Jennifer Ann Freebody v Suzanne Theresa Thompson [1997] ACTSC 9 (21 February 1997)

SUPREME COURT OF THE ACT

JENNIFER ANN FREEBODY v. SUZANNE THERESA THOMPSON
No. SC1747 of 1986
Number of pages - 14
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Hip Injury - Post traumatic stress disorder - Panic attacks - Excessive Alcohol Consumption - Whether symptoms attributable to accident - Future Economic Loss - Incapacity to work largely due to psychological condition - Likelihood that psychological condition will resolve itself in the future - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 136 ALR 1

HEARING

CANBERRA, 26-28 November 1996 21:2:1997

Counsel for the Plaintiff: Mr R Crowe Instructing Solicitors: Minter Ellison

Counsel for the Defendant: Mr L M Morris QC and Mr R McIlwaine Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $470,374.31. 2. The defendant pay the plaintiff's costs.

DECISION

MASTER T CONNOLLY
1. This is a claim for damages for personal injuries resulting from a motor vehicle accident sustained on 17 July 1986. The accident occurred as the plaintiff was driving her car, a small Mini Minor along Goodwin Street in Lyneham in the Australian Capital Territory. The accident occurred due to the negligence of the defendant in failing to observe a give way sign, and liability for the accident was not in issue. The matter proceeded by way of an assessment of damages, with the plaintiff's case being that she has suffered from about 1992 a virtual total incapacity to work as a result of the accident, with such incapacity likely to continue. The defendant denies that the plaintiff's present incapacity, to the extent that it exists, is due to the accident. The defendant chose not to tender any medical evidence, and it's case relies on an attack on the credibility of the plaintiff and cross examination of the plaintiff's medical evidence.

2. The plaintiff was born in 1958 and was educated to fourth year high school at Catholic Girls High School as it then was in Braddon in the Australian Capital Territory. She then commenced work in a bank for a couple of years, before taking a job as an account credit clerk for a major hardware store in Braddon. While employed she was also working part time as a housemaid at a motel and a waitress at a club. She suffered a minor injury in a fall from a trail bike in 1981. I am satisfied that this has had no ongoing impact, but it forms a part of the picture of a young woman in full time employment, also working part time and with an active life.

3. Shortly after this incident she joined the Australian Public Service, initially as a base grade clerical assistant in the Department of Employment. In July 1994 the plaintiff took a year's leave without pay from the public service and embarked on an overseas tour. The plaintiff travelled overland from Singapore to Europe, alone as far as Nepal and then with a group of other young people on to London. Like so many young Australians she then found temporary employment in Britain in order to fund her further travels, including purchasing an old bus to travel around the continent. She worked as an account clerk in Britain, and received computer training as the firm she was working for moved from a manual system to a computer system.

4. On her return to Australia her she returned to her old job, but her Department was in the process of bringing in computers, and with her recent experience she was able to move into this area. She achieved promotion to a clerical assistant grade 4 by February 1986. I am satisfied from the evidence of the plaintiff, and of her mother and her husband, that at the time of the accident she was fit and active, with a broad range of sporting and social interests, and was developing her career.

5. The accident occurred as the plaintiff was returning home from work. The plaintiff was proceeding at normal speed when her car was struck on the right hand side at her shoulder level. The car spun, and mounted the footpath, before striking a tree and coming to rest. The plaintiff was trapped in the vehicle, and was extracted by ambulance officers and taken to hospital, where she was examined and then allowed to return home with her parents. I have no doubt that the impact was of very considerable force. The plaintiff gave evidence that she felt for a moment that she was dead, and that she saw people looking at the scene without apparently trying to help until a passer by on a push bike called for assistance.

6. The plaintiff was taken to hospital and x-rays were taken, which showed no abnormalities. She was discharged into the care of her parents, and saw her general practitioner. At this stage the diagnosis was of soft tissue injures, and her pains were expected to resolve. Her general practitioner reported in September 1986 that "The conclusion I arrived at was that she had sustained deceleration injury to the neck and back (whiplash) and that there was no injury to the bony structure."

