Branagan v Robinson & Anor [2006] ACTSC 66 (7 July 2006)

Last Updated: 12 February 2007

HEATHER BRANAGAN v REBECCA ROBINSON & ANOR

[2006] ACTSC 66 (7 JULY 2006)

NEGLIGENCE - causation - novus actus interveniens - whether sexual assault by treating health professional foreseeable

DAMAGES - personal injury - low back and neck injury - chronic pain syndrome - post-traumatic stress disorder - anxiety and depression - extensive pre-accident history of physical and psychological injury - no question of principle

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

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

National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569

No. SC 692 of 2001

Judge: Master Harper

Supreme Court of the ACT

Date: 7 July 2006

IN THE SUPREME COURT OF THE )

) No. SC 692 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: HEATHER BRANAGAN

Plaintiff

AND: REBECCA ROBINSON

First Defendant

AND: PETER WISEMAN

Second Defendant

ORDER

Judge: Master Harper

Date: 7 July 2006

Place: Canberra

THE COURT ORDERS THAT:

The parties have leave to list the action for the entry of judgment or to apply generally on two days notice.1. This is an assessment of damages for personal injury. The plaintiff, Heather Jean Branagan, was born on 18 September 1970 and is thirty-five years of age. She was unfortunate enough to be struck from behind while in the driver's seat of a stationary vehicle on two separate occasions. The first was on 26 April 2000 in Hindmarsh Drive, Weston. The second was on 4 January 2001 in Northbourne Avenue, Braddon. The first defendant was at fault in the earlier accident and the second defendant in the later one. As it happens, the same insurer is liable to indemnify both defendants, who are represented by the same solicitors and counsel. The parties are agreed that it is unnecessary for me undertake two separate assessments of damages, and that a single assessment will suffice.

2. The hearing of the action has been long and complicated. It is a notoriously difficult task to estimate the likely length of the hearing of a more complex action for damages for personal injury, even where liability, as here, is admitted. The parties appeared before the Deputy Registrar of the Court in February 2004 by junior counsel for the plaintiff and an experienced solicitor for the defendants. They agreed that the hearing would take three days. The action was fixed, on the assumption that that estimate would prove reasonably accurate, for 27 April 2004. Both the plaintiff and the defendants were represented on hearing by senior and junior counsel: by the end of the third day the plaintiff was still in the witness box, and there were many more witnesses to be called in the plaintiff's case. Senior counsel on both sides were of the view that the hearing, including addresses, might occupy a further week: I had the impression that counsel, perhaps a little embarrassed by the optimistic estimate given at the listing hearing, were erring on the side of pessimism with that forecast. The next date convenient to the Court and counsel was 23 August 2004.

3. The hearing resumed on 23 August 2004, and occupied the four days set aside. By reason of investigations carried out on behalf of the defendants during the adjournment, and of information which had become available to the defendants, the cross-examination of the plaintiff was a good deal longer than might have been assumed four months earlier, and by the end of the week we were still in the plaintiff's case. I decided that regardless of estimates I should set two weeks aside to finish the case. Regrettably the next date convenient to counsel and to the Court was not until 29 March 2005. The hearing continued for the balance of that week and into the following week, with the evidence concluding on Tuesday 5 April 2005. In all, there were nineteen witnesses called to give oral evidence in the plaintiff's case, including six medical experts. Three lay witnesses and one medical specialist gave oral evidence in the defendants' case. In addition, a substantial number of medical and hospital reports and records were tendered. At the request of counsel, I allowed a day for preparation of submissions, and counsel addressed on Thursday 7 April 2005 - almost a year after the commencement of the hearing. During that year I had heard and reserved my decision in a number of other actions, including some where the hearing had been reasonably lengthy, and, in accordance with my usual practice, I have given these priority. I generally endeavour to prepare and deliver reasons for judgment in order of completion of the hearing. In addition, where there is an extensive delay between hearing and judgment, it is expected that the reasons will summarise the evidence, set out the findings of fact, and expose the reasoning of the Court in considerably greater detail than might have been adequate had judgment been delivered soon after the conclusion of the evidence and addresses. This will explain in part the length of time it has taken me to prepare these reasons for judgment.

