Doris Bridget Browne v Elizabeth Anne Dudley [1996] ACTSC 40 (10 May 1996)

SUPREME COURT OF THE ACT

DORIS BRIDGET BROWNE v. ELIZABETH ANNE DUDLEY
No. SC437 of 1994
Number of pages - 18
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Negligence - Motor Vehicle Accident - Contributory Negligence - Plaintiff's Vehicle Struck from Rear at Intersection - Whether Plaintiff Suddenly and for no Apparent Reason Stopped her Vehicle after Proceeding into the Intersection - No Issue of Principle.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Cervical and Lumbar Spine Injury - Whether Plaintiff has Exaggerated Injuries - No Issue of Principle.

Arnotts v Trade Practices Commission (1990) 97 ALR 555
Miletic v Capital Territory Health Commission (unreported, Supreme Court of ACT, Higgins J, 4 April 1996)

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (HL)
Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245

HEARING

CANBERRA, 15-19 April 1996
10:5:1996

Counsel for the Plaintiff: Mr G Stretton

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr W Austron

Instructing Solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $424,482.40.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY This is a claim for damages arising from a motor vehicle accident on 26 March 1993. The plaintiff, Doris Browne, was 54 years of age at the date of the accident, and was working in the field of youth work and child care. While returning from her place of employment in Canberra to her home outside Yass her vehicle was struck from behind at the intersection of the Barton Highway and Kuringa Drive, Spence, in the Australian Capital Territory.

2. That is about the only common ground in this matter. The defendant disputed both liability and quantum, and claimed contributory negligence if liability was found. Evidence in this matter was heard before me over a full four sitting days, and Counsel addressed on the fifth. I must say at the outset that I would be concerned if this was to become the normal course for the trial of a matter such as this. However, I trust that the unusual aspects of this case will mean that such a lengthy hearing for a claim of this magnitude will continue to be the exception rather than the rule.

3. The plaintiff was born in Sydney in 1939 and attended to the equivalent of Year 9 at Hurstville High School. Evidence was given, which I accept, that she has always been dyslectic, and had difficulty with reading and clerical duties. She worked for a period from leaving school to 1957 as a laboratory assistant for a pharmaceutical firm, and then left the workforce to marry and have her family, as was perhaps the norm at that time. The plaintiff re-entered the workforce in about 1967 to the then somewhat unusual occupation of a Sydney taxi driver. She said that, at the time, she was one of the first women to work night shifts. Her first marriage ended in divorce in 1971, and in 1972 she married her present husband. From 1973 to 1978 she worked as a telephonist for taxi companies and as a driver, and in 1978 she was a self employed taxi owner driver. She sold the cab in 1982, and again worked as a telephonist in the taxi industry in Sydney. There was evidence that she had an extended period off work during her period in the taxi industry, as a result of a back injury which resulted in a damages claim.

4. In 1984 she undertook a dramatic career change, and commenced work as a part time youth worker and escort at the Cobham Remand Centre, in St Marys in Sydney's west. She says that she had always had an affinity with young people, and wanted a more satisfying form of work. Since that time she has worked exclusively in this field, although there has been no clear career path - the period 1984 to 1993 being characterised by a series of part time to near full time positions with a range of employers in the general field of youth services. When the plaintiff's husband received a transfer to the position of Deputy Principal at Yass High School, she looked for a suitable position in this area before accompanying him to Yass, and was successful in finding employment in Canberra with Barnardos for a period. Due to changes in the Barnardos service delivery arrangements in Canberra the plaintiff found herself working for the ACT Community Services Bureau as a casual Administrative Service Officer Grade 2 providing on call residential supervision for young people in residential care in 1992, working, on the plaintiff's case, for about 27 hours per week.

5. Just before the accident in March 1993 she applied for a permanent position with the Australian Public Service, and in May 1993, that is after the accident, she was informed that she had been successful in her application as a permanent ASO 2. This offer was subject to medical fitness, and in fact she never took up this position. This would, however, have been her first "permanent" position.

6. Counsel for the plaintiff said in his opening remarks that the plaintiff was a person who could be described as "eccentric", and that she was strong willed and fiercely independent. There were some difficulties in the way she gave her evidence, difficulties which I believe explain much about the length of this hearing and the extent to which the defendant sought to test nearly every aspect of this claim.

7. The plaintiff gave evidence in a manner which at times made her credibility appear strained. I will give only two examples, on neither of which does anything turn. The plaintiff claims for ongoing physiotherapy, and it is part of her case that she has been attending her physiotherapist at Yass for three years three times a week. When asked by Counsel for the defendant how long these visits took, her sole, and repeated, reply was "I can't remember". This strains credibility. On another occasion she was asked whether she had visited a certain doctor, whose name Counsel for the defendant slightly mispronounced. Her reply was a firm denial at having seen that doctor. Only later did Counsel ask again with the correct pronunciation, at which time she agreed to have seen the doctor.

8. This aspect of the plaintiff's presentation caused me such concern that I raised it with Counsel for the plaintiff during his address. Having considered what he said, and having looked at the totality of the evidence, I come to the conclusion that the plaintiff takes a very literal view of her obligation to answer questions put to her by the defence, and indeed by medical experts to whom she has been referred by the defence. She will volunteer nothing. Whereas most persons asked the question about visits to the physiotherapist would probably have answered to the effect "Look, it varied, about half an hour a visit (or twenty minutes, or whatever)", the plaintiff took the question to mean what has been the precise time for each visit, and her answer "I can't remember" is in that sense truthful.