7. The plaintiff returned to work in August 1986 on a part time basis, and resumed her full time employment in early 1987. She said "What happened was that I had a very sore neck and shoulder and lower back when I first had the accident. Over the next couple of months the neck and back-the neck and shoulder started to settle down, but what was persistent was this terrible pain in my lower back and hip."

8. In February 1987 she was referred by her general practitioner to an orthopaedic surgeon, Dr Peter Morris, who diagnosed "quite severe soft tissue injuries", which he expected to settle with time. Dr Morris detected a click in her right hip, but he did not think that this was significant. At around this time the plaintiff saw Dr Ann Hosking an obstetrician and gynecologist about some gynecological problems which she thought may have been related to the accident. Dr Hosking's report of May 1987 concluded that there were no serious problems, but did state that "the right hip which was injured at the time of the accident aches when she has her period", and she relates this to the accident. This report is relevant in that it confirms that there have been ongoing complaints about the hip, and this counters any suggestion that the hip injury only developed some considerable time after the accident.

9. The plaintiff's right hip has continued to cause her problems, and has been extensively investigated, with many years passing before a conclusive diagnosis has been provided. These have included investigations by Dr Andrews, a consultant neurologist, who reported for the defendant insurer. His reports were however tendered as a part of the plaintiff's case. Dr Andrews in his report of May 1987 referred to an audible click in the right hip which was reproducible and associated with pain. He was unable to provide a conclusive diagnosis, but he did say "The problem in the right hip is obviously genuine. I am not sure as to the exact nature of this but it wasn't present prior to the motor vehicle accident so I assume it is the result of some injury to the right hip at the time of impact."

10. The plaintiff has also been examined for the defendant by Dr Corry, consultant in rehabilitation medicine, whose reports were also tendered as part of the plaintiff's case. In his report of August 1992 he confirmed marked muscle weakness on examination in abduction, flexion and extension of the right hip joint. He also reported an audible click in the hip. He said that the history was consistent with the plaintiff "...sustaining general soft tissue injuries and bruising, emotional shock and a whiplash type trauma to the cervical region in the motor vehicle accident described. These general symptoms have settled progressively, although they took some time. It appears that she had problems relating to the right hip area from the time of the accident, and this is now her most persistent and disabling disability. She has been extensively investigated, and no clear structural damage has been identified. At my examination today there was significant weakness around the hip joint and lower back region. This is of sufficient degree to lead to instability in the lower lumbar segments and the hip joint. It is possible that these weaknesses are now her major pathology, and leading to instability and recurrent pain. She has become very fearful and consequently is restricting a wide range of more active pursuits."

11. The medical evidence tendered on behalf of the plaintiff traces many attempts over a decade to provide a diagnosis of this ongoing hip complaint. A specialist rheumatologist, Dr Duncan, finally provided a diagnosis in May 1995 on the basis of extensive investigation that the plaintiff's pain "...emanates from her right sacro-iliac joint and that she suffers from a degree of pelvic instability as a result of her motor vehicle accident in 1986. Pelvic instability is a poorly defined condition wherein the structural integrity of the pelvis is compromised at one of its tree junctions - two sacro-iliac joints posteriorly and the symphysis pubis anteriorly. The bone scan in this instance confirms abnormality in both sacro-iliac joints. In this specific context the abnormality in the sacro-iliac joint and certainly the nature of her pain is quite consistent with this diagnosis. The prognosis with this condition must be very guarded in view of the chronicity of her symptoms. It is likely that the instability in her pelvis as a result of previous injury is permanent. Physical therapy and strengthening in conjunction with the use of pelvic braces or trusses sometimes reduces the symptoms. The pain is usually aggravated by any form of physical activity or stress on the pelvis."

12. Dr Andrews seems to accept this diagnosis. Dr Corry has also noted this diagnosis, but says that these symptoms "...cannot be related in their entirety to injuries that may have been sustained in a motor vehicle accident in 1986." Dr Corry recommended further investigations to the insurer, but no additional medical evidence has been tendered. There is a suggestion from Dr Corry that the investigations from Dr Duncan which led to his eventual diagnosis indicate bilateral deterioration. Counsel for the defendant strongly urged that this would indicate that the condition was pre existing. This is, however, a tentative view from Dr Corry, and he expressly recommended a psychiatric and rheumatological opinion be obtained by the defendant. The plaintiff's expert evidence, which is from her treating rheumatologist, favours a connection with the motor vehicle accident. I am satisfied on all of the evidence that the plaintiff's hip condition can be attributed, on the balance of probabilities, to the motor vehicle accident.

