Robyn Lee Fry v Jan Mcgufficke [1997] ACTSC 66 (12 September 1997)

SUPREME COURT OF THE ACT

ROBYN LEE FRY v. JAN MCGUFFICKE
No. SC 528 of 1989
Number of pages
- 14
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Soft Tissue Injury to Neck and Back - Disc lesion - Plaintiff an Epileptic - Causation - Causal link between migraines and the accident - Causal link between post accident operative procedures of right temporal lobectomy, cranioplasty and mandibular coronoidectomy and the accident - Causal link between plaintiff's inability to pursue a medical career and the accident - Loss of opportunity - Partial loss of earning capacity - Whether plaintiff exaggerating symptoms -Psychological element - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

HEARING

CANBERRA, 10-13 March 1997 and 16-17 June 1997 (hearing), 12 September 1997 (decision)

12:9:1997

Counsel for the Plaintiff: Mr D Higgs SC and Mr C Whitelaw

Instructing Solicitors: Howes Powrie Rowe

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 $305,663.75.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 29 June 1988 when the plaintiff was a passenger in a car travelling from Yass to Canberra being driven by the defendant. The defendant made a right hand turn in the face of oncoming traffic at the intersection of the Hume and Barton Highways, just outside of Yass, and the vehicle was struck by an oncoming vehicle. Liability was denied, and contributory negligence was pleaded. While no concessions were made in respect of these matters, no evidence was called by the defendant and no submissions were made on these issues. I am satisfied, from the material before me, that the accident was due to the negligence of the defendant, and so liability can be established for those injuries attributable to the accident.

The plaintiff's claim is for a very high level of damages. It is claimed that the accident was responsible for an aggravation of an admittedly pre existing epileptic condition, which condition, it is claimed, was stabilised at the time of the accident. The plaintiff has subsequently undergone a right temporal lobectomy in order to treat the epilepsy. There were complications from this surgery by way of wound infection, requiring the removal of a bone flap and the later insertion of a steel plate to the skull. It is also claimed that the accident caused a problem with the plaintiff's jaw which required surgical intervention. In addition, the plaintiff claims injuries to her neck and back which produce continual pain and prevent her working for more than 15 hours per week at her present employment as a social worker. This level of disability is claimed for the rest of her working life.

Some years after the accident the plaintiff was accepted as a student in the medical faculty at the University of Newcastle. She enrolled, but failed to pass her first year subjects after two attempts. It is claimed that the accident was the cause of her failure to successfully complete her medical training, and accordingly her claim for future income loss is based on the difference between her present earnings as a part time social worker, and her projected earnings as, at the highest, a surgeon, or at least a general practitioner.

The defendant's case is that the plaintiff's pre existing epilepsy was of such severity that the surgical procedure, which was in contemplation before the accident, was inevitable, and that there is no connection between the accident and the plaintiff's epilepsy. The jaw condition, on the defendant's case, is related to the surgery undertaken for the epilepsy, and also is unrelated. While a degree of soft tissue injury to the neck and back is admitted, it is the defendant's case that these injuries were relatively minor and have resulted in a low level of disability, which ought by now to have resolved .The defendant's case is that any claim for lost earnings is limited to a past closed period for a limited time, and based on the plaintiff's lost earnings as a social worker.

The defendant squarely attacked the plaintiff's credibility through a prolonged cross examination. On very many points what the plaintiff said was not consistent with contemporaneous records. Counsel for the plaintiff urged that the plaintiff's medical condition be borne in mind in assessing these issues, but conceded that there are discrepancies. These will be dealt with in these reasons.

The plaintiff was born in April 1964 in Queensland. At around the age of 13 she began to suffer epileptic seizures diagnosed as temporal lobe epilepsy. The plaintiff completed her high school studies to year 12 at Mackay High School, and in 1982 attended James Cook University where she completed an Associate Diploma in Community Welfare in 1983. In 1984 she attended the University of Queensland in Brisbane, where she successfully completed a degree in Social Work, finishing her studies in December 1986. She successfully applied for a position as a Grade 1 Social Worker at the Queanbeyan Hospital and Area Health Service, and came to the Canberra region in January 1987 to take up this position.

The motor vehicle accident occurred as the plaintiff was returning to Queanbeyan Hospital from a work trip to the Yass Hospital. The defendant, a colleague of the plaintiff's was driving, and the vehicle turned into the face of oncoming traffic at the intersection of the Hume Highway and the Barton Highway. I am satisfied that the defendant was negligent in attempting to execute this turn, so that liability can be established for any injuries attributable to this negligent act.