9. It must be said, however, that this method of answering questions, both in the hearing of this matter and before doctors, has led to some forming of the view that the plaintiff was being untruthful. Counsel for the defendant put it to her that her account of the accident and its aftermath, and her continuing disabilities, has been false and concocted. Some doctors for the defendant have concluded that she is falsifying symptoms. Again, I can understand from the way she presented why this conclusion could be reached.

10. Because of this I gave rather more latitude in cross examination than I may otherwise have done, and allowed the defendant ample opportunity to test both the plaintiff and witnesses in support of her claim. At the end of the day, however, there is nothing before me to establish that the plaintiff has been lying about the severity of her condition.

11. In this judgment I will address the issue of liability before addressing the medical evidence concerning the plaintiff's condition and the question of damages.

Liability
12. On the day of the accident the plaintiff was returning to her home at Yass after working at the Kaleen Youth Shelter. She had returned a video to a video hire store, and was intending to return to her home to assist her husband in catering to a Year 12 History class social function that they were hosting at their home. She gave evidence that she brought her vehicle, a 1979 Ford Fairlane, to a halt at the intersection of the Barton Highway and Kuringa Drive Spence, and was about to proceed left into the Barton Highway when she was struck from the rear with such force that her vehicle was pushed forward and into the first lane of the Barton Highway.

13. At the scene of the accident Kuringa Drive divides at the point of intersection with the Barton Highway. Cars may travel straight ahead and cross the Yass bound lanes of the Barton Highway, which is a dual carriageway at this point, and then turn right to travel on the Highway back towards Canberra. Vehicles wishing to travel on the Highway towards Yass have a separate left hand turn lane to merge them with traffic on the highway. The left hand turn lane meets the carriageway of the first lane of traffic with a broken white line. The plaintiff's case is that she was behind this line waiting to enter the Highway at the point of impact. She describes the impact as being of considerable force. Evidence tendered shows that the damage to her vehicle was in the order of $1,500, including replacement of engine and gear box mounts which the plaintiff says were sheared by the force of the accident. That this occurred at the accident is confirmed by the evidence of Reverend Morris who drove the plaintiff's vehicle back to Yass, and noted vibrations as the vehicle approached the speed of 90 kph, which were resolved as he reduced speed, and the plaintiff's husband who said that there had been no vibrations when he previously drove the car. I am satisfied that the collision did in fact cause this damage.

14. The defendant, who gave evidence at the trial, says that the accident occurred in entirely different circumstances. She says that the plaintiff's car stopped at the intersection, and then proceeded to enter the Barton Highway. The defendant stopped and then proceeded to follow, at which point the plaintiff suddenly and for no apparent reason stopped her vehicle in about the middle of the first lane of traffic. There was at this point, says the defendant, no alternative to a collision.

15. While I have no doubt that the defendant was trying to be helpful and truthful in giving her evidence, I am concerned that there have been several versions of her recollections of the accident. In a signed declaration to her insurance company within days of the accident she acknowledged that she, the defendant, was at fault, and acknowledged a traffic infringement notice had been issued to her for negligent driving, a notice which she did not contest and in fact paid. Her diagrammatic reconstruction of the accident has had at least three versions - that given at the trial, that in the report to the insurance company, and that provided by way of interrogatory. I have difficulty with her version of events given at the trial, as the proposition that she stopped, accelerated to 10 to 15 kilometres per hour and then braked before striking the plaintiff's vehicle, all within about 1 to 1 1/2 car lengths is hard to accept. I also have difficulty with her placement of the plaintiff's car in the diagram which she now says represents the true events of 26 March 1993. This is both because it places the plaintiff's vehicle in a position which is inherently unlikely, heading across the first lane of the Barton Highway as if it were driving towards the centre verge, and because it places the plaintiff's car in such a position that it would have blocked both lanes of Yass bound traffic on the Highway after the accident. This is inconsistent with the evidence of the Reverend Morris, who recalls vehicles passing freely in the right hand lane without having to go onto the median strip.

16. On the whole I prefer the evidence of the defendant's first statement to the insurance company, which is broadly consistent with the plaintiff's version of events. On this version, the plaintiff was stationary behind the broken white line on the turning lane of Kuringa Drive when she was struck from behind by the defendant. The collision caused considerable damage to the plaintiff's car, and greater damage to the defendant's car - some $7,500. I am able to conclude from all of this, on the balance of probabilities, that the accident occurred in circumstances broadly as described by the plaintiff, and I find accordingly. It follows from this that liability is established, as the plaintiff was stationary at the point of intersection and was struck from behind. Accepting these facts there is no contributory negligence established.

17. No evidence was tendered by police or other experts as to the positions of the vehicles when impact occurred, or as to marks on the road. On the material before me, I find liability is established.

The Extent of the Plaintiff's Disabilities
18. There is a considerable disagreement between the parties as to the state of the plaintiff's disabilities, and so on the level of damages which are appropriate. On the plaintiff's case, the motor vehicle accident and it's aftermath have had a devastating effect on her life. She was formerly a fit and active woman with a full and varied social life, who enjoyed her work and looked forward to continuing until retirement age - she is now very disabled, unable to work, in pain and frustrated.