4. In essence, the plaintiff's case was that prior to the first, and more serious, motor vehicle collision, she was generally in good health, both physically and mentally, employed as a clerk in the Commonwealth public service with excellent career prospects; and that the injuries had affected her both physically and psychologically to such a degree that she would never work again and would require medical treatment, home help and other assistance for the rest of her life. On the plaintiff's particulars, the claim is a very large one.

5. The defendants' case is that the plaintiff, in her evidence and in the manner in which she has conducted herself publicly since the first collision, has fabricated or at least grossly exaggerated the degree of her disability for the purpose of maximising her damages. Additionally, their case is that she had significant physical and psychological problems before the collisions, such that her future prospects were doubtful, and far less rosy than painted in her case. Whilst the defendants concede that the plaintiff has suffered injuries and is entitled to some damages, the quantum of those damages, they submit, is modest.

The plaintiff's pre-accident history

6. The plaintiff had an unfortunate and difficult childhood and adolescence. She was born in Parkes in the central west of New South Wales. The relationship between her parents was a violent and abusive one. Her father physically and sexually abused her mother and her elder sister. The plaintiff has told psychologists of being sexually abused herself by her father, although in her oral evidence she said that she had no memory of the abuse. It is not necessary for me to make a finding as to whether her father abused her sexually: I accept that in later years she experienced what she believed to be a genuine recollection that he had done so.

7. When the plaintiff was ten, her mother separated from her father and formed a relationship with a man of Native American ethnic origin. Her mother and the man she describes as her stepfather, Michael, still live together. When she was ten, her mother moved with her children and Michael to Virginia in the United States. They lived on an Indian reservation and the plaintiff attended primary school and high school. From about the age of eleven she was sexually abused by her stepfather, who was violent and unpleasant after drinking alcohol. She left school at age fourteen and did some casual work at a restaurant. At the age of about fifteen she spent much of her time looking after Kiana, the daughter of her elder sister. In mid-1986 she became pregnant to an American boyfriend. There was no continuing relationship with him. She returned with her family to Australia and went back to Parkes where in March 1987 her baby, a son Joshua, was born. The plaintiff was then sixteen. She moved to Canberra with her mother and stepfather soon after, and briefly attended Dickson College with the intention of completing year 12 and qualifying for university admission. At that time she aspired to be a pharmacist. In the first half of 1988 she went to an adult learning centre at Liverpool near Sydney. She did not complete the course and came back to Canberra in June 1988. She worked in various pharmacies in the Canberra suburbs, and looked after her young son.

8. During 1990, the plaintiff met Sean Branagan, whom she married in December 1991. In June 1992 she gave birth to a daughter, Emily. For some time she and her husband worked together in a mobile telephone business, the plaintiff keeping the accounts. The business took her husband to Tasmania and she accompanied him there in 1993. She found work at a pharmacy in Launceston. In that year, the plaintiff's husband was diagnosed with testicular cancer and she with cervical cancer. She underwent a hysterectomy. At the end of 1993 the family returned to Canberra. During 1994 the plaintiff worked at a pharmacy in Canberra City but resigned after some time to look after her sick husband. Since the hysterectomy, the plaintiff has been on a hormone replacement therapy regime, using adhesive patches. She understands that this will continue into the indefinite future.

9. The plaintiff worked for a time at a suburban supermarket. During 1996 the marriage broke down and she and her husband separated. She moved in with her mother, and found work at a pharmacy nearby where she worked for about two years.

10. Evidence was led from the plaintiff that she joined the Commonwealth Public Service during 1998 as a level 2 clerk with the office of the Registrar of Aboriginal Corporations, a small body within the then Department of Reconciliation and Aboriginal and Torres Strait Islander Affairs. The office was located in an office building at Woden.