The plaintiff said in her evidence in chief that it took some four hours to cut the defendant driver from the wreck of the car, and that during this time the plaintiff was in the ambulance at the scene of the accident. In opening his cross examination counsel for the defendant asked the plaintiff whether she was liable to exaggerate or embellish her version of events, a proposition which she strongly denied. In cross examination, the plaintiff maintained that she was at the scene for this length of time. She said that the accident occurred at about 4.30 p.m., and was confronted with the hospital reports from the Yass hospital, which she said that she had previously seen, which put her admission to that hospital at 5.20 p.m. which, allowing for the time the ambulance would have taken to attend the scene after being called, and return to the hospital, would mean that she spent very little time waiting at the accident scene in an ambulance before admission. The plaintiff maintained in cross examination that she had been told that she had been at the scene for this length of time. I note that in a report tendered to the defendant from Dr Fitzsimmons, a neurologist, dated 7 February 1994 he recorded a history taken from the plaintiff on a consultation on 31 January 1994 of her being at the scene for "4 to 6 hours". She also told Dr Fitzsimmons that she was "numb from the waist down" at the time of the accident, which does not appear in the contemporaneous notes.

This inconsistency between the plaintiff's evidence in chief and contemporaneous notes is but the first of many such inconsistencies which emerged during a long cross examination. Many of these will be referred to in these reasons. In his concluding address counsel for the defendant urged that I find that the plaintiff has regularly been wilfully untruthful in her evidence in order to exaggerate her injuries, and to attribute her long-standing epileptic condition to this motor vehicle accident. Counsel for the plaintiff had to acknowledge that there were inconsistencies in her evidence, but urged that I bear in mind the plaintiff's epilepsy in assessing whether these were wilful or inadvertent. Counsel also referred me to evidence from the plaintiff that she had been subjected to sexual abuse as a child. I note that no reference to this has appeared in the quite extensive psychological and psycho social reports prepared preparatory to the plaintiff's major brain surgery to deal with the epilepsy. I must conclude that, whether wilfully or for another reason, the plaintiff is not a reliable witness, and where her version of events is inconsistent with contemporary records, I am not able to prefer her version of events.

The plaintiff has told many doctors subsequent to the accident that she suffered head injuries, and has referred to bleeding from her ears and nose, and has said that Dr Newcombe, a Canberra orthopaedic surgeon, detected cerebral fluid leaking from her nose, and diagnosed a fracture of her skull from the accident. This version of event, suggesting a major trauma to the head, has been advanced in support of a claim that the motor vehicle accident is responsible for the plaintiff's epilepsy after the accident and the surgical procedures that she has undergone. I do not accept this version of events. Dr Brown's notes reveal that in December 1988 Dr Newcombe recorded that there had been a watery discharge from her right nostril, which he believed was cerebrospinal fluid, and that he arranged for CT scanning to be performed to check for any fracture. A subsequent report to Dr Brown says that these investigations

"...did not show any fracture or sinus opacification to suggest CSF leak."

The plaintiff tendered a report from Dr Ewing, a neuropsychologist, which records that in 1994 the plaintiff gave that doctor a history of

"...a closed head injury with an unconfirmed fractured skull suggested by an apparent CSF leak."

In cross examination the plaintiff was adamant that this was an appropriate history, because Dr Newcombe

"...did not exclude a fracture."

She was asked whether she told Dr Ewing that there had been no confirmation of the CSF leak, and she said

"She did not ask that way. That was not the tone of the conversation."

I must conclude that the plaintiff has continued to give a history to doctors which is not consistent with the records.

I find it inconceivable that the plaintiff could have been bleeding from the nose and ears at the time of this accident, and yet this fact not be recorded in the contemporaneous notes . The police notes merely record sprained left ankle and bruised left thigh as the plaintiffs injuries, although these of course are not notes of a medically trained observer. The Yass District Hospital outpatients notes record

"...involved in motor vehicle accident. Principal injuries: swelling lateral aspect (L) knee, and lateral malleolus and (L) foot dorsal aspect. X-rays NAD."

No reference is made to head injuries or bleeding from the head. No reference is made to loss of consciousness. In 1994 the plaintiff told Dr Ewing that

"...blood from the nose and ear, and behaviour suggestive of a head injury were apparently noted by ambulance officers."

No notes were produced and the ambulance officers were not called. I find it inconceivable that such findings would be made by ambulance officers and not then recorded in the Yass Hospital notes, and I must find that this reference is but another embellishment.

The next day the plaintiff attended her general practitioner, Dr Brown. She told Dr Brown she hit her head and blacked out for, as Dr Brown's notes record

"...short time 2/60 at most."