19. On the defendant's case the motor vehicle accident caused soft tissue injury for a period of some months at the worst, and the plaintiff's present condition is either a feigned disability, or the inevitable result of degenerative disease, and in no way attributable to the accident.

20. In order to reach firm conclusions from these widely differing versions of events it is necessary to carefully examine all the medical evidence, and to look for confirmation of any statement therein. In assessing medical reports I have been mindful that the plaintiff's demeanour in answering questions in cross examination in court, where she was often stubborn in maintaining a view that stretches credibility, could easily give rise to an adverse assessment of the veracity of her claims for disability, particularly for an expert who only sees the plaintiff on one occasion. Again, I have found it particularly important in this case to sift through all of the reports to look for confirmation or contradictions for all opinions.

21. Mrs Browne's account of the accident was that, on impact, she heard a loud "cracking" in her body and felt intense pain. She felt as though her neck had been broken, and remained stationary in her vehicle until ambulance officers attended and provided treatment. The ambulance officers immobilised her neck in a collar, and she was conveyed by ambulance to Calvary Hospital.

22. The report from Calvary Hospital of 15 December 1993 records:

"This 54 year old woman was brought to Calvary Hospital Emergency
Department by ambulance at 1635 hours on 26 March 1993. The history
given is that she had been a driver of a car, which was struck from
behind, in a low speed motor vehicle accident. She is stated to have
been wearing a seat belt at the time of the impact. She presented to
the Emergency Department complaining of a sore neck and an aching
right arm, and sore shoulder."

I find some significance in this history of the record of the accident being "low speed". It is clear that the plaintiff has at different times described the accident to various examining doctors as being of "considerable force" or words to that effect, and this has contributed to the impression that she is seeking to exaggerate the event. While I can understand that, from her perception and given the damage to the vehicles the description "considerable force" is not inappropriate, it is significant that the hospital record, which has been available for some time, gives a proper description of the speed of the collision

23. The plaintiff was X-rayed at the time of this presentation, and these revealed no abnormalities attributable to the accident, but some degenerative conditions. The X-ray report reads:

"LUMBAR SACRAL SPINE: The vertebrae are in normal alignment. No bone
injury is shown. There is slight narrowing of the L 3/4 and 4/5 disc
spaces.
CERVICAL SPINE: The vertebrae are in normal alignment. No fracture is
shown. There is narrowing of the C 4/5 and 5/6 disc spaces.
RIGHT SHOULDER: (AP view only): No fracture is shown. There is
degenerative change at the AC joint."

Further X-rays were taken when she returned to Calvary four days later, and the report of this X-ray reads:

"THORACIC SPINE: No fracture can be seen in the thoracic spine. There
is a slight kypho-scoliosis with the curve convex to the right. There
is osteophytic spurring on the anterior margins of the end plates of
the mid thoracic vertebral bodies but these are of limited
significance. No other abnormality could be seen in the thoracic
spine."

24. The diagnosis at Calvary on first presentation was "cervical whiplash with lumbar bruising", and she was prescribed Panadeine Forte, and allowed to leave. Following her review, her X-ray results were explained to her, and she was given a medical certificate with time off work to 2 April. Calvary wrote to her local medical officer outlining her condition and recommending further management and physiotherapy.

25. Dr Gillies was her Yass general practitioner, and his reports were before me. Dr Gillies was also available via telephone link up from Yass and was cross examined extensively. His first report dated 17 June 1993 records his first examination on 2 April. In his report he says

"Mrs Browne is suffering from the effects of acute soft tissue strain
in her cervical and lumbar spine, most marked clinically the C5/6
level."

At this time Dr Gillies was reasonably positive about her prognosis. He said

"It is too early to assess whether any degree of permanent disability
has or is likely to occur. It is too early to assess whether the
effects of this condition are of a permanent or of a temporary nature:
It is more probable than not that the effects will be temporary, and
that Mrs Browne will over a long period of time suffer intermittent
exacerbations of pain arising from her cervical and possibly from her
lumbar spine, with a tendency for the exacerbations to become less
frequent and less severe, and to last for shorter periods of time."

26. Dr Gillies' next report is dated 1 March 1994. In this report he provides further details of his original examination on 2 April 1993.

"On examination there was significant reduction in all movements of
Mrs Browne's cervical and lumbar spine. It appeared that all attempts
to move caused increasing pain."

He goes on to update his prognosis.

"Mrs Browne currently suffers from significant neck, shoulder and
occipital pain. There is marked limitation of movement of her cervical
spine, and she is suffering recurrent headaches, and is troubled by
low lumbar pain. Mrs Browne has been treated with analgesics,
anti-inflammatory agents, physiotherapy and a cervical collar. No form
of treatment appears to have met with success, greater than that which
inactivity may have produced. At this time no further specific
treatment is indicated. Mrs Browne is not fit for her preinjury
occupation as a youth worker, or at this time for any other form of
employment to which she would be suited by virtue of her background,
education and experience. I would expect a gradual diminution in
Mrs Browne's symptoms, but not to the state of total resolution
thereof. I do not anticipate that Mrs Browne will return to work."

