Franca Redden v John Charles Forde [1997] ACTSC 46 (20 June 1997)

SUPREME COURT OF THE ACT

FRANCA REDDEN v. JOHN CHARLES FORDE
No. SC 31 of 1992
Number of
pages - 12
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Whiplash - Soft tissue injury to cervical spine - Aggravation of previous asymptomatic disc degeneration - Chronic pain - Gradual withdrawal from workforce - Depression - Chronic post traumatic stress disorder - Genuineness of plaintiff - Whether there existed any organic basis for her physical pain - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

HEARING

CANBERRA, 26-29 May 1997 (hearing), 20 June 1997 (decision)

20:6:1997

Counsel for the Plaintiff: Mr L Lasry QC and Mr J Pappas

Instructing Solicitors: pappas, j. - attorney

Counsel for the Defendant: Mr H Marshall

Instructing Solicitors: Barker Gosling

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $670,093.20.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 4 May 1989 in Canberra in the Australian Capital Territory. The plaintiff was the passenger in a vehicle which was stationary at the lights at the intersection of Hindmarsh Drive and Dalrymple Street, Red Hill, when the vehicle was struck from behind by the defendant. The plaintiff's vehicle was in Hindmarsh Drive proceeding in a generally northerly direction, that is facing down the hill and stationary at a red light. It was an older style vehicle with bench seats. The defendant's vehicle, which was a larger F100 pick up truck, struck the vehicle in which the plaintiff was a passenger and forced it across the intersection. The plaintiff was wearing a seat belt. Liability was not in issue at the hearing, and I have no difficulty in establishing that the defendant is indeed liable for the consequences of this negligent act.

The plaintiff was born in Italy in 1944. She arrived in Australia with her family in 1961 as a 17 year old, settling in Perth. Her first six months or so was spent learning English, and then she obtained employment as a kitchen hand at the King Edward Hospital. The plaintiff then commenced training as an enrolled nurse, and after her two years training obtained employment as an enrolled nurse at the Charles Gardiner Hospital in Perth. She then transferred to the Repatriation Hospital. In 1965 she moved to Adelaide, and continued working as a nurse at the Repatriation Hospital in that city. In 1969 the plaintiff married Dayle Redden, who at the time was a public servant working for the Weapons Research Establishment in Adelaide, a Commonwealth Government agency.

After her marriage the plaintiff left nursing, and obtained employment as a furniture salesperson at a large Adelaide furniture store. She described her work as furniture and colour consulting and sales. She enjoyed the work, particularly the interaction with customers, and continued in this employment for some years. In 1975 Mr Redden obtained a position with the Department of Foreign Affairs, and they moved to Canberra. Mrs Redden's Adelaide employers recommended her to Triffetts, a long established furniture firm in Canberra, and she obtained a similar position to that which she had held in Adelaide with that firm.

In May 1976 the Reddens had their first child, Benjamin. Mrs Redden continued working right up to the birth, and indeed returned to work some six weeks after his birth, taking the baby along to work by agreement with her employer, who was keen for her to resume work. At about this time the plaintiff also became involved with some direct selling of kitchen products, which she continued with as a sideline for many years, up to November 1996. The plaintiff described this as an interest as much as a job. She acknowledged that some income tax returns did not appear to show income from this source.

In 1978 the plaintiff's second child, Bianca, was born. For the period up to 1980 the plaintiff did some sales work with her kitchenware enterprise, but otherwise was involved in raising her children, and doing some voluntary work associated with families newly arriving in Canberra, particularly those whose English was not strong. During this period the plaintiff was also very involved in establishing a garden in the then family home, which had been purchased in 1977 with no garden at all.

In 1980 Mr Redden was posted to the Australian High Commission in Port Moresby as a consular and administrative officer. For a period the plaintiff worked in the High Commission in a job she described as "a go for", and was then offered a position in sales and management with a large stationary supplier.