I find it hard to believe that the plaintiff would not have told this to the Yass Hospital. The plaintiff complained to Dr Brown of a sore neck and back and headaches, but there is no record of bleeding from the head. Dr Brown's notes indicate that on examination she found the plaintiff to be

"...tender both sides of scalp - no overt bruising."

Dr Brown said in her evidence in chief in relation to this first examination that

"I felt that really any head injury seemed to have been relatively minor."

I am not satisfied that the plaintiff suffered trauma to her head as a result of this accident, which is the major factor presented as linking the accident to her epilepsy. Even without this finding, however, the medical evidence tendered to support this link is, in my opinion, not capable of satisfying me to the requisite standard of proof that the accident has caused or aggravated the plaintiff's epilepsy.

The plaintiff presented a picture of her epilepsy before the accident as being well controlled, and something that she was able to cope with well. Indeed, it must be acknowledged that the plaintiff had demonstrated that she was able to undertake tertiary studies in social work and obtain employment in this profession with her pre motor vehicle accident epileptic condition.

The defendant's case is that the plaintiff had intractable and uncontrollable epilepsy before the accident, and that a range of treatments had been tried without long term success, leaving the plaintiff with the only alternative of a temporal lobectomy, which the defendant says was under consideration at the time of the accident. On this view, the accident had no part to play in the inevitability of the plaintiff coming to surgery for a long term condition.

In a report to the plaintiff's then solicitors in December 1989 Dr Fearnside, a neurological surgeon, said

"...while it will be necessary for her to provide more information in respect of the relationship of her seizures to the motor vehicle accident, I think it is unlikely unless she sustained significant head injury that there is any contributing factor to pathogenesis of her epilepsy in respect of the motor vehicle accident."

In a later report in 1990 to a workers compensation authority he said that she suffered a mild head injury in the motor vehicle accident and

"...it is possible that this exacerbated her temporal lobe epilepsy, necessitating its diagnosis as intractable and requiring surgery. However, the epilepsy pre dated the motor vehicle accident but trauma is a known exacerbating factor."

.

Dr Iansek examined the plaintiff and reported to her solicitors in 1993. He concluded that the plaintiff would have suffered a rotational brain stem injury in the accident, which in his view exacerbated her underlying epileptic tendencies.

The most important witness in relation to the link between the accident and the plaintiff's epilepsy is Professor Buchanan, who is a specialist from the epilepsy and paediatric units at Westmead Hospital in Sydney, and who had been treating the plaintiff in relation to her epilepsy since November 1987. His reports were tendered. In his initial consultation report in 1987 he diagnosed

"Intractable complex partial seizures (temporal lobe epilepsy). No obvious benefit from medication and is fed up with 'feeling drugged'."

His notes record that a treatment plan was then discussed with the plaintiff, involving leaving things as they are, which he says was unacceptable to the plaintiff, coming off medication, taking part in a trial of a new drug, and the possibility of temporal lobectomy. It was decided to admit the plaintiff to Westmead to investigate taking her off medication.

This was done, and the plaintiff entered hospital from 16 November to 3 December 1987. During this period she came off medication, but had ten seizures during this time. The notes record that she was to be reviewed in January 1988 for

* no change * a trial of gabapentin * more serious consideration of temporal lobectomy.

Professor Buchanan's notes record that, when she presented for review on 19 January 1988 she gave a history of being back at work for the past three weeks after a holiday in Queensland. The notes then read

"42 seizures over 10 separate occasions."

The notes record that surgery was discussed in detail. The notes of the 15 March 1988 record

"9 seizures over the past 8 weeks. Had a run of 28 days without a seizure at all."

At this stage the plaintiff entered the study of gabapentin, which was conducted as a double blind study.

The plaintiff had in her evidence in chief minimised her condition in the period leading up to the motor vehicle accident. In the period of hospitalisation in November, where 10 seizures are recorded, she maintained in cross examination that her recollection was that she had only two seizures. In relation to the record in January of 42 seizures, she maintained that she did not continue to have seizures, rather, she said,

"I was going through withdrawals and had a lot of seizures."

The plaintiff denied that she had been told in November or December of 1987 that more serious consideration should be given to an operation, which is contrary to Dr Buchanan's notes. When asked

"As far as you were concerned, had there been any discussion between you and your health care providers about the prospect of a temporal lobectomy at that time?"

she replied

"Not the prospect for me, the availability of it."

In his oral evidence Professor Buchanan said that from his first consultation he was of the view that a temporal lobectomy was a treatment option that required consideration, because, as he said referring back to his report, he had diagnosed

"...intractable complex partial seizures, implying that they had not responded to medication to date."