27. This assessment is challenged by the defendant, but in order to assess Dr Gillies' report I think it is important to look at the picture which emerges from successive reports by doctors examining Mrs Brown for Comcare in the first twelve months following the accident. These seem in my judgment to be broadly consistent with Dr Gillies' observations.

28. The first such report available to me is from Dr Hudspith, who examined the plaintiff on 14 July 1993. This report records:

"On examination Mrs Browne complained of pain in neck, back (lumbar
and thoracic areas) and disability of left arm and leg. Neck 3/4 loss
of movement - with pain."

These observations are broadly consistent with Dr Gillies', as is Dr Hudspith's opinion that:

"Mrs Brown has sustained severe soft tissue injury to neck, back and
chest wall with secondary effects to left arm and leg."

As at this examination, in July, Dr Hudspith had a cautious outlook-

"I consider that she is making satisfactory progress after a severe
injury and will continue to improve. She should continue under the
care of her LMO and physiotherapist. She is quite unfit for any work
at present."

This is consistent with Dr Gillies' April prognosis.

29. Of particular assistance is Dr Hudspith's observations of the plaintiff's outlook at the time.

"She stated that until the accident she was very fit and active in
physical sports despite having treatment for hypertension since
childhood. There were many previous episodes of ill health/operations
but she had fully recovered and was fully fit. This disability is
therefore very frustrating for her and she is doing all she can to
overcome her injury."

This seems to me a quite significant observation some four months after the injury. Dr Hudspith was at this time satisfied that the plaintiff was doing all she can to rehabilitate herself, but notes the frustration that is beginning to develop.

30. In my opinion, when all of the medical evidence is examined it is clear that some of the opinions that Mrs Browne is feigning symptoms or refusing to co-operate in rehabilitation fail to take into account this factor. From this point on it is important to look both at her physical and psychological and emotional state.

31. Dr Singh-Pandher was the next to see the plaintiff on 15 September 1993 and this report is also consistent with the picture developed by Drs Gillies and Hudspith. It records:

"On examination today she still has neck pain with stiffness and
limitations of movement with tenderness cervical spine. She has pain
and tenderness interscapular and thoraco lumbar spine with tenderness,
spasm and limitation of movement at three fourth normal."

Dr Singh-Pandher reports that the plaintiff was "keen" on starting some vocational training, but records:

"At present however she is not quite fit enough with her physical
limitations to be involved efficiently in vocational training. I do
agree with the Rehabilitation Provider that psychological counselling
would help her feeling of frustration and anxiety due to her situation
and also help her towards recovery."

32. This is a reference to a report from Combrook Rehabilitation Consultants of 26 August 1993 in which Ms Prattley recommends some psychological assistance. She records:

"Mrs Browne is finding the adjustment to a loss of independence to be
a difficult and frustrating transition. Initially Mrs Browne was 'very
teary and angry'. She is reporting that she is feeling more in control
but is prone to getting very anxious when unexpected situations arise.
She is also reporting that her memory is now poor and her
concentration levels diminished."

33. As a result of this recommendation Mrs Browne began to see Dr Byrne, now Professor Byrne, a clinical psychologist at the Australian National University. Dr Byrne attended for cross examination. In his report of 10 December 1993 he recorded eight sessions between 27 September and 18 November 1993. He concluded that Mrs Browne was suffering a serious reactive depressive state. He said:

"Mrs Browne's depression is a reaction to severe chronic pain,
substantial loss both tangible (earning capacity) and intangible (self
esteem and self confidence), and the experience of anger."

Dr Byrne has recorded that:

"Mrs Browne continues to experience a high level of anger directed at
the cause of her changed circumstances, namely the motor vehicle
accident and the driver of the other vehicle; again, there is clear
evidence on the link between anger and the onset of a depressive
reaction."

34. It seems to me that in the period of the first twelve months after the accident there is abundant medical evidence that Mrs Browne was both suffering continued physical symptoms from the accident which rendered her unfit to work, and a psychological and emotional reaction which manifested itself in a degree of anger at the accident and its aftermath. This I believe is important, because it may affect the way the plaintiff presents to persons examining her in the course of preparations for legal proceedings.

35. These reports of exaggerated or inappropriate behaviour appear in a number of medical reports provided by the defendant, dating from mid 1994. Dr Dunlop, of the Rehabilitation Service at Woden Valley Hospital examined the plaintiff in July 1994, and concluded that she displayed "florid illness behaviour." This report seems to have been of particular influence to Dr Saboisky, a psychiatrist who examined the plaintiff on 5 October 1994. Indeed, he seems to take a rather stronger line, saying:

"It is abundantly clear from Dr Dunlop's physical examination of her
that the physical signs that she exhibited were exaggerated and she
displayed florid illness behaviour. I could find no psychiatric reason
to account for this display of illness behaviour, or for that matter
why she couldn't be gainfully employed."

36. I will adopt the same cautious approach to medical reports tendered on behalf of the defendant as I have for those tendered on behalf of the plaintiff, and look for other material to confirm any opinion on which I propose to rely. My difficulty with Drs Dunlop and Saboisky is that they seem to take a very firm view that Mrs Browne is feigning symptoms without reconciling this with earlier opinions. Despite Dr Saboisky's firm conclusion that there is nothing wrong with the plaintiff and that she can work, he does record her intense anger at her circumstances. He says:

"It was clear that she felt intensely angry about the woman that
caused the accident. She told me that she would like to 'sue the arse
off the woman' and that 'it has destroyed my life' ".