Both the plaintiff and Mr Redden gave evidence of a very extensive social life during the period of this posting, partly arising from Mr Redden's duties as a member of the Australian Mission, and partly arising simply from their enjoyment of cooking and entertaining, which Mrs Redden was particularly good at.

On their return to Australia in 1982 the children were both of school age, and the plaintiff was offered employment again at Triffetts, working five days a week from 9 to 3 so that she was able to fit work around her children's schooling. Their social life continued to be very active in Canberra, and the plaintiff continued to enjoy dancing, and developed a new interest in doing aerobics. The plaintiff became very enthusiastic about aerobics, and participated in regular classes at the Southern Cross Club, as well as teaching in a social group at a friend's house. Photographs from the period of the mid 1980's tendered at the hearing confirm the plaintiff's claim of a good level of fitness from her activities.

In 1984 Mr Redden was again posted, this time to Jakarta as Deputy Consul. The plaintiff again found herself very busy during this posting with social activities, as well as teaching aerobics to expatriate groups and involvement in a volunteer group called the Women's International Council. At the end of this posting the family returned to Canberra, and the plaintiff returned to her job at Triffetts and aerobics.

I have set out at some length the plaintiff's circumstances prior to the accident because I am satisfied, having seen the plaintiff for a considerable time in the witness box, as well as her husband and a long term family friend, that prior to the motor vehicle accident she was an energetic, vital person, who was actively involved in her home and garden and pursuits such as aerobics and dancing, as well as being an enthusiastic and valued employee. It is significant that she says she was always offered her job back on her return to Canberra, and never had to apply.

It is the plaintiff's case that the motor vehicle accident the subject of these proceedings produced, not only the type of soft tissue injuries to be expected from the mechanics of such a collision, but that it aggravated and made symptomatic a pre existing underlying degenerative condition which has had a most substantial impact on the plaintiff's life, grossly restricting her activities and producing ongoing pain. As a consequence of this, the plaintiff has, on her case, also developed significant psychological symptoms.

The medical evidence presented in support of the plaintiff's case I found to be broadly consistent and compelling. Police attended the accident and advised the plaintiff that she should go to hospital, but she said that she was in a degree of shock and confusion, and that she wanted to attend her family general practitioner. In his first report to the plaintiff's workers compensation insurer of June 1989 he said

"She felt immediate neck pain extending to both shoulders and along the left arm. Pain was radiating downwards to the thoracic region and lumbar region. She felt shaky and shocked and gradually started feeling a splitting headache, stiffness in the back."

Dr Dimitri originally assumed simple soft tissue injury in the cervical thoracic spine, and the plaintiff was prescribed valium for relaxation and pain killers. The next day the pain was getting worse, and Dr Dimitri arranged for x-rays to be taken, and advised the use of a soft collar. The x-ray revealed a level of underlying disc degeneration, and Dr Dimitri prescribed an anti inflammatory. His diagnosis of June remains a good description of the plaintiff's condition, and one that, in my opinion, has been supported by the large range of specialist opinion obtained since:

"1) Whip lash injury to the cervical spine in the form of musculo-ligamentous disruption to the soft tissues. It is early days yet to anticipate the prognosis of this type of injury but this condition could be painful up to 3-5 years.

2) Aggravation of previous asymptomatic disc degeneration at level of C 5/6. This is causing neckpain radiating to the left arm and forearm."

The plaintiff took some eight weeks off work, and then returned to work. Her pain was persisting during this time, and she showed a change of mood and some depression as things did not improve. Dr Dimitri's report of August 1989 says

"She was seen on 18-7-89, and although she was still suffering from the same type of pain, she was keen to return to work. I agreed with her, as this could possibly be treatment for her depressive moods which were due to having to stay home and the continuous pain."