He said that after the admission in November and December 1987 it showed that the seizures were arising from the right temporal lobe and that dealing with this surgically was a "going concern." It is apparent from the material tendered and the oral evidence that a decision to undertake this surgery is not taken lightly, and a range of specialist doctors are involved.

Dr Buchanan agreed that by early 1988 the gabapentin study was the only option short of lobectomy that was going to be tried. The plaintiff undertook this study, but as it was a double blind study, neither the plaintiff nor Dr Buchanan knew whether she was on the new drug or a placebo, or a combination.

In his report to the plaintiff's then solicitors dated 22 February 1989 Professor Buchanan says

"In more direct answer to the implication in your letter that Robyn's seizures are worse since her car accident, I have to say that I am not in a position to confirm this directly because of the relatively sporadic contact that I have had with her. However I have no doubt that Robyn has kept a record of her seizure frequency and should be able to demonstrate this point one way or the other. If there is evidence that her seizure frequency has increased, it will however be difficult to conclude whether this relates to any actual damage resulting from the accident or whether the seizure frequency has been made worse by stress and discomfort associated with the accident. The whole area of the relationship between seizure frequency and stress is an ill defined one, although I personally believe that stress does make seizures either worse or more frequent."

Professor Buchanan said in his cross examination that he adheres to this view.

I should indicate that, if this was the evidence, I am not satisfied that it amounts to a sufficient link between any stress found to be associated with the accident, and the plaintiff's condition. The doctor has indicated that he thinks there may be a link, but accepts that this is an ill defined area. I must conclude that this is more in the nature of scientific speculation than a documented link such as would allow a medical condition in law to be attributed to a factor arising from an accident. But in any event, the question of stress is controversial.

In re examination Professor Buchanan was asked whether his opinion related to the stress of the accident. He replied no, stress in general. In cross examination he had indicated that he had been aware of a number of stressful features of the plaintiff's life. He had indicated stress as a provoking factor at the time of his original consultation. He was also asked if he was aware that the plaintiff had had a termination procedure shortly before June 1988. He was aware of this, and her previous history of endometriosis, and said that he would be surprised if this was not productive of stress. The plaintiff in her evidence said that this was not stressful.

Dr Danta, a neurologist, also gave evidence of the connection between the plaintiff's epilepsy and the accident. He saw the plaintiff in November 1988, and took a history that she was unconscious for one to two minutes in the motor vehicle accident, which is not consistent with the Yass Hospital notes.

In his evidence in chief Dr Danta was guarded about the link between the accident and the plaintiff's epilepsy. He repeatedly said, when asked to predict the course of the plaintiff's condition assuming no accident, that it was most difficult to do this.

The plaintiff gave evidence that towards the latter part of 1988, after she had started work at the Royal Canberra Hospital as a social worker in the child at risk unit, she began to have seizures of a different type and intensity, which involved the lifting of her skirt and masturbation in public. The plaintiff was unaware of her conduct at the time. Dr Danta was in fact able to confirm this, as he witnessed one of these seizures while he was in the ward at the time. The high water mark of his evidence in relation to a link between the accident and the epilepsy occurred in the final question in his evidence in chief:

"But in the event of this type of conduct not having manifested itself before, that is, undressing and/or masturbation in public, absent the accident on the balance of probabilities would you expect this to have occurred? This change?---Well, given that the accident aggravated the epilepsy, one would then have to describe this type of attack being produced by the accident by aggravating an epilepsy but the mechanism of such change is not know(n)."

This answer contains the same difficulty with the high water mark of Professor Buchanan's stress-epilepsy link, that is, it does not explain the mechanism for such a link, which seems to me to be fatal in establishing causation to the relevant standard of proof. In any event in cross examination Dr Danta was taken to evidence of a nurse who had worked with the plaintiff in Queanbeyan, who gave evidence of fits at work before the accident, involving the ruffling around of her skirt and of going to the bathroom. Dr Danta described this as "similar" to the behaviour that he saw. Dr Danta said that a range of factors, particularly medications, could impact on a change in behaviour patterns in seizures.

I am not satisfied, from all of the material before me, that a link has been established between the motor vehicle accident and the plaintiff's epilepsy, which I find to have been a long-standing condition, diagnosed as "intractable" well before the accident, and with surgery identified as the appropriate course well before the accident. I do not find that the surgery is linked to the accident.

The plaintiff claims that her jaw has been subject to problems since the accident. The medical records do not confirm complaints of problems with her jaw until after her surgery for epilepsy. I am not satisfied that there is any link between the plaintiff's jaw problem and the accident. I note that in the opinion of Dr Coren, who performed surgery to her jaw in 1993, this condition was a sequelae of the 1989 craniotomy, which I have found not to have been linked to the motor vehicle accident.