37. I must say that I find these reports not at all inappropriate, and indeed consistent with the earlier observations. Dr Saboisky also records that

"She resents being at the mercy of anyone and in particular resents
the fact that Comcare have made a number of attempts to return her to
work and have done so, in her view, in an incompetent manner."

It is clear that Mrs Browne was very unhappy at being referred to Dr Saboisky. I have no doubt, having observed the plaintiff in the witness box for some time, that in these circumstances her discussion with Dr Saboisky would have been somewhat hostile, and that she would have been firm in certain views which Dr Saboisky would have concluded were untrue. I have no doubt that this has swayed Dr Saboisky in his conclusions that Mrs Brown is feigning illness.

38. An extraordinary feature of his report is his statement

"During the course of my examination the most outstanding feature of
Mrs Browne was that she was flamboyantly attired."

Unfortunately Dr Saboisky was not able to be cross examined on his report, but the plaintiff gave evidence that the clothing she wore on one day of the hearing, being a quite smart dark knitwear top, was the clothing she had worn on the day in question. If that is so, I find nothing inappropriate or "flamboyant" in her dress. This aspect of the plaintiff's dress was subject to cross examination during Professor Byrne's evidence, where it was put to him that it was inappropriate for a person suffering depression to dress and groom well. He categorically and convincingly rejected this view.

39. Perhaps the strongest attack on Mrs Browne is contained in the report of Dr Sekel, who is a general practitioner who conducts an occupational medicine practice in Sydney, and examined the plaintiff on one occasion in December 1995. He says that

"Physical examination today revealed significant evidence of
exaggeration of responses including an unusual panting that was not
consistent with normal pain response."

He says that

"I have seen no firm medical evidence to indicate that there is any
ongoing abnormality today of her neck, shoulders, upper limbs, back or
lower limbs."

He concludes that she may suffer an unrelated psychiatric disease, and says:

"It is noteworthy that Mrs Browne has advised me that she is
continuing to attend a psychiatrist, previously 'drank excessively',
admits to drinking two glasses of whiskey per day, smokes 50
cigarettes per day, has an unusual tremor, and was frequently in tears
today."

40. On cross examination Dr Sekel acknowledged that the reference to ongoing visits to a psychiatrist was in error, but maintained his history of previous excessive drinking. He later says she has signs suggestive of "chronic alcoholism". I accept the plaintiff's evidence that she never referred to "excessive drinking" or "alcoholism", but would have described herself prior to the accident as a "workaholic". Dr Sekel was very firm in his view that

"Mrs Browne may have sustained soft tissue injuries of various parts
of her musculoskeletal system as a result of the motor vehicle
accident of 26/3/93, but all symptoms and functional effects of soft
tissue injuries would have completely resolved within six to eight
weeks from the date of the accident without long term complications."

41. I am unable to accept this. It seems to me that Dr Sekel is putting what should be the normal prognosis for soft tissue injury as an absolute certainty.

42. Dr Corry, a Fellow of the Faculty of Rehabilitation Medicine and of the College of Physicians, a consultant in rehabilitation medicine called for the plaintiff, acknowledges that this is the "majority course" but

"...the reality is that there are about five percent of people who
suffer neck trauma who end up with chronic disability of various
degrees."

43. Various doctors examining the plaintiff on behalf of the compensation provider Comcare in the period of the first year of the accident have had no difficulty in acknowledging the presence of ongoing symptoms of soft tissue injury, which Dr Sekel was adamant must have resolved by May of 1993. On this basis Drs Hudspith and Sing-Pandher must have been in grave error. In cross examination Dr Sekel maintained his views, only acknowledging a one percent chance of his being wrong, despite the contrary medical opinions and observations of Mrs Browne's physical capacities. I do not find this convincing. While I accept that these issues normally will resolve within the timeframe given by Dr Sekel, his refusal to acknowledge that this may be an exception, I find difficult. Again, Dr Sekel seems convinced that the plaintiff is feigning symptoms, and I have no doubt that her demeanour at the single presentation did assist the doctor to reach this conclusion, which I however reject.

44. To return to the chronological review of the medical evidence, Mrs Browne was seen again by Dr Rohan for Comcare on 24 November 1994. At this time Dr Rohan had received and read Dr Saboisky's report, which was highly sceptical of the plaintiff. I thus attach some significance to his clinical findings.

"Ms Browne seemed somewhat tense but not particularly depressed when
seen. She seemed reasonably alert, orientated, coherent and
insightful. Cervical spine and thoracolumbar spine ranges of movement
were significantly reduced. The shoulder ranges of movement were
limited to about 1/2 normal range. Upper limb movements otherwise
appeared to be satisfactory. Both grips seemed somewhat reduced."

Thus despite Dr Saboisky's misgivings, Dr Rohan reports clinical symptoms, and further notes:

"Despite her physical symptoms Ms Browne appeared motivated to attempt
to return to work to some duties e.g. in a related social/support
field."