13. In addition to the physical symptoms attributable to the accident the plaintiff claims a significant psychological condition. She claims that, starting from about six months after the accident she has been suffering from panic attacks, which are quite disabling. A consultant psychiatrist, Dr Glaser has examined the plaintiff for medico legal purposes and has prepared a series of reports, in which he concludes that the plaintiff is suffering from a chronic post traumatic stress disorder. He attributes this condition to the motor vehicle accident. It is the defendant's case that any psychiatric condition which the plaintiff suffers is as a result either of a series of miscarriages or excessive alcohol consumption. The defendant did not tender any expert evidence in relation to this condition.

14. The psychological condition is the principal cause of the plaintiff's inability to work. I am satisfied that, once the generalised soft tissue injuries arising from the accident subsided and she returned to the workplace, she performed her duties effectively, albeit with her ongoing hip problems. As Dr Glaser points out, there were ongoing difficulties in providing a diagnosis for this complaint and he notes that it was not until mid 1995 that this condition was properly diagnosed. Dr Glaser says in his report of October 1985 "Although this diagnosis did not result in any change in her treatment, it helped her peace of mind somewhat because, until that time, she was 'convinced that her symptoms were really in her mind' and was worried that there was no physical basis for them."

15. The plaintiff gave evidence that her first panic attack occurred some six months after the accident in a theatre in Sydney where she was attending a performance of Cats with friends. She says that she had a feeling that she was going to fall down, and "It got so bad that I had to crawl out of the theatre." She left the theatre and caught a bus back to Canberra, and experienced a second attack on the bus trip back. She says that she hoped that these attacks would stop, but that they continued through 1987. The plaintiff first sought medical advice about these attacks in mid 1988. She said that the reason for the delay in seeking advice was "I was so embarrassed. I had been in a car accident, I had pain, no one could tell me what the pain was. I was trying to get back to work, I was trying to be normal, and then all of a sudden I start to be scared of life. I couldn't share that with anyone." The plaintiff said that she didn't even want to acknowledge to herself the extent of the problem, but went to see Dr Lennon when the attacks were becoming more frequent.

16. Dr Lennon's notes were tendered as part of the defendant's case. The defendant put to the plaintiff that the doctor's handwritten notes record, on 6 September 1988, "Claustrophobia started one year ago in a theatre." The plaintiff agreed that she gave this history, but was adamant that the first attack was not 12 months before, that is in September 1987, but some six months after the accident, that is early in 1987. Counsel for the defendant acknowledged that a symbol that appears in the handwritten notes between "started" and "year ago" means "approximately", so that the notes in fact record "started approximately one year ago". This is significant, and was properly referred to by counsel for the defendant in his closing address, although the defendant's case is still that the delay between the accident and the first report of symptoms makes it unlikely that the symptoms are attributable to the accident.

17. Dr Glaser's reports were premised on the history that he had taken of the first attack occurring some six months after the accident, but he said that, if the correct history was that the first attack did not occur until twelve or fourteen months after the accident, he would still attribute it to the accident.

18. The defendant placed considerable reliance on the plaintiff's experience of a number of miscarriages as the primary factor behind any psychological difficulties which she may have experienced in recent years. I was asked to make findings adverse to the plaintiff's credit on the basis that she did not divulge these miscarriages in her evidence in chief. There was, however, reference to these events in the expert medical and psychological material tendered by the plaintiff. During cross examination focusing on the miscarriages the plaintiff was clearly distraught. I accept that these experiences caused considerable and understandable distress at the time, and that they are still painful and distressing for the plaintiff. Dr Glaser in his reports was clearly aware of two miscarriages. He acknowledged in cross examination that the 1992 miscarriage, which occurred just before the overseas trip where the plaintiff developed major symptoms, was a traumatic event for her. But in re examination he denied that the plaintiff's present condition is caused by the miscarriages. He stressed the report from Dr Danta which indicated psychological problems before the miscarriage. He continued "The situation with the miscarriage I think I'd summarise like this. Obviously, depending on the nature of the miscarriage and, you know, what stage of the pregnancy she had it, whether physical problems accompanied it and so forth, it may have had an effect on her psychological state that can't be denied. However, looking at the overall context of this lady's history, particularly of the fact that she was having definite identifiable symptoms well before the miscarriage, I think that it would be very reasonable to take the view that this lady's current symptoms would not have been as prolonged or persistent or severe if she had not been involved in that motor vehicle accident in whatever it was, '86. So the miscarriage made a contribution in the way of an aggravation or exacerbation of her symptoms at the time, but I think that the major contribution to this lady's - to the persistence of this lady's current symptoms really arises from the effects of the motor vehicle accident."