The plaintiff also had some difficulties in relation to tear production in the right eye, which required treatment by Dr Hilton, an Ophthalmic Surgeon. He was of the view that the damage to the nerve which caused that condition occurred at the time of the craniotomy, and as I have found that this was not linked to the motor vehicle accident, I must exclude this as an accident caused condition.

The plaintiff claims to have been suffering from neck and back pain since the motor vehicle accident. Persons who have worked with the plaintiff over the years since the accident gave evidence to say that the plaintiff appears to move uncomfortably, and limp. Dr Brown, her general practitioner, noted pain from whiplash injury at the time of the accident.

There have been statements from the plaintiff which have downplayed the presence of a neck or back condition. In 1990 the Commonwealth Medical Officer found that she was unfit for appointment on the grounds that her neck and back problems would be likely to generate a need for excessive sick leave. The plaintiff disputed this. She submitted a report from Dr Newcombe dated 1 May 1990 which said that

"The only established cause for her sick leave in the next three years is the cranioplasty booked to take place on 1 July."

She said in her letter to the Commonwealth Medical Officer of 3 May 1990 that she had

"...continued to work under the duress of pain and stress."

Dr Brown, her general practitioner, certified her as fit to undertake medical studies on 17 December 1990, noting

"MVA June 1987. Soft tissue injury - rehabilitated - returned to work."

The plaintiff clearly was keen to undertake studies at the University of Newcastle in 1991. I do not take the plaintiff's attempts to challenge the Commonwealth Medical Officer's findings in April 1990 or her certificate obtained from Dr Brown in December 1990 as conclusively establishing that her soft tissue injuries had resolved by that time.

The plaintiff underwent a variety of tests under the care of Professor Bogduk at the Cervical Spine Research Unit at the University of Newcastle from late 1991 to July 1993. Professor Bogduk diagnosed her as suffering from cervical zygapophysial joint pain. He formed the view that this contributed to her inability to succeed in her attempted medical course. He continued:

"Mrs McIntosh's prognosis is at best guarded and at worst dismal. Cervical zygapophysial joint pain as a diagnostic entity has only recently come to be recognised. There are no established means of therapy."

Professor Bogduk added a paragraph to his report which I will set out in full. He said:

"In anticipation that my remarks and any other reports from the Cervical Spine Research Unit may be severely contested, may I point out that Mrs McIntosh has had the 'disadvantage' of having been evaluated by a leading international research unit. Consequently, our diagnosis may be portrayed by others as 'avant garde' or 'not generally accepted'. However, these remarks, if made, reflect the lack of familiarity with research developments in this field by those who utter them, and do not detract from the legitimacy of our diagnosis or the techniques used to make it."

The medical evidence from the defendant in relation to the lumbo sacral spine supports the existence of an injury and a degree of disability, but not the diagnosis or prognosis of Professor Bogduk.

Dr Cairns, orthopaedic surgeon, reported to the defendant in December 1993. He said

"In respect of her lumbar sacral spine, it is possible that she sustained an injury to the lumbo sacral area in the motor vehicle accident in question, and this is supported by CT scan which suggested a central disk bulge at the L5/S1 level. While this would likely cause some low back discomfort, possibly pain from time to time in relation to activities such as bending or lifting, I do not believe that she is significantly disabled to the extent that this injury, per se, would preclude her from pursuing gainful employment, particularly that of a light manual nature, or those involving sedentary, mixed sedentary or standing, sales, supervisory or administrative work, in pursuit of her occupation as a social worker in which she is currently employed."

He also noted that she was predisposed to further deterioration which could require surgery in the future, although he saw this as a possibility rather than a probability.

Dr Cairns essentially repeated these views in a report of May 1996, when he had the advantage of MRI scans which confirmed a disc bulge at L5/S1. At that time the plaintiff was working for 15 hours a week, and Dr Cairns expressed the view that her disabilities would not preclude her continuing with her employment.

Dr Newcombe, in a report of May 1992, says that the plaintiff suffered musculo ligamentous strain in the accident and may have suffered intervertebral disc problems. He noted ongoing neck and back pain and disability. This report is quite consistent with Dr Cairns' report, which had the benefit of imaging which confirmed a disc bulge at L5/S1.