45. This attempt to return to work was unsuccessful, and may have coloured some future impressions of Mrs Browne. The plaintiff was adamant under long and repeated cross examination that "there was no job". I accept, however, that efforts were being made to attempt to ease her back into the workplace, albeit with some reservations, and that there was a proposal that she attend Quamby (the Youth Corrections facility in the ACT) and dictate her impressions and experiences in dealing with difficult children into a tape. Mrs Browne may well have felt this was not a "real" or "proper" job, but her obstinate view that "there was no job" can only create an impression of lack of veracity. There is a fair account of this in the report of Dr Zeman for the defendant in January 1996.

46. Dr Gillies' report in September 1994 restates his view that she is unable to work as a result of her neck. Part of the purpose of this letter was apparently to protest about the referral to Dr Saboisky. I note that Comcare seem to have accepted Dr Gillies' views by accepting a Commonwealth Rehabilitation Service report of December 1994. By February 1995 the Commonwealth Rehabilitation Service reported that Mrs Browne was unable to return to work, and closed their case file. This was based on reports from Dr Williams, an orthopaedic surgeon in Goulburn, who gave evidence and was cross examined by telephone.

47. Dr Williams as at January 1995 was of the view that genuine symptoms persisted, and referred the plaintiff to Dr Andrews, a Canberra based spinal surgeon, who also gave evidence by telephone. In his report of 4 October 1995 he found "...gross disc imperfection with bulging at 4-5 and 5-6..." in the neck. He says:

"I think the essential story here is that the symptoms came on after
the accident, and while there may have been some degenerative change
in the cervical spine beforehand, the onset of symptoms, and after all
that is what she is looking for relief about, does appear to have
followed the accident, and as such the problem at the moment does seem
to be attributable to this motor vehicle accident."

48. Dr Robson proposed surgery for relief of symptoms, which was scheduled for 10 October 1995, but the plaintiff cancelled this. Much was made of this in cross examination, with the argument being that as the surgery was for pain relief, to cancel this surgery implies lack of pain, and thus exaggeration of symptoms.

49. While I have commented on difficulties in the plaintiff's evidence, I find her explanation here quite normal and acceptable. It is well within the common experience of life that spinal surgery can go horribly wrong, with dire consequences including paralysis. I do not accept that failure to undergo an operation on her neck is adverse to the plaintiff. I note that Dr Battlay, a consultant surgeon whose reports were provided to and by the defendant, makes much of this.

50. While in his March 1995 report he is equivocal, but does accept that

"Mrs Browne has established degenerative changes in her cervical spine
and lumbar spine. It is possible that a severe motor car accident
(the violence of which is difficult to judge from indirect parameters)
did result in soft tissue strain to both the cervical and lumbar
spine."

This of course is quite inconsistent with Dr Sekel's adamant view that such injury would have resolved by mid 1993.

51. Dr Battlay revises his view in a report of March 1996, where he says

"On balance, I would be extremely sceptical about a genuine physical
basis for Mrs Browne's ongoing complaints. Her true physical
capabilities are much better than she is willing to demonstrate, but I
cannot estimate these from my two brief contacts with her."

In reaching this view Dr Battlay seems strongly influenced by her refusal to proceed with spinal surgery. He says

"I was willing to give this patient some credit previously, for
physically based symptoms flowing from the motor car accident, to a
large extent because she appeared willing to undergo an operation on
her neck in order to have her symptoms eased. As this has patently
not been the case, I think a lot of her creditability has been
removed."

I do not accept that failure to undergo surgery to the spinal column in the neck allows such a conclusion to be drawn.

52. Doctors who have examined the plaintiff on behalf of the defendant in recent times seem to have adopted a universally sceptical view, at least insofar as their reports that have been made available. Dr Zeman, who examined her on 16 January 1996 says

"In my opinion Mrs Browne's major problem is abnormal illness
behaviour and a now entrenched sick role."

In his view:

"She has no impairment of the whole person."

Dr Battlay, who examined the plaintiff in March 1995 and on 13 March 1996 is sceptical, as I have referred to above. Dr Sekel refers to "exaggeration of responses" and says following his examination of 4 December 1995:

"I have seen no firm evidence to indicate that there is any ongoing
abnormality today of her neck, shoulders, upper limbs, back or lower
limbs."

53. I have carefully considered these reports and the evidence provided by telephone from Dr Sekel. I have previously noted difficulties with the plaintiff's presentation which could result in adverse opinions being formed. But at the end of the day, the views of Drs Saboisky, Sekel, Battlay and Zeman adverse to the plaintiff remain impressions. They are inconsistent with a long history of reports including those of doctors examining the plaintiff on behalf of Comcare.

54. There is also a difficulty that, to the extent that these doctors are seeking to say that the plaintiff is untruthful, their "expert opinion" is straying beyond the acceptable boundaries for expert evidence and encroaching on the ultimate question for determination by the Court.

55. The Full Court of the Federal Court in Arnotts v Trade Practices Commission (1990) 97 ALR 555 at 594 quote with approval an extract from Sir Richard Eggleston's Evidence Proof and Probability where he says:

"....an expert must not express an opinion if to do so would involve
unstated assumptions as to either disputed facts or propositions of
law. Thus an expert who says 'In my opinion this accident was caused
by ....' in a case where the facts are disputed is assuming the right
to make a decision as to which of the parties is telling the truth,
and is therefore usurping the function of the tribunal."

56. In this case, where the truthfulness of the plaintiff is very much in question, I am mindful of treating with caution any expert evidence which in fact goes to this very question. As Higgins J said in Miletic v Capital Territory Health Commission (unreported, Supreme Court of the ACT, 4 April 1996):

"It is no part of a medical expert's task, of course, to give evidence
as to the veracity of a person examined."