The plaintiff returned to work, but said that she continued to experience pain. She also attempted to return to her pre accident social and recreational activities, but found increasing pain. She saw a range of specialist doctors over the next few years, whose reports broadly are supportive of Dr Dimitri's original diagnosis. Dr Danta, neurologist, reported in December 1990 that

"The patient presented with a typical whiplash injury to the neck. She has evidence on the scan of degeneration of four cervical discs. Her pain is, therefore, likely to be due to a combination of the soft tissue injury and her being rendered symptomatic of cervical spondylosis."

He noted her ongoing problems, as well as commenting favourably on the veracity of the plaintiff's complaints, and said

"Since she had no relevant symptoms before the accident, this has to be held responsible for all her complaints and resulting disabilities."

Dr Chandran saw the plaintiff on referral from Dr Danta in October 1990, and he reported in December 1990 that

"The motor vehicle accident of May 1989 seems to have aggravated or caused symptoms in her spine that previously had degenerative changes going on."

Dr Chandran continued to see the plaintiff up to 1995 with a view to surgical intervention, but concluded that she was not a candidate for surgery. He performed a discogram, which the plaintiff described as a most painful and unpleasant experience, in October 1995, and reported to her then treating general practitioner

"At the visit for the discogram she was very tearful and had to be given intravenous valium which is not an uncommon medication. She also seemed to have a very low pain threshold during this procedure. Unfortunately all the levels tested from C4 to C7 showed painful disruption. Interestingly the C3/4 disc which shows maximal bulge on MRI Scan does not show any pain or leak on injection. This leaves us with a difficult question of looking at any anterior fusion. The disc removal at C4/5, 5/6 and 6/7 with fusion is a most extensive procedure leaving behind then a symptomatic and abnormal disc at 3/4. This could then lead to further problems. Given the background of this lady's protracted illness and the need for psychological support and visits to a psychiatrist, I do not see this as a way of treating her."

Dr Andrews, a consultant neurologist, saw the plaintiff in September 1989, and said in his first report that

"I think Dr Dimitri is quite correct in his opinion that she suffered muscular and ligamentous injury to the neck which should resolve over time, but it also appears that she has aggravated an asymptomatic degenerative disc at C5/6."

He strengthened his view in a later report in December 1989 after he had seen a CT scan, and at that time suggested that surgery may be appropriate. In a report to the plaintiff's solicitors on August 1996 Dr Andrews referred to a range of subsequent scans, and said

"This lady's scanning does show multiple disc pathology in the cervical region which would not be amenable to surgical treatment because it is multiple levels. Fortunately the scans do not reveal any neural involvement."

Dr Keiller, a consultant orthopaedic surgeon, saw the plaintiff on a number of occasions from 1989 to 1992 to prepare medico legal reports. In his first report he anticipated a good recovery from a genuine acceleration/deceleration injury, but in his later reports he notes the underlying degenerative condition, and agrees that this is not amenable to surgery. He notes a significant emotional component in her pain presentation, but supports the existence of genuine pain with a physical cause.

Dr Robson, a neurosurgeon, saw the plaintiff in May 1990, and expressed the view that her radiological results showed that her problems were

"...the consequence of injury received in the accident and applied to those probably previously minimally imperfect discs which were made symptomatic by the accident."

A medical report of some 4 pages was tendered for the Defendant from Dr Thompson, a medico legal consultant, who formed the view that there was nothing wrong with the plaintiff. He said

"I don't believe this worker has any legitimate physical disability, on honest physical grounds, in or related to the neck."

Dr Thompson was, understandably, required for cross examination, which took place by way of telephone evidence. It emerged from this that his only qualifications are the standard MB.BS, with a diploma in obstetrics and general practice and Fellowship of the College of General Practitioners. He saw the plaintiff for a 30 minute period on one visit, during which time he formed his conclusions and dictated his four page report. He has been doing solely medico legal work since 1986. Unfortunately the cross examination was unable to proceed further, and Dr Thompson objected to answering questions, and claimed difficulty in coping with the telephone method of giving evidence. After this process broke down I indicated to counsel that I would have grave difficulty in preferring Dr Thompson's evidence, which is totally at odds with a range of specialist treating doctors. Counsel for the defendant indicated that the defendant would not be relying on this evidence, and as a result Dr Thompson was not called to give evidence in person.