I prefer the diagnosis of musculo ligamentous strain and disc bulge at L5/S1 to Professor Bogduk's diagnosis of cervical zygapophysial joint pain. Professor Bogduk acknowledged that this diagnosis is 'avant garde'. Dr Cairns expressed the view that, within orthopaedic circles, Professor Bogduk's views

"...are at times considered to be, even by his own description, 'avant garde' or 'not generally accepted' or occasionally 'controversial' as viewed by others. In particular, his stated opinions regarding cervical zygo-apophyseal joint pain could be considered somewhat controversial in that problems arising from these joints are usually accepted as being part of a more extensive disturbance in function of a mobile segment and secondary to disc pathology unless specific injury to the zygo-apophyseal joint, such as fracture or dislocation, can be identified."

In the present case, Dr Cairns acknowledges the presence of disc pathology. Complaints of long-standing and quite disabling neck and back pain are not infrequently encountered in circumstances where no objective material from x-rays, CT or MRI scans discloses abnormalities. I have no doubt that Professor Bogduk's researches are important, but at this time I must conclude that he is developing a hypothesis and diagnosis that is not generally accepted (which he indeed acknowledges). A more conventional diagnosis can explain the plaintiff's presentation, and I accept this, which is also consistent with a report obtained by the plaintiff from Dr Andrews in 1992, where he diagnosed cervical facet joint strain and an L5/S1 disc lesion which may or may not require a laminectomy or discectomy in the future.

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 assessing damages in this case I must restate my findings in relation to the injuries attributable to the accident. I find that the plaintiff suffered soft tissue injuries to her cervical spine and an L5/S1 disc lesion. I do not find that the accident aggravated her epilepsy. It follows that I do not find any link between the accident and the later surgical procedures directed towards the plaintiff's epilepsy, and the consequences of those procedures.

In assessing general damages I accept the plaintiff's evidence that prior to this accident she was an active young woman, interested in skiing and other activities which are now precluded due to her ongoing neck and back pain. I also accept that the plaintiff's accident caused disability has had an adverse impact on her weight, as a result of her inability to properly exercise. I must also be mindful of the plaintiff's other difficulties in assessing the impact of her neck and back injuries.

The plaintiff claims that her neck and back condition was critical in her failure to successfully complete undergraduate medical studies at the University of Newcastle. While this is of course relevant to the plaintiff's claim for economic loss, it must also, if made out, sound in general damages, and it is appropriate that I review this question at this point.

The plaintiff twice attempted, but failed to pass, the first year of the University of Newcastle medical course. A report from Associate Professor Powis, Chair of the Admissions Committee, said that the plaintiff

"...undertook the first year of the course in 1991 but failed the end of year assessment at both attempts. During the final assessment she suffered a temporal lobe complex partial seizure and subsequently requested 'special consideration', which was granted."

Dr Powis concluded his July 1993 report by stating

"I am unable to give an opinion on the part played by her neck injury in her failure in the course."

In January 1992 the plaintiff requested permission to repeat Medicine I, which cited a range of personal reasons, including moving home and wedding preparations. as reasons for her request. She also said

"I will be able to concentrate better this year as my chronic neck condition will be treated continuously."

In a file note of 3 March 1992 Dr Powis recorded that the plaintiff had stated that the consequence of her cranial surgery

"...resulted on her own report in a loss of short term memory and other intellectual skills which she had possessed."

A neuropsychological report tendered by the plaintiff by Dr Ewing of March 1995 found that the plaintiff had, as a result of her temporal lobectomy,

"...a clear discrepancy between verbal and visual memory post-operatively, consistent with her right temporal lobectomy (with mild impairment on visual memory), difficulties with sustained attention and tendency toward disinhibited verbosity and poor modifications of errors on complex tasks."

Dr Ewing offered the view that

"The combination of inefficient organisation of new material and visual memory difficulties are likely to underlie Robyn's problems in recognising teachers at different schools and retrieving their associated information. Her organisational and expressive difficulties may also have been the central factors in her difficulties with further study."

Professor Buchanan, who had the carriage of the plaintiff's epilepsy treatment and surgery, expressed the view in his oral evidence that he did not think the study of medicine was appropriate for the plaintiff.

I note that Professor Bogduk expressed the view that the plaintiff's neck and back condition prevented her from successfully completing medicine. The plaintiff was strongly of this view, and said that her epilepsy was no longer a factor. On all of the evidence, I cannot accept this view. I note that Dr Cairns said

"I would concede that the postural attitudes required of prolonged study are such as to be likely to cause aggravation of neck disability, but it is possible by adopting compensatory methods, such as positioning of books etc and taking regular breaks, to overcome such difficulties to a large extent."

I find that the plaintiff's medical studies did aggravate her neck and back pain, but I do not find that this was the reason for her failure to successfully complete her medical degree.