57. I was told by Counsel that the defendant had also required examination of the plaintiff by Dr Cairns, an orthopaedic specialist, whose report was not produced. Some inference can be drawn from this.

58. Dr Corry, in cross examination, opined that the plaintiff's behaviour was consistent with exaggerated pain behaviour, but maintained that there were real restrictions and disabilities. His overall impression was best summarised in his response:

"I think that the sequence of events is that she sustained a whiplash
trauma mainly to soft tissue, which could have been multiple ......
Good recovery can be modified by the sorts of behaviours that go on
after that and one of the problems is that if the behaviours become
over protective, that that produces its own pain symptomotology and so
perpetrates the disability, which is I believe the sort of thing that
has happened in this case......What we call a chronic pain syndrome."

59. On balance, I favour the views of those doctors who find a genuine condition. This case has been meticulously prepared, and the focus of the defendant's attack - that the symptoms are feigned - has been apparent at least since Dr Saboisky's opinion in September 1994. Yet there has been no witness, medical or lay, who can testify to observing Mrs Browne behaving other than in accordance with her claimed symptoms. No video tape of vigorous or normal activity was produced.

60. While testimony from the plaintiff or her husband that her range of movements and activity have declined in a manner consistent with her claimed injuries could be subject to the usual attack, the evidence of Ms Kitchen, Director of Barnardo's in Canberra, was independent and objective. Ms Kitchen had first met the plaintiff when she commenced in Barnardo's employ in Canberra, and has retained contact with her because the plaintiff and her husband have accepted into their care a foster daughter through Barnardo's. Ms Kitchen's observations and descriptions of the plaintiff are entirely consistent with the plaintiff's claimed injuries and disabilities. Ms Kitchen described a "very marked difference" in the plaintiff before and after the accident. She said

"She's far less physically able to move, she appears to be in a lot of
pain, she's far less flexible in getting in and out of cars, she is
very pale and very drawn. Her whole affect has changed, she's lacking
in a lot of energy which she used to have. And quite visibly less
mobile."

61. While the defendant's medical reports have created a shadow of doubt on the plaintiff's claim, the balance of the evidence, and the uncontroverted evidence of the plaintiff's observed behaviour over the last three years, leads me to accept on the balance of probabilities that she does have a severe degree of disability. I also accept, on the balance of probabilities, that these symptoms are attributable to the motor vehicle accident of 26 March 1993.

Damages
62. Having found on the balance of probabilities that the plaintiff has incurred disabilities as a result of the negligence of the defendant, it is necessary to quantify her damages. The role of the court in assessing damages is of course to find a quantum that will

"as nearly as possible get at that sum of money which will put the
party who has been injured, or who has suffered, in the same position
as he would have been in if he had not sustained the wrong for which
he is now getting his compensation"

(per Lord Blackburn, Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (HL) ) although as Dixon J has observed,

"No doubt it is right to remember that the purpose of damages for
personal injuries is not to give a perfect compensation in money for
physical suffering. Bodily injury and pain and suffering are not the
subject of commercial dealing and cannot be calculated like some other
forms of damages in terms of money"

(Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1 at 13).

63. In assessing general damages I have considered all the evidence surrounding the impact of the accident on the plaintiff. While I am mindful of the strong views of doctors reporting to the defendant that the plaintiff is exaggerating or feigning symptoms, I am satisfied on the balance of probabilities, having regard to all the medical and lay evidence, that the motor vehicle accident and its aftermath have had a substantial adverse affect on the plaintiff which must be reflected in her award of general damages.

64. There is sufficient evidence before me to satisfy me that before the accident the plaintiff was a vigorous and generally healthy woman who enjoyed life and participated actively in a range of sporting and recreational activities, all of which are now denied her.

65. While it is clear from the cross examination of Dr Gillies that the plaintiff suffered a range of pre-existing conditions, this does not detract from this general picture. I am satisfied that the nature of the plaintiff's physical injuries has severely restricted her life. Moreover, I am satisfied that this plaintiff has had a strong emotional and psychological reaction arising from these injuries. I accept the evidence that she continues to feel intense frustration and anger at her disabilities. To this extent I find that the bulk of her general damages are ongoing. I award $70,000 for general damages, with $20,000 only attributed to the past period, for which I award interest of $1,200.

66. I accept that out of pocket expenses, to the date of trial, are to be assessed at $25,465.70.

67. The plaintiff's economic loss should be calculated on the basis that she is now unable to work, and on the assumption that she would have taken up the full time employment which she was offered after the accident but was unable to take up. This amounts to $78,773 to the date of hearing. She has received Comcare payments of $61,661.18, leaving a component of $17,111.82 for which interest, in accordance with the Practice Direction, should be awarded. As this payment would have been received at regular intervals it is appropriate to award interest of $2,750.

68. There is a Fox v Wood component of $15,745 payable to take account of the fact that the plaintiff has paid tax on those Comcare payments.

69. The same assumptions must be the starting point for assessing future economic loss. Taking the plaintiff's earnings from now to notional retirement at age 65 leads to a notional loss of earning capacity of $200,541.