11. After a relatively short time the plaintiff was promoted to clerk level 3. She was personal assistant to the Registrar, taking dictation and typing letters on a computer and undertaking general clerical duties. Her evidence was that she greatly enjoyed the work and intended to remain in the job permanently, applying for promotion to positions within her capacity as they became available.

12. She gave evidence in chief of a number of medical issues from 1998 until the first motor vehicle accident. In the early part of the year she attended her general practitioner about four times for medication for headaches, probably of the migraine variety, and neck pain and stiffness. In May 1998 she fell in the shower and hurt her neck, requiring a soft collar as well as ointment and oral medication. In August 1998 she complained to her general practitioner of vomiting: no obvious cause was found.

13. In March 1999 she was admitted to Calvary Hospital under the care of Dr Terry Gavaghan, physician, with abdominal pain. The cause was not immediately diagnosed, but later in the year Dr Gavaghan referred her to Dr Philip Jeans, surgeon, who removed her gall bladder and appendix. At about the same time she underwent minor surgery at the Canberra Hospital for haemorrhoids. Following the removal of the appendix and gall bladder, the plaintiff's problems with vomiting improved but did not go away altogether.

14. The plaintiff gave evidence in response to leading questions that in November 1999 she was transferred to a different position within the Aboriginal Affairs Department. Her oral evidence about this is inconsistent with documents tendered in her case emanating from the Aboriginal and Torres Strait Islander Commission, from which it is clear that she was first employed there not in 1998 but on 15 November 1999 in a temporary position. The position (APS level 3) with the Registrar of Aboriginal Corporations was made permanent from 1 December 1999. On 30 October 2000 the plaintiff was transferred to a position at the same level with the Office of Evaluation and Audit within ATSIC, this being some six months after the first motor accident.

15. Admittedly the plaintiff was giving her evidence about these events some four years later. I am inclined to accept that her oral evidence about the dates was a genuine attempt on her part to give truthful evidence, difficult though it is to accept that she might have thought that she had been working in the Public Service for some two years before the first motor accident, when the reality was that it was less than six months. Indeed, later in her evidence she seemed unsure as to whether she had started with ATSIC so early.

16. This mistake by the plaintiff as to chronology appears to have infected some of the other evidence in her case. Her evidence was that from 1996 she worked for about two years at the Ngunnawal Pharmacy. Certainly there was no suggestion in her evidence, either in chief or in cross-examination, that there was any significant gap in her employment in the period of two or three years before the first motor accident. She gave the impression, whilst not saying so specifically, that she worked at the pharmacy until she took up the position in the Public Service. The evidence of her then domestic partner, Mr Joe Carbone, was to the same effect.

17. The evidence of two witnesses who were called in the plaintiff's case and asked questions about the difference in her physical and psychological presentation before and after the car accident of April 2000 was significantly tainted. One, Mr Michael Sterecker, had been a work colleague; the other, Mr Dirk Isselmann, was Mr Sterecker's cousin and had met the plaintiff socially through him. Mr Sterecker, by the time he gave evidence in August 2004, had been working in the Office of the Registrar of Aboriginal Corporations for nine years. He agreed that he met the plaintiff when she commenced work there, and it was led from him that this was in November 1998. He agreed that it would have been at about that time. It was clearly a year later, some months after the plaintiff's surgery, which explains Mr Sterecker's apparently poor recollection of the plaintiff's health problems in mid- to late-1999. His recollection was in any event hazy and he had to be recalled to contradict evidence he had given in chief to the effect that he had got to know the plaintiff well because they were both smokers and would chat during cigarette breaks. When recalled, he volunteered that he had been confusing the plaintiff with someone else and had subsequently recalled that she was not a smoker.

18. Senior Counsel for the plaintiff led from Mr Sterecker's cousin, Mr Isselmann, the fact that he had met the plaintiff in the middle of 1999. Mr Isselmann agreed that it would have been about then. His evidence was generally very vague.