The plaintiff painted a grim picture of the extent of her neck and back pain. In her evidence in chief she described it developing over the six months after the accident to a point where

"I was in agony. Down my arms into my wrists were really bad, across the top of my hands, mostly my neck going across my face up to here and down, sides of the forehead, pain radiating down both arms into the wrists, the top of your hands radiating up to both sides of your temple region, forehead, trouble with headaches. I began to have migraine type headaches. They were really severe. I started blindness where I'd only half see things."

The plaintiff maintained that her condition has stayed like this since six months after the accident, although

"I think I just tried to cope better."

It is very hard to reconcile this description with much of the medical evidence and the plaintiff's own efforts in 1990 to remain in the public service and later to commence studies at the University of Newcastle where she obtained statements that her neck and back condition were not unduly troubling her. It is also difficult to reconcile this evidence with the fact that the plaintiff has worked as a social worker for some years now, albeit for less than full hours, and with a degree of difficulty discernible to her colleagues.

The plaintiff's husband gave evidence that the plaintiff can do some light household duties and light gardening and they do try to maintain a social life. The plaintiff and her husband take part in shooting as a form of recreation at a local pistol range.

The defendant submits that the plaintiff is feigning or exaggerating all her symptoms, and is entitled to compensation only on the basis of soft tissue injury persisting to 1990, when she sought to remain in the public service, with some aggravations since. I do not accept this. The medical evidence, including that tendered by the defendant, supports the view that there is a degree of disc damage as well as soft tissue injury, productive of ongoing pain. It has had an adverse impact on the plaintiff's enjoyment of life which will continue in the long term. I assess general damages in the sum of $45,000. As this will be a long term loss, I attribute $20,000 to past loss, generating interest of $3,692, making a total award of general damages of $48,692.

In relation to economic loss, the plaintiff's primary submission, premised on a link between her epilepsy and the accident, is that she should be assessed on the basis of an ongoing loss based on possible earnings as a doctor. As I have not found a link between the accident and the epilepsy, and between the accident caused neck and back problems and the plaintiff's failure to pass a medical course, this is inappropriate. A complex loss assessment report based on these assumptions was tendered for the plaintiff. As I have found that her epilepsy was not linked to the accident, these calculations are not relevant. However, I do find that the plaintiff suffered neck and back injuries as a consequence of the accident, and these have impacted on her past income loss, and will continue to impact on her future earnings. The economic loss report does provide for a range of contingencies which allow me to make findings in respect of past income loss and future loss.

The report from Sothertons Accountants dated 10 March 1997 calculates a net loss of $171,198 from the date of the accident to 10 March 1997, assuming that she otherwise would have continued in full time employment as a social worker at the PO2 range. This finds a potential net income of $246,963 less actual earnings of $75,765. This of course fails to take into account to time the plaintiff had to take off work due to her epilepsy and associated surgery, and her decision to leave the workforce and study full time for two years.

The accounting report calculated that the net salary for a PO2 Social Worker at March 1997 was $643 per week, and that the equivalent net earnings for a person working 15 hours per week would be $298. This amounts to a loss of $345 per week, or some $17,940 per year. The plaintiff has, however, worked for periods greater than 15 hours a week.

The plaintiff was off work for some weeks after the accident. She returned to work briefly in mid July 1988, but was then certified off work to 15 August 1988. On 25 July the plaintiff was the passenger in a car involved in a minor accident at Cooma, but I am satisfied that nothing turns on this. The plaintiff returned to work at 15 hours per week in late August. In early October 1988 she commenced full time work at the Royal Canberra Hospital. She was certified as unfit for work by Dr Brown from 28 November 1988 to 28 January 1989 for major whiplash injury and increased seizure frequency. The plaintiff did not return to work in January 1989. It was in this year that she underwent the lobectomy. She underwent rehabilitation in October. She started a return to work program in November 1989, and by February 1990 was able to work 25 hours per week.

She continued to work on this basis until her appointment was annulled in August 1990. In January 1991 she commenced studies at the University of Newcastle, and continued in her efforts until her unsatisfactory results in December 1992.

The plaintiff was certified as unfit for work by Dr Sules, of Professor Bogduk's unit, from May to November 1993. In June 1993 she moved back to the ACT, and obtained a temporary social work position for 15-18 hours per week in July 1993.

Jaw surgery was performed by Dr Coren in September 1993, and Dr Brown certified her as unfit for work from November 1993 to February 1994.

In April 1994 the plaintiff obtained a part time social work position as a school counsellor, working 18 hours a week, but reducing this to 15 hours. She has broadly worked at this level to date of the trial.