The plaintiff continued to work at Triffetts after the accident, despite her ongoing pain, and in November was approached by another furniture firm, Norman Ross, for a similar job at better pay, which offer she accepted. She only worked there for about a month, and said in her evidence that by the end of each day she was exhausted, in a lot of pain and irritable. She was then offered a job as a store manager and interior decorator at a smaller furniture concern, Luigi's Furniture. She worked there until August 1990, when she resigned. She said that by that time

"...just everything got on top of me. It's just the pain was so intense sometimes everything got on top of me."

Her evidence was that, while she had been coping with work, she was becoming increasingly irritable and exhausted, and her social and family activities had been dropping away.

From August 1990 to September 1991 the plaintiff remained at home. In September 1991 she commenced part time employment with Jenner Electronics, a business run by her brother. Her duties were sales and public relations. She says that she enjoyed this work, but was taking large quantities of pain killers, and was in considerable pain. She also started to have some panic attacks. She persevered in this employment until July 1993, and has not worked since.

Throughout this period the plaintiff has been prescribed a large range of medications, and has been taking them in large quantities. She became addicted to valium and required inpatient treatment at a Sydney clinic to bring her medication levels down to acceptable levels, but they continue to be high to date. She has more recently begun to take intravenous morphine when required.

The plaintiff gave evidence of a steady deterioration in her mental state consequent upon her ongoing pain and restriction of mobility. As well as her frustration at being unable to continue with her pre accident life and her pain, her marriage was put under considerable strain as a consequence of her irritability and lack of interest in sexual activity. Her children were adolescents at this time, and this undoubtedly contributed to her overall difficulties. Expert reports were tendered from psychologists Dr Arnstein, who has been treating the plaintiff since 1991, as well as Mr Nomchong and Mr Sutton. Dr Saboisky, consultant psychiatrist, has provided treatment and medico legal reports, and was called to give oral evidence.

In 1991 Mrs Redden's ongoing difficulties led her to consult Dr Arnstein, a clinical psychologist specialising in marital and family therapy in relation to marital stress resulting from her accident. Dr Arnstein diagnosed post traumatic stress, and has had ongoing contact with the plaintiff, her husband and her family. In April 1994 Dr Saboisky, a consultant psychiatrist, saw the plaintiff. In his report he states

"Since Mrs Redden was involved in the motor vehicle accident...she has suffered from chronic pain, the loss of her ability to successfully work, enjoy recreational activities and sexual activities with her husband. She has suffered from recurrent re-experiencing of the accident in the form of flashbacks, nightmares, as well as having a host of dystymic symptoms such as depression, irritability, despondency, the lack of motivation and diminished self esteem. She has had much in the way of psychological treatment and became addicted to benzodiazepine drugs. Her treatment has been rationalised and yet despite this she still suffers from both depression and post traumatic stress disorder."

The plaintiff, her husband and Mrs Knobel, a family friend since 1979, all gave evidence of the plaintiff's increasing withdrawal from social activities, her weight gain and her lack of interest in her presentation, in the years since the accident, which reinforce the picture that emerges from reading the expert psychological and psychiatric reports. This evidence stands uncontradicted by any expert psychiatric or psychological report from the defendant, although the defendant did urge that evidence that the plaintiff's general practitioner had found her "depressed" in 1988 after what she took to be sex discrimination at her workplace, indicated a pre existing psychiatric condition. I am not satisfied that this is made out, and I note that this thesis was not put to Dr Saboisky. Apart from Dr Thompson, the only medical report tendered by the defendant was from Dr Sekel. He holds the basic medical qualifications, and in addition has obtained some qualifications after part time study from the American Academy of Disability Evaluating Physicians, and has a diploma in Occupational Health and Safety.