19. It is unfortunate that much of this evidence in the plaintiff's case was led without objection, but, on scrutiny of the documentary material in evidence, turns out to have been based on a false assumption.

20. The plaintiff gave evidence in chief that it was in November 1999 that she transferred from the Office of the Registrar of Aboriginal Corporation to the Office of Evaluation and Audit within ATSIC. Her evidence was that this was significant because it represented a stable permanent job, and gave her the opportunity, of which she took advantage, to train for promotion to level 4 in the Evaluation and Audit area. She recalled in December 1999 hurting her neck when she turned her head quickly while opening a heavy door at work, though this required no treatment. Nothing further was led from her in chief as to the period between the December 1999 incident and the first motor accident in April 2000. As I have said, it is apparent from the documents that the plaintiff's transfer to the Office of Evaluation and Audit took place in October 2000, six months after the motor accident. It was not put to her in cross-examination, and I do not find, that she deliberately gave false evidence about the date of this transfer, or that she deliberately attempted to give the Court the impression that her position and prospects within ATSIC prior to the motor accident were more favourable than the reality, but her evidence about this period casts considerable doubt on the reliability of her memory, not just of dates, but of the order of events and of the impact of the first motor accident upon her.

21. The plaintiff was extensively cross-examined as to her history prior to the earlier motor vehicle accident. She was questioned in particular about an admission to Calvary Hospital on 17 January 1997. The hospital admission form records her marital status at that time as separated. It seems that she was admitted because of a severe migraine headache. She was an inpatient for five days and underwent a lumbar puncture during that period. The notes record that her headaches gradually subsided over those days. Significantly, on her last day, 21 January 1997, she was interviewed by a social worker, Scott Milne, whose detailed note was as follows:

Patient described a series of problems indicative of a chronic trauma reaction. The patient stated they had the following problems: fatigue; visual difficulties; dizziness; lack of co-ordination; headaches; lack of appetite; sleep disturbance; difficulty with attention, decisions, concentration, identifying familiar objects, naming known people; memory problems; loss of time; disturbed thinking; nightmares and dreams of problems throughout life at school and recently; intrusive images of traumatic events over her life when occupied with mundane tasks; slowed thinking, "magical thinking"; anger; guilt; fear; uncertainty; loss of emotional control; intense anger; irritability; agitation; frustration; wanting to hide; emotional outbursts; suspiciousness; loss of ability to rest; non-specific bodily complaints; and pacing. The patient was hyperalert with enlarged pupils and eyes wide, her behaviour indicated lowered boundaries and an anxious and tense underlying state. The patient stated that she had wondered if her condition was the product of stress. The patient described a number of issues currently in terms of her marriage and stated she is seeing a private psychologist but has only discussed her marriage problems with them. Her husband had cancer and chemotherapy and underwent an orchidectomy in 1996. The patient has two children, a boy 7 years born prior to the marriage and a daughter 4 years. Their care during the separation is a concern. The reactions of the patient indicated that there was an underlying stress or trauma history which indicated further investigation. The patient has no memory prior to age 8 years. Upon discussion the patient stated that her biological father was very physically violent towards her mother, any abuse directed toward her is unknown by him, however the impact of seeing violence toward her mother would have had a traumatic impact. Patient stated that her mother left her father at age 8 years and took her to the USA where she entered a relationship with a violent alcoholic. The patient stated her mother is still with him. Her step-father was reported to be physically, emotionally and sexually abusive toward her. Patient states that he would beat her and her mother, he would emotionally abuse her with constant taunts, lock her outside and in cupboards for up to hours at a time and threw her through an open window into the snow with only a thin nightie on. The patient stated that she would often be bruised. The patient also described him exposing his genitals to her, intruding on her in her bedroom and in the bathroom and would make sexual innuendo constantly. Recently he said to her, did she remember wanting to make love to her at 14 years of age. The patient does not remember sexual contact beyond brushing against her and fondling/groping. The patient did not connect his behaviour with sexual abuse or assault. This goes some way to explain her inappropriate boundaries and behaviour. I provided a sheet of "normal reactions to trauma" to patient and attempted to normalise her reactions in context of her experience. I suggested to patient that she increase her social supports, interest and activity and decrease contact with those who do not support her. I suggested that she obtain in depth counselling in relation to the impact of her childhood issues in addition to her relationship. The patient appeared to be receptive.