70. It is considered normal practice to take a 15% reduction in any notional assessment of future earning capacity for the normal contingencies of life. In the present case I am of the view that a higher figure is appropriate.

71. While the plaintiff gave evidence that it was her intention to work full time until retirement age in the ASO Grade 2 position which she had been offered, I must have regard to the fact that she had in fact not worked in this position on a full time basis. I also have regard to the plaintiff's work history in the youth and community services field, which is a history of very regular changes of employment. The nature of the work must also be taken into account. The plaintiff gave evidence that the work at that level involved often vigorous physical activity. Indeed, a photograph was tendered showing the plaintiff lifting a child of over 3 years of age over her shoulder. Evidence was given that it could often be necessary to restrain a child, and in his cross examination, Dr Gillies revealed incidents involving a knife, and some time off taken by the plaintiff while working part time due to stress.

72. The plaintiff's general health must also be taken into account. While I have accepted her general claims in assessing general damages on the basis of a substantial and severe alteration to her life style, her pre-existing degenerative disc condition, as well as other conditions including vertigo, must be taken into account in assessing whether this 57 year old woman would have, for the first time, worked full time in a public service youth worker role involving quite heavy physical work up to the age of 65. While the plaintiff gave evidence that this was her intention, and indeed asserted that she would like to work full time beyond retirement age, I am of the view that there must be a real likelihood at her leaving her employment at an earlier time.

73. In this case, for the reasons outlined above, I think it is appropriate to discount the notional rate by 30%, resulting in an award of $140,378.70.

74. As well as her direct wage loss the plaintiff, in accepting a full time public service position, would have accrued a superannuation entitlement which is appropriate to consider in assessing future economic loss. This figure has been calculated at $43,100 by accountants at Macquarie Reporting Services for the plaintiff, and I accept this figure. It is appropriate to adopt the same approach to discounting this figure for contingencies, resulting in a sum of $30,170.

75. This leads to a total award for future economic loss of $170,548.70.

76. There is a Griffiths v Kerkemeyer claim based both on future housekeeping expenses and lawn mowing and general household tasks. Housekeeping services have been provided for some years and paid for by the employer, and I accept that the level of the plaintiff's disability is such that some assistance will be needed. Evidence was given that prior to the accident the plaintiff tended to do the bulk of outside household tasks such as gardening, lawn mowing and general maintenance, tasks which are now performed by the husband, and for which a notional $50 per week is claimed.

77. Where a plaintiff is so disabled as a result of the conduct of a tortfeasor to require assistance in day to day living, there is a compensable loss. These damages are to be assessed on the basis of commercial rates, even if provided gratuitously (Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327), although in assessing the need account can be had of the mutual give and take normal for persons in a domestic relationship (per Brennan J at 341, Deane and Dawson JJ at 343).

78. In assessing such a claim Brennan J said in Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 249 that:

"The tortfeasor is liable to pay for outside assistance if, but only
if, such assistance is reasonably necessary to satisfy the need
occasioned by the loss. If it is not reasonably necessary to bring in
outside assistance because the need can be met by the plaintiffs
themselves, damages are limited to an allowance for the increased
burdens (if any) assumed or to be assumed by the plaintiffs. If it is
reasonably necessary for the plaintiffs to bring in outside
assistance, the tortfeasor is liable to pay for that assistance. The
test of reasonable necessity to satisfy the needs created by the loss
draws upon contemporary social standards and expectations as well as
the particular circumstances of the case".

79. I am not satisfied that the full claim of the plaintiff for some $80,000 under this head of damages can meet this test. While I am satisfied that some housekeeping assistance is justified, I am concerned that the evidence shows that the plaintiff has, since the accident, moved from a normal suburban home in Yass to a very large residence with extensive grounds. This has an impact on the extent of the claim, particularly for lawn mowing and the like.

80. As a matter of discretionary judgment I award $40,000 under this head.

81. There is a claim for future medical expenses based on regular future physiotherapy of three visits per week at $37 per visit. I am not satisfied that this can be justified.

82. Dr Gillies in his report of March 1994 has noted that this treatment has not been effective. In his cross examination he maintains that Mrs Browne receives some pain relief.

"Mrs Browne was at times still gaining short term benefit through
therapy, so she was at least more comfortable for a short period of
time."

He later acknowledged that this was "measured in hours only", and that there was "no apparent long term benefit".

83. Dr Corry, a rehabilitation specialist called by the plaintiff, agreed that where there was no real improvement in a condition after prolonged physiotherapy,

"it's time to start looking at other interventions".

He would recommend that physiotherapy cease and that the plaintiff take alternative therapies for a short period.

84. Dr Williams, who examined Mrs Browne on a number of occasions, agreed that it is conventional wisdom to cease physiotherapy if it is not achieving its end. While he has recommended physiotherapy for Mrs Browne for a shoulder condition that resolved, he has not recommended the passive physiotherapy that is claimed for.

85. I accept that there is an ongoing need for general practitioner visits, and some ongoing visits to Dr Byrne. There is an established need for ongoing pain relief. I am not satisfied that the need for physiotherapy has been established. As a matter of discretionary judgment I award $20,000 under this head.

86. The total of these heads of damages amounts to $424,482.40 which as a global figure I believe is appropriate.

87. There will be judgment for the plaintiff in the sum of $424,482.40. I order the defendant to pay the plaintiff's costs.