19. The evidence establishes that each miscarriage was at a very early stage of the pregnancy. While this was no doubt distressing, counsel for the plaintiff did strongly point out that in the addresses there had been reference by the defendant to an advanced miscarriage.

20. In the absence of any contrary medical evidence I accept Dr Glaser's opinion.

21. Dr Glaser was cross examined at some length as to the relationship between alcohol consumption and panic attacks. It was put to him that in this case excessive alcohol consumption was a likely cause of panic attacks. While he acknowledged that there was a correlation noted in the literature between excessive alcohol consumption and panic attacks, he maintained his view that this was not the case here, and that the plaintiff's psychological condition can and should be attributed to the motor vehicle accident.

22. The defendant placed some reliance on a report from Dr Goldrick in 1985 to establish a pattern of excessive alcohol consumption. Dr Goldrick saw the plaintiff in December 1985. His report to the plaintiff's general practitioner notes that the plaintiff had, on her return to Australia after a year's travel, been "...wined and dined by her mother with much food and alcohol and was sick for two weeks." He also referred to some difficulties with her then boyfriend. Dr Goldrick reported that she "...has been suffering from vascular headaches plus a fatigue syndrome without obvious cause. She does not appear to be tense or depressed but she does smoke heavily and of course has recently been exposed again to fairly hefty doses of Australian wines. I have therefore advised her to stop smoking, resume a regular exercise program and be fastidious about her choice of alcoholic beverages. Possibly a brief spell on French wines, even though expensive, might be accompanied by fewer headaches."

23. Dr Glaser said that this report did not change his opinion, and he noted that the thrust of the report - described by counsel for the defendant as "...put her on a more expensive line so she would drink less" was not what you would expect if a patient had a severe alcohol problem.

24. I accept that a long history of excessive alcohol consumption could lead to panic attacks, as was acknowledged by Dr Glaser, but in the absence of any contrary specialist psychological opinion, I am satisfied that the plaintiff has established on the balance of probabilities a connection between her post traumatic stress condition and the motor vehicle accident in 1986.

25. While the medical evidence establishes that the plaintiff's physical condition is likely to be chronic and permanent, the evidence indicates that her psychological condition may well improve. This is the plaintiff's own view, but it is fair to say that she is of course not an expert, and naturally hopes for an improvement. To the extent that the plaintiff has expressed these hopes it rather goes against suggestions that she is inflating the extent of her disabilities, which is central to the defendant's attack on her credibility.

26. Having found that the plaintiff has established to the requisite standard of proof a connection between her physical and psychological condition and the motor vehicle accident it is necessary to establish the extent to which these conditions have impacted on the plaintiff's life and ability to work in order to assess damages.

27. 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) 136 ALR 1 where his Honour said (at 4): "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'."

28. The plaintiff's case is that the physical disability has significantly impacted on her social and recreational opportunities, and has been an irritant in her ability to work. But she did return to work after the accident and indeed during the period of the late 1980s and early 1990's she achieved promotions to a quite senior public service position, where she was involved in computer training in her department. The plaintiff's case is that her psychological condition, which is attributable to the accident, caused her to break down completely in 1992, and has been the cause of her continuing and on going inability to work.

29. The defendant squarely challenges the plaintiff's credibility in these claims. The defendant's case is that the plaintiff is quite capable of work, and has chosen to stay at home in receipt of ongoing compensation payments from Comcare and in the hope of a substantial award of damages. The defendant produced and tendered extensive video material which it argues substantially undermines the plaintiff's credibility. Having viewed this material and the cross examination which flowed from it, I remain satisfied of the credibility of the plaintiff on the essential aspects of her case. I will deal with a number of points in the plaintiff's case which, it was argued, were undermined by the video material.