Dr Sekel's view in his report was to the effect that there was

"zero percentage impairment of the neck, shoulders, upper limbs or chest wall resulting from injuries directly attributable to the motor vehicle accident."

In the face of a range of contrary views from a range of highly qualified specialists in the fields of orthopaedics, neurosurgery and neurology, I can not accept this view. During his oral evidence, however, Dr Sekel expressed the view, which is more consistent with the other evidence, that the plaintiff suffers from a degenerative disease of the spine, which he describes as relatively mild. He was dismissive of the plaintiff's claimed symptoms, saying that many persons who are in no discomfort at all would display similar radiological results. No doubt this is true, but it is also true that asymptomatic degenerative diseases can be rendered symptomatic by trauma, which in the view of those doctors whose views I prefer, is what has happened here.

Dr Sekel was cross examined vigorously. He strongly rejected the view that he was anything other than an impartial expert witness. He ruled out the view that he was an investigator, on two occasions. He did, however, later concede that in a separate letter to the defendant's solicitors, written on the same day as his report, he had said

"Mrs Redden appears to be significantly exaggerating her responses, and it may be helpful in confirming that there is no significant abnormality of her neck and surrounding tissues, if she were to be observed."

He also suggested, in the same letter

"That it would be helpful to observe if Mrs Redden maintains this bizarre, stiffly held neck, at times when she was unaware that she was being observed".

While covert surveillance is often employed by insurers, sometimes with significant effect on the credibility of a plaintiff, I have some concerns at a person who presents as an impartial expert expressly recommending covert surveillance, in a report separate from the tendered expert opinion.

Dr Sekel acknowledged that he did not have qualifications in neurology. When he was presented with Dr Chandran's report, which he had not previously seen, he claimed that it confirmed his views. He placed great emphasis on Dr Chandran's reference to a low pain threshold, suggesting that there was little real pain. I do not find this convincing, and where Dr Sekel's views are contradicted by the range of specialists, I prefer their evidence. Dr Sekel expressly stated in cross examination that psychiatric matters are not his area of expertise, and that he would leave such matters to experts in that field.

Dr Saboisky gave evidence that the plaintiff attended him in December 1996 after she had taken an overdose of digesic, panadeine forte and valium. Her husband had given evidence of this incident when he returned to work and found his wife unconscious with obvious evidence of ingestion of a large quantity of pills. He contacted his pharmacist for advice, but was put through to a locum who happened to be involved in the Poisons Information Service. An ambulance was summoned and the hospital was informed, and Mrs Redden was admitted for treatment. Dr Saboisky said that this incident occurred at a time when the plaintiff was under increasing stress, as a result of this matter coming to finality, a dispute with the insurer over ongoing fees for counselling with Dr Arnstein, and a dispute with her daughter. In cross examination he said that suicide attempts can often be a form of a cry for help, and that at this point in her life she was probably very frustrated, and he indicated that in this sense it was probably a temporary solution - he said

"I didn't see it as a serious suicide attempt."

Dr Saboisky was asked in his evidence whether he thought the resolution of the medico legal process would impact on the plaintiff. He said that this was hard to predict as

"...she has been chronically impaired with chronic pain and a chronic psychiatric disorder for years now",

but he said that

"...over a good number of years something like 50 per cent get some sort of reasonable occupational adjustment."