Given the range of complex medical procedures that the plaintiff has had to undergo in the years since the accident, which I find to be unrelated to the accident, and the period she devoted to attempting medical studies, a precise mathematical model of her past earning loss, as set out in the accountancy report, is not feasible.

I award the sum of $30,000, inclusive of interest, in relation to past wage loss. I assess this on the basis that, in those periods when the plaintiff was not prevented from working due to unrelated conditions, or an election to undertake medical studies, she was by reason of her accident related injuries precluded from full time duties as a social worker, but that her limitations were not such as to limit her to a maximum of $15 hours per week.

In relation to future wage loss, I am satisfied that the plaintiff continues to have difficulties. I note however that she has in the past worked for up to 25 hours per week. I am not convinced that she is limited to her present 15 hours a week until normal retirement age.

Dr Iansek, a neurologist, examined the plaintiff in December 1993 and suggested that her neck and back symptoms would

"...impair her capacity to work in her previous capacity, but she should try and increase her work load according to her capacity."

Dr McGrath, a consultant in occupational medicine, examined the plaintiff in May 1996 for the defendant and reported in July 1996. He noted that she was then working 15 hours per week, and said

"Her physical problems essentially arise from the C2/3, C5/6 and L5/S1 joints of her vertebral column. There has been no response to treatment thus far. It is likely that these injuries would reduce her work capacity."

Those doctors on whom the plaintiff relies for a view that she is unable to work beyond her present hours, in particular Dr Brown, are dependent on the plaintiff's claims of pain.

I have had difficulty accepting the plaintiff on much of her evidence in this regard, and have found her to exaggerate. Nevertheless, there is evidence, from the defendant, that supports the view that there is an ongoing disability, relating to the plaintiff's physical capacity. Other medical experts for the defendant have expressed the view that the level of ongoing pain produced by her soft tissue injury and disc bulge would not preclude her from pursuing light work such as sales or supervisory work, or her present occupation as a social worker.

Counsel for the defendant urged that, on this basis, there should be no finding of ongoing loss. I cannot accept this. This seems to me to be an appropriate case, taking into account all of the evidence, for a buffer of modest but realistic proportions to reflect an ongoing limitation.

Taking into account all of the evidence, I award a global buffer for future economic loss in the sum of $40,000.

There is a Griffiths V Kerkemeyer claim for ongoing home help. This is presently being provided by way of a cleaner at the rate of $50 per week, for assistance with heavy cleaning duties. The evidence justifies a finding of a present and ongoing need for domestic assistance at the rate of $50 per week. This was in effect conceded by counsel for the defendant at least so long as disability remains. Professor Bogduk said that the plaintiff would need assistance, indefinitely, at the rate of four hours per week. These views were supported by Dr Brown. The claim for home help was based on a rate of $15 per hour, that is $60 per week, although $50 is the present rate, and I think this is more appropriate. This generates a sum of $66,884 taking into account the expected life of the plaintiff with a 3% discount. Given the findings I have made about the plaintiff's condition, a finding of an ongoing need at about the present level is made out. I award $66,884 in relation to ongoing home help.

Total out of pocket expenses to date, including some incurred but not paid by the date of hearing, were agreed at $123,338.04. It was further agreed that, of this amount, the sum of $29,558.48 was attributable to treatment for the plaintiff's epilepsy and jaw surgery. This leaves a sum of $93,779.56 for out of pocket expenses to date related to her accident caused disabilities, which I award.

There is a claim for a Fox v Wood component of $11,308.19, which I award.

The plaintiff's claim for future out of pocket expenses set out a range of medications which she presently takes, amounting to $589.10 per annum. Of these medications, I find that Digesic, Panadol, Neurofen, Naprosan and Zantac are associated with her accident caused disability. This amounts to a claim for ongoing medication in the sum of $385.26 per annum, or $7.40 per week, which would amount to a lifetime expense of $9,899 in relation to medications.

The plaintiff also claims for ongoing massage, at $50 per week, which her general practitioner says affords her relief, and for visits to her general practitioner at some $550 per year and also specialist visits.

There is also a claim for a special pillow at $38.95, of which her general practitioner thinks she may need four per year.

As I have already indicated, I am not satisfied that the plaintiff's condition is as serious as she claims. I am not satisfied that an ongoing claim at this level is made out. While the weekly $50 massage is therapeutic, I am not satisfied that it is a justifiable claim on the defendant indefinitely.

I award the sum of $15,000 for future out of pocket expenses as a global sum.

This amounts to a total award of $305,663.75, which I consider to be appropriate in all of the circumstances, and award, with costs.