30. The plaintiff has said to a number of doctors that she experiences anxiety when driving. But she has not denied that she does drive herself . Her husband is a car enthusiast, and gave evidence that he supports his hobby of restoring classic American cars, such as a Ford Mustang from the mid 1960's, by making his cars available for hire for wedding parties. The plaintiff acknowledged in cross examination that she has on occasions accompanied her husband and driven one of these vehicles as part of a wedding party in Canberra on weekends. I do not find that this undermines her evidence. The video material showed the plaintiff driving, but it also showed the plaintiff often as a passenger. On one such occasion the plaintiff was shown sitting in a friend's car obviously looking after the friend's children while the friend did some quick shopping. It is obvious from the film that the plaintiff and the children are singing. I cannot accept that this is inconsistent with the plaintiff's claim that she is generally uncomfortable in cars.

31. The plaintiff also has said to a number of doctors that she is limited in her ability to shop, both in respect of her physical capacity and her psychological state. She indicated in her evidence that she accompanies a friend to the Fyshwick markets on a regular basis on Fridays, if she feels up to it. Video material was shown of the plaintiff walking about the markets with her friend, and carrying some light purchases. The video film also showed that when a substantial and heavy quantity of fruit and vegetables was purchased from one stall, the carton of produce was carried to the friend's car by an employee. This is entirely consistent with the plaintiff's evidence. Extensive film of the plaintiff sitting with a group of friends having coffee established little to contradict the plaintiff. While she has complained to doctors of "social isolation" she has not claimed to never venture out. On one occasion the video material seems to show the plaintiff exercising a degree of caution in stepping on to a footpath from a roadway, in a manner quite consistent with her claims. In none of the video material is she shown to be engaging in vigorous or inappropriate activity inconsistent with her sworn evidence. There was video material showing the plaintiff entering and then leaving the swimming pool area at the Australian Institute of Sport, but this was consistent with her evidence that, when she is able to, she tries to swim for exercise.

32. Nothing in the video material tendered in this case has led me to form the view that the plaintiff is not a witness of truth. I have had the advantage of observing the plaintiff under sustained and quite prolonged cross examination. On the whole, I accept the truthfulness of the plaintiff's evidence. It is supported by the evidence of her husband and her mother. It was argued that such evidence is of little weight, as one would expect persons close to the plaintiff to be supportive. But they appeared to be truthful witnesses. It was argued that I should, consistently with the principal of Jones v Dunkel, draw adverse inferences from the failure to call other supportive witnesses - work colleagues to confirm her declining state in late 1992, or her friend who accompanies her on Friday shopping expeditions when she is able to attend. But no doubt the same criticisms could be made of such witnesses as were made of the plaintiff's husband and mother if indeed they were called and supported the plaintiff. I draw no inference either way on this point.

33. Accepting the plaintiff generally as a witness of truth means that in respect of general damages I find a woman who has, as a result of a motor vehicle accident, suffered a major and permanent change in her life. I am satisfied that before the accident the plaintiff enjoyed a full and active sporting and social life. She engaged in snow skiing and played a range of competitive sports, all of which she now must avoid due to her hip injury. Her trek through Asia and on to Europe is evidence of an active, independent young woman. Her hip condition now requires her to exercise a degree of caution in all physical activities. Hip pain during sexual activity has had a marked effect on the plaintiff and her marriage. The psychological condition has caused the plaintiff great difficulties, particularly in the years following 1992. Hopefully, this may resolve. In assessing general damages I take all these factors into account, but I must also note that, while her claim has used the phrase "social isolation", she has maintained a circle of friends and activities. She is fully mobile, can drive a car, although she experiences some discomfort, and can engage in gentle activities, such as light gardening and swimming. Provided she exercises caution, she can be seen, as indeed she was by video camera operators, to have little apparent disability. But certainly her life is very different from what it was.

34. I assess general damages at $60,000. This sum would have been significantly lower had the case fallen to be assessed before 1992, when the plaintiff was presenting primarily for her physical problems, and it is the plaintiff's psychological problems in the recent past that have produced this figure. Taking into account the strong likelihood of improvement in her psychological condition, but the even stronger likelihood that her physical condition will be chronic, I assess $45,000 of this to past loss, generating interest of $9,547, a total general damages award of $69,547.

35. In respect of economic loss, I am satisfied that, while the plaintiff continued to work, and indeed to achieve promotion to a responsible position after the initial soft tissue type injuries subsided, her ongoing and at that time undiagnosed hip problem continued to cause her difficulties, and her psychological condition deteriorated to the point that further work from late 1992 was precluded. I accept the medical evidence that she was unfit from then and that that condition continues to the present. Counsel for the plaintiff has proposed a detailed calculation relating to her past loss, which I accept. I assess past economic loss at $143,440. There is a Fox v Wood component of $38,903. The plaintiff received compensation at her full rate of pay up to 5 May 1993. From that date she received partial compensation only. Counsel for the plaintiff has proposed a detailed calculation setting out the actual loss, which I accept, generating interest of $6,895.80.

36. Future economic loss is a more difficult issue in the circumstances of this case. The claim is particularised as on ongoing claim based on total incapacity to normal retirement age. This would not be sustainable in the face of the evidence of the plaintiff and her treating general practitioner that they believe a full or substantial recovery is likely in respect of her psychological condition, which has been the principal cause of her past total incapacity. At the conclusion of the hearing the plaintiff's counsel modified the claim, and based the claim on a total incapacity, discounted by 50 per cent to reflect the likelihood, in the plaintiff's case, that she will be able to undertake part time work in the future.

37. Dr Wright, the plaintiff's treating general practitioner, has reported that he believes that the plaintiff, while presently quite disabled, will improve significantly. He said in his report of September 1996 "Ms Fynmore's present psychological state is very fragile. She is depressed and intermittently acutely stressed by continuing hassles with her Comcare claim. Her physical condition often reflects her mood. Her (R) hip and back pain is intermittent and may at times be acutely painful and disabling and yet at other times fairly asymptomatic and normal. I believe Ms Fynmore will be able to return to work as soon as the stresses of her claims are over. I believe she would be suited to part time work where she has a good deal of control and flexibility over the working conditions, so that she may rest at short notice if symptoms occur."

38. The plaintiff's treating psychologist, Ms Geary, is of a similar view. In her report of April 1994 she said "I believe the prognosis for further reduction in anxiety and increased ability to manage pain is good.....I think that it is very likely that finalisation of the compensation claim will facilitate recovery from depression and unresolved grief." Ms Geary felt that it was unlikely the plaintiff could return to her former work, but that "...further reduction in anxiety could make it more likely that Mrs Fynmore will be able to work productively as long as the work enables her to be self regulating in, for example, her need to rest if in pain. Self employment could be an option."

39. Dr Glaser is more guarded. In his final report of October 1996 he says "This lady's mental state could improve to a certain extent with more extensive treatment. However I am left with the impression that any improvement which she might experience will only occur in the long term and she effectively is left with a permanent impairment in psychiatric terms." The plaintiff had said to Dr Glaser in the interview which was the basis of this report that she was, in the doctor's notes, "positive once this is over 100 per cent better", and he recorded this in his report, but he said that "as I pointed out in the report that followed that consultation, I felt that she was being overly optimistic."

40. The plaintiff expressed a confident view of her future in her evidence. She was asked whether she could cope with her previous work at present, and replied "I don't think at the moment that I am, but I am quite sure once all this legal business is out of the way and I can get some form of normal life - this has been going on for 10 years...I hope I can be the head of the Department...after this court case. I do not know. I certainly hope it is a brighter future than what I have got at the moment."

41. In cross examination the plaintiff indicated that she only expected part time work in the future, but I am conscious that at this point she had been quite distressed as cross examination focused on her miscarriage, and counsel, quite properly, cut short his questioning. In cross examination the plaintiff's husband said that his wife's possible return to work would be "up to her", but agreed that she continued an interest in computers, and that he hoped there would be a great improvement in her psychological condition when the court case is concluded. I note that, until the plaintiff's psychiatric condition deteriorated, she had been working more or less full time, and had achieved substantial promotions after the accident.