In cross examination he referred to a recent study that he had read by a Mr Bowman that said that a long term study of veterans with post traumatic stress disorder indicated that some 35 per cent resolve over time. It was put in submissions that I should take from this that Dr Saboisky was saying that there is a 50 per cent chance that the end of litigation will resolve the plaintiff's problems, and that, if she is in the other 50 per cent, 35 per cent of such matters resolve anyway. I do not take him to be saying this at all. He has clearly diagnosed the plaintiff as suffering from an ongoing condition of chronic pain, depression and post traumatic stress. He stressed his perception of the genuineness of the plaintiff's presentation. While I take it from his evidence that there is a good chance of some improvement, certainly from the point of the plaintiff making an attempt, albeit not in his view serious, at suicide, I can not take one reference to a specific single study of post traumatic stress in veterans as an assertion of a strong likelihood of complete resolution.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, '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'."

In this case I assess general damages on the basis of a general acceptance of the plaintiff's medical condition as set out in the various expert reports tendered by the plaintiff. I find that the motor vehicle accident produced soft tissue injury, but that it also aggravated and rendered symptomatic a previous underlying degenerative condition that had been asymptomatic. The sequelae of this physical injury was ongoing pain and significant limitations to the plaintiff's lifestyle, which has in turn produced a genuine psychiatric condition of some severity, in the form of depression and post traumatic stress disorder. I am satisfied that the descriptions given by the plaintiff and her husband of the radical change in her lifestyle since the accident, and her gradual withdrawal from employment and social and recreational pursuits, all of which she had previously pursued and enjoyed with vigour, are genuine. I find the plaintiff and her husband to have been credible witnesses in such matters.

Counsel for the plaintiff submitted that, given the evidence that Dr Sekel had recommended surveillance of the plaintiff to demonstrate that she was feigning symptoms, I should in the absence of any video material draw the inference that any such material would not have helped the defendant's case. I am prepared to draw such an inference, which supports my finding as to the plaintiff's credibility, although I would have made such findings in relation to credibility in the absence of such an inference.

The significant psychological consequences of this injury elevate the general damages in this matter above the normal range that would be awarded for the physical difficulties associated with a back and neck condition alone. I award general damages in the sum of $60,000, with $40,000 being for past loss generating interest of $6,511, a total award for general damages of $66,511.

I am satisfied, on the basis of the plaintiff's medical evidence and having heard the plaintiff and her husband that the accident related injuries have been the cause of her gradual withdrawal from the workforce. I should note that I find it to be in the plaintiff's credit that she has clearly made genuine efforts, despite ongoing pain and distress, to remain in the workforce in the years after the accident. It follows that I find that the plaintiff's claim for wage loss to the date of hearing is established. I accept the basis of the calculations set out in the plaintiff's Amended Statement of Particulars in relation to the calculation of past wage loss. This is based on the actual losses of wages during the plaintiff's absence from work up to September 1991, and then the difference between her actual earnings at Jenner Electronics and her former earnings as a furniture sales person. The plaintiff has submitted, and I accept, that in relation to the period from August 1993 to the date of hearing it would be unfair to assess income loss simply on the basis of the actual earnings when the plaintiff was last engaged as a furniture sales person, that being the $535 per week used as the basis for the calculations to date. Evidence was tendered of wage rates and increases over the years for senior furniture sales persons at two Canberra furniture stores comparable with the plaintiff's former employment, and I accept the submission from counsel for the plaintiff that it is appropriate to take an average of these two present rates, and halve this to take account of regular wages movement since 1993. This produces a sum of $185,170.49 for past wage loss, which I award. No interest has been claimed in respect of past wage loss. As I have adopted the formula urged by counsel for the plaintiff to take into account wage movements during this time, and as there have been many fluctuations in the plaintiff's earnings during this period, this seems appropriate.

I note that workers compensation payments have been made to the date of the hearing of $98.499.18, which are of course recoverable. Tax has been paid on these earnings of $14,426.09, which under the principle of Fox v Wood is recoverable.