22. Counsel for the defendants put each of the symptoms recorded by the social worker to the plaintiff, who said that she had suffered from the symptoms described since the 2000 motor accident, but denied that she had suffered from any of those symptoms earlier. She was unable to recall her five-day admission to Calvary Hospital in January 1997, and initially unable to recall having a lumbar puncture, though after a short lapse of time she recalled that procedure. She conceded that she had suffered from neck stiffness at about that time. She eventually agreed that the history she had given to the social worker had been generally correct, and that she had suffered in 1997 from the various symptoms listed in the note.

23. She was asked about an attendance at the surgery of her general practitioner, Dr Foo, where she saw a Dr Ling in March 2000, about six weeks before the first motor accident. According to Dr Ling's notes, the plaintiff complained of being moody, with a lot of abdominal pain, nausea after eating, and constipation. The plaintiff said that she did not recall the visit, or giving such a history to a doctor at about that time. I accept that the notes accurately record the history taken by the doctor on 13 March 2000. To put the matter into perspective, I should explain that according to the notes, after September 1999, the month in which the plaintiff had her gall bladder and appendix removed, she attended the general practitioner's rooms on only four occasions prior to the first motor accident: twice in October 1999, once in December 1999 and once in March 2000. The notes record that on 11 October 1999 she was given a certificate for time off work until 31 October: the later entries prior to the motor accident do not refer to any certificate or need for time off.

24. The records of Dr Terry Gavaghan, a consultant physician with a particular interest in gastroenterology, cast additional light on the plaintiff's history prior to the motor accidents. I prefer these written contemporaneous records to the plaintiff's oral evidence where they diverge. On 4 March 1999, Dr Gavaghan reported to the plaintiff's then general practitioner, Dr Sood at Ngunnawal, that the plaintiff had been admitted to Calvary Hospital under the care of Dr Noel Tait, a general surgeon, with symptoms of severe right subcostal pain. He referred to her prior history of cancer of the cervix, and her subsequent hysterectomy and removal of the ovaries. The plaintiff gave a history of about twenty kilos weight loss in the previous four months, with vomiting after meals and epigastric pain. Dr Gavaghan arranged various tests to exclude conditions which might have explained her symptoms, none of which were positive, and he arranged for her discharge on 4 March 1999, by which time her symptoms had completely resolved.

25. The resolution of symptoms proved short-lived. The plaintiff saw Dr Gavaghan again in July 1999. Dr Gavaghan referred the plaintiff to Dr Phillip Jeans, gastrointestinal surgeon, who saw her in August 1999 and proceeded to remove her gall bladder and appendix the following month. Dr Jeans reviewed the plaintiff on 30 September and noted that she had put on 2.5 kilograms and was not vomiting as much. She complained of extreme tenderness around the surgical wounds. Dr Jeans took the view that she had a low pain threshold. He also thought that she might have some degree of irritable bowel syndrome.

26. Dr Gavaghan saw the plaintiff again in May 2000, soon after the first motor accident, when she was admitted to Calvary Hospital under his care. He described her, in a letter to her general practitioner, as a difficult young lady with a habit of putting people offside. Dr Gavaghan said that the reason for the admission to hospital was that the plaintiff had had a motor vehicle accident, suffering a whiplash injury to the neck. She had developed depression and anxiety and had lost an enormous amount of weight. Dr Gavaghan thought that her main problems were chronic cervical pain and nausea, with a major psychogenic component to the latter. He did not believe that there was an organic cause for the nausea, and referred her to a psychiatrist, Dr John Saboisky. In his referral letter, he expressed the view that the plaintiff had "become very significantly depressed over the last few