42. It is clear to me from this evidence that the plaintiff's counsel was clearly correct in abandoning the particularised claim for ongoing economic loss based on a total incapacity to work. At it's highest, the evidence establishes that the plaintiff could be limited to part time work, or work where she is able to take breaks. Her treating psychologist and treating general practitioner seem to be more optimistic than her medico legal psychiatrist, and on the whole I prefer their evidence. I am not satisfied that a claim for ongoing wage loss based at 50% of her previous salary, an amount which has been calculated by her counsel at some $300,000, is made out to the requisite standard of proof. Nevertheless, I can not assess the plaintiff as a person who will be able to rapidly resume full time work with no impairment or restriction, and who would be able to easily change jobs. She has, however, demonstrated skill in computing, and achieved promotions in this area before her breakdown. She remains a substantive Administrative Service Officer Class 6 in the Australian Public Service.

43. Her treating psychologist, Ms Geary, who had in 1993 assessed her as having a temporary incapacity for work, has opined in her 1995 report that the plaintiff should require a period of therapy of between six and twelve months after the matter is finalised "...to help in the resolution of grief, in the process of developing further skills in management of pain, in recovery from the psychological consequences of the compensation process, and in the development of new goals in her life."

44. I find a loss of future earning capacity based on 50% of present earnings for 2 years, a sum of $33,000. I am however satisfied that, while ongoing incapacity at this rate is not made out to the requisite degree, there does remain a significant residual disability, which, in spite of the views of her treating doctors, may not resolve as satisfactorily as hoped. This makes out an entitlement for a buffer of some magnitude. The assessment of compensation for future economic loss is always to some extent an inexact science, and this is particularly the case where a disability has been profound to the extent of forcing a person from the workforce, but is expected to improve. In such a case, rather than build assumption upon assumption to try to build an arithmetic verdict based on an assessment of present incapacity (or, as in this case, an assumption of present incapacity of 50% of earnings) a buffer is appropriate. I award $60,000 by way of buffer, leading to a total award for future economic loss of $93,000.

45. Past out of pocket expenses paid by Comcare have been arithmetically argued at $58,918.51. While the defendant has disputed the plaintiff's past entitlement to housekeeping, I find, consistent with my finding on the plaintiff's significant incapacity to work to date, that this is justified.

46. There is a claim for future out of pocket expenses of $67,830. The major component of this relates to ongoing home help of 4 hours per week at $10 per hour, generating a claim of $42,670. I note that Dr Corry, in his report to the defendant of 26 June 1996, noted that "Three to four hours of assistance with heavier domestic duties each week would seem consistent with her description of incapacity." Dr Andrews, in his report to the defendant of 22 April 1996, noted without comment that "She has a house cleaner in." Dr Duncan's report confirms the chronic nature of the plaintiff's physical condition. Given that I have broadly accepted the plaintiff as a credible witness, and with medical evidence supporting the need for ongoing assistance, I am satisfied that this part of the claim is made out.

47. A claim for future out of pocket expenses for medications is made for $25,160. This has been calculated on the basis that the plaintiff has in the past two years incurred an average of $150 per week on medications. The plaintiff accepts that this will reduce, and bases a claim on expenditure of $50 per week for three years, followed by $20 per week for the rest of her life which, when adjusted for contingencies, amounts to $25,160.

48. Counsel for the plaintiff indicated that the plaintiff had in recent years expended considerable sums on alternative medications, and that this may not necessarily continue. This was a part of his decision to reduce the amount claimed. I am not satisfied that the proposed formula for finding future out of pockets is at all precise, but I am satisfied that, given my prime finding of a genuine and ongoing physical condition, there will be a need for some legitimate future out of pocket expenses for medications. I award $15,000 in this respect, leading to a total award for future out of pocket expenses of $57,670.

49. A particularised Griffiths v Kerkemeyer claim for some $300,000 was abandoned by counsel, who correctly pointed out that much of what would be a Griffiths v Kerkemeyer claim is covered by the claim for future housekeeping expenses. In addresses a sum of $2,000 was suggested by counsel for the plaintiff to cover the efforts of the plaintiff's husband and mother, and I have no difficulty in awarding this.

50. This amounts to a total award of $470,374.31, which I award.