The plaintiff's claim is for an ongoing inability to work to the date of normal retirement, which, based on the mid point between the two comparable present salaries at the date of hearing of $675 net per week, amounts to a claim for $355,865. The defendant's case on the basis of the tendered medical reports of Drs Thompson and Sekel, was that there was nothing wrong with the plaintiff, and so no future loss could be established, but in submissions this was modified to a claim that the plaintiff is likely to recover, based essentially on the remarks of Dr Saboisky, or alternatively that the plaintiff's pre existing asymptomatic degenerative disease may well have rendered her symptomatic to her present state at some future time. Both of these claims have some weight, insofar as they must be taken into account in assessing an appropriate figure for vicissitudes. My overall conclusion following Dr Saboiski's evidence is that, while there is some legitimate hope for an improvement in the plaintiff's condition following resolution of these proceedings, her return to the workforce on a full time basis remains very much a possibility rather than a probability, although he did say that, if the plaintiff was one of the 50 per cent of persons who improve after litigation she could, solely from a psychiatric point of view, return to the workforce. This does not, of course, address the issue of her physical condition, which in the opinion of her treating doctors is likely to remain chronic. This condition, however, is largely now attributable to the underlying condition provoked by the accident, in that soft tissue injuries have now resolved. Dr Sekel was of the view that the level of degenerative disease shown on x-rays is mild and in most cases would present no symptoms, although he also said that degenerative disease can be provoked by ordinary activities of living. This fell well short, however, of any assertion that there would have been a likely point at which the plaintiff's condition would have developed to its present point absent the accident.

I must, however, take these factors into consideration, and it seems to me that it is appropriate to apply a higher figure for vicissitudes than the normal 15%. Application of a figure of 25% to take into account both the possibility of the resolution of the psychological condition and the onset of a degree of symptomology from the pre existing back condition results in an award for future economic loss of $266,898.75, which I award.

Out of pocket expenses to date amount to $69,989.87 paid by the workers compensation insurer, and I award this sum. I note that some $15,766.19 of this was disputed by the defendant, as money paid to the Vitality Health Centre in respect of therapeutic massage. I am satisfied, however, on the evidence of the plaintiff's treating general practitioner, that this has been an appropriate expense to date.

The plaintiff's claim in respect of future out of pocket expenses is substantial. It is broken down to a claim for future pharmaceuticals, based on the evidence of the average payment by the insurer for the last six months, of $25.85 per week, for $26,832.30, discounted to $22,807.45.

The plaintiff has been receiving treatment from an osteopath and a massage therapist. Based on the costs in recent months, the claim here is for $57,977.30 discounted to $49,281.45 for future osteopathy, and $86,233.84 discounted to $73,298.76 for future massage. While Dr Saboisky indicated that the plaintiff was obtaining some benefit from these treatments, in the sense that they were palliative and maintaining her present condition, Dr Sekel was dismissive of their benefit. A claim of this order for treatment which is not supported by a specialist in the relevant field, and which at best is described as merely palliative rather than curative, cannot in my opinion meet the test of a reasonable expense related to the accident. While I have been prepared to find the costs to date of such treatments should be recovered in the award for out of pocket expenses, I am not satisfied that the claim for future out of pocket expenses is satisfied in this respect.

There is a claim for future expenses for counselling and psychiatric care. Dr Saboisky was speaking to his speciality here, and was of the view that ongoing treatment is appropriate. Based on bi-monthly therapy of $40 per session, the plaintiff has claimed here for a discounted sum of $16,288.60. I find this to be well in excess of likely requirements taking into account Dr Saboisky's own assessment of the likelihood of resolution of the psychiatric condition. I find, on his evidence, that it is more likely that this plaintiff will require ongoing therapy for a year or two, and then only intermittent treatment beyond that.

There is also a claim for regular general practitioner visits, which has been based on the past pattern paid by the insurer of $10 per week, leading to a discounted claim of $8,823. Again, while a claim of some substance is appropriate here, I am not satisfied that the costs will be of this order for the long term future.

I award the sum of $30,000 as a discretionary sum to reflect future pharmaceuticals, psychological and psychiatric and general practitioner attendances.

A Griffiths V Kerkemeyer claim was particularised, taking the ACT Home Help rates for domestic assistance as its basis, at $25,740.20 for past assistance and $70,018.05 for the future. The Executive Officer of Home Help, Ms Dadge, was called and cross examined on that organisation's published rates. She said that the published rates were the organisation's third party charge out rates, but that reflected all their costs and also reflected the fact that the fees may not be paid for many years, if at all. She said that domestic assistance could in fact be obtained at about half their published rates. As the ACT Home Help published rates are so often cited in personal injury claims in this jurisdiction, it may be appropriate to set out this evidence:

"All right, are you able to say what is being charged in the market place at the present time for the sort of services your organisation provides? for domestic assistance?--Yes? Approximately $15 per hour. Personal care, it varies between $18 and $26 an hour.

Thank you. And that represents in terms of domestic assistance, about half of the published rate shown there on that schedule. You will not be able to nod but do you agree with that?--Sorry, yes, I agree.

And would it be fair to say that the market rate has generally correlated to about 50 per cent of the published charges there?--Yes.

In your experience--Yes."

Ms Dadge also said that the award rate, with the casual loading for persons providing domestic assistance as at May 1997 (that is, before an increase later that month) was $13.40 per hour.

While the claim for past Griffiths v Kerkemeyer was substantially reduced by the time submissions were made, I am generally not satisfied that the assistance provided by Mr Redden to at least 1996, which on the plaintiff's case was 1 hour per week to July 1993, increasing to 4 hours from July 1993, which is when the plaintiff stopped work, to October 1996, is made out as being other than the normal assistance of a mutual relationship, in the sense used in Van Gervan v Fenton. I note that in about July 1993, the insurer started to pay for a cleaner, and that heavy cleaning work has been performed by a paid cleaner from that date. That is covered in out of pocket expenses.

October 1996 was the date of the plaintiff's suicide attempt. I am satisfied that from this point the plaintiff's husband significantly increased his time devoted to caring for his wife. He assumed responsibility for dispensing medication. The plaintiff has claimed the sum of $5,628 to cover this period, and I find that this is appropriate.

In finding that there is no Griffiths v Kerkemeyer claim for past services beyond this sum I do not intend to be taken to be critical of Mr Redden. Indeed, it is clear that he has throughout a very difficult time, which would test any relationship, stood by the plaintiff. Their marriage has survived.

Mr Redden said that the suicide attempt was a severe shock to him, which is understandable. He said that he felt some remorse for the attention he had paid to his work in recent years, and in late 1996, after this incident, he took the opportunity to leave the public service, and is now working from home in a consulting business focusing on business links with Indonesia.

His evidence was that, since January 1997, he has spent some 2 hours a day assisting his wife. Counsel for the plaintiff has projected this forward, based on $15 per hour for 14 hours per week on life expectancy, and subject to a 15 per cent vicissitudes, to a revised claim for $185,283.

As I have previously stated in reasons, where a very substantial Griffiths v Kerkemeyer claim is made, it needs to be supported by evidence of a real need going beyond a notional assessment of the time one spouse assists the other. Despite her disabilities, which I have found to be genuine, the plaintiff can and does contribute to household activities, and cooking and general housekeeping. Since the time of her attempted suicide her husband has had to take particular care with her medication. This will no doubt continue for some time, but I am not satisfied that this equates to a claim for 14 hours per week for the indefinite future. I award the sum of $5,000 for future Griffiths v Kerkemeyer assistance, namely care with medication.

I am satisfied that the costs of a cleaner are appropriate. Based on the evidence of a present cost of $30 per week, this justifies an award discounted to $26,469 as claimed by the plaintiff, which I award.

There was a claim for future gardening costs of $11,028. I am not satisfied that this has been made out to the appropriate standard of proof.

This amounts to an overall award of $670,093.20, which I consider to be appropriate in all the circumstances.