None of these processes was designed or likely to persuade a person of her personality that she was getting better. Then Dr Chandran confirmed the view that there was something wrong with her chest wall, and seems to have left her with the impression that an operation on the neck might be needed.
180. There followed the operation by Dr Tharion. I have no doubt that Professor Gye would not have performed that operation, and that he was puzzled by Dr Tharion's decision to perform it.
181. But from the plaintiff's point of view she had been sent to a specialist by her general practitioner, and the specialist was holding out some hope that an operation would relieve her pain.
182. Not only was it reasonable for her to accept that advice and undergo the operation, I think that her decision shows that she genuinely perceived herself to be in sufficient pain to warrant undergoing the operation.
183. The operation had little, if any, beneficial effect. That also could hardly have persuaded her that she was getting better, or that she could go back to full time work.
184. The first attempt to deal with her functional symptoms did not really take place until Dr Lithgow referred her to Ms Just. She cooperated with the psychologist, but by this time she had been seeing herself as injured and disabled for a long time.
185. In summary, in the accident she suffered a muscular and ligamentous strain of her cervical and mid-thoracic spine, a soft tissue injury in the region of the sternum and a muscular and ligamentous strain to her lower back.
186. The cervical symptoms were exacerbated for a while in the second accident, but then became less important in the overall picture. Similarly the lower back has not continued to trouble her to any extent. If she were really malingering I would have expected her to continue to complain about those areas as well to a much greater extent.
187. There is now no demonstrable physical cause for her main complaints, which relate to the chest wall and thoracic spine.
188. The continuing pain and discomfort and course of treatment over a period of about five years has left her with genuine feelings of pain in the chest and thoracic spine. Those symptoms are not as dramatic or as intense as she pretended to demonstrate, for example, to Professor Gye. But they are, to her, genuinely real and disabling. She has suffered psychologically as a result, with unhappiness, lack of confidence and a diminished sense of self worth, though not from a clinical depression, traumatic stress disorder, or hysterical reaction.
189. To the present her genuine symptoms have been such as to make it reasonable for her not to have returned to work.
190. The future is extremely difficult to judge. The probabilities are that she will continue to see Ms Just, and perhaps Dr Lithgow. With this litigation determined she may be more easily motivated to undergo rehabilitation. Dr Berenson's view is the gloomiest; that retirement is the only option. But there was really no evidence to contravert that of Professor Jones that she is capable of returning to her former occupation, given the appropriate rehabilitation, encouragement and motivation. The first two can be purchased. The last is a matter for her, and I am not convinced that she is incapable of acquiring it.
191. The fact must, however, be taken into account, that even if she were rehabilitated, with her history she would find it difficult to gain employment within the very narrow range of her capabilities. She is restricted to unskilled physical work, being a person with limited ability in English, with a history of five years out of the work force as the result of injury, and the probability that she will continue to suffer some degree of discomfort even on the best hypothesis.
192. She is 47 years of age.
193. For her pain and suffering and loss of amenity I award $40,000, of which $10,000 would relate to the future.
194. For interest on the past component I award $3000.
195. The plaintiff was absent from work from 20 February 1989 to 6 March 1989. The parties have agreed that the appropriate rate of pay was then $270.45 net. That gives a figure of $540.90 for that period.
196. The plaintiff did not give evidence of any loss of work between 7 March 1989 and 20 March 1990, although a claim for such a loss is made in the particulars.
197. The loss after 20 March 1990 is calculated by me as follows.
20 March 1990 to 3 June 1990 at $270.45 $2897.68That makes a total for the past wage loss of $70,325.
4 June 1990 to 25 August 1990 at $279.50 $3274.14
1 January 1991 to 14 August 1991 at $286.40 $9205.71
15 August 1990 to 27 December 1992 at $294.45 $36,385.61
28 December 1992 to 7 March 1993 at $299.95 $2956.65
8 March 1993 to 18 February 1994 at $303.90 $15,064.76
TOTAL $69,784.55
198. For interest on that loss averaged at 8 per cent from 20 March 1990 I allow $22,000.
199. The defendant's insurer has paid out of pocket expenses totalling $5347.90. A further $5542.95 is agreed as to quantum. I allow $10,891 for out of pocket expenses, on the basis that the defendant will be allowed credit for $5348. No interest is awarded on the out of pocket expenses.
200. A claim was made for the value of the voluntary services provided by the plaintiff's children, but I am not persuaded that there has been anything more than a sensible rearrangement of domestic duties, which might well have taken place even had the plaintiff not been injured.
201. The future loss of income is claimed up to age 60. The present value of a loss of $304 for 13 years at 3% is $171,152. That sum should be very substantially discounted, not only for the usual contingencies, but also for the possibility that she will undergo rehabilitation and reenter the workforce. That could happen within a year. It might never happen. But it remains a distinct possibility. As a matter of discretionary judgment I award $50,000 for loss of future income-earning capacity. That sum would also cover, in my judgment, the cost of future treatment and medication.
202. The total award is therefore made up as follows.
Pain and suffering $40,000203. I direct the entry of judgment for the plaintiff for $196,216. The defendant is to have credit for the sum of $5348 already paid.
Interest $ 3,000
Past loss of wages $70,325
Interest $22,000
Out of pocket expenses $10,891
Future loss $50,000
TOTAL $196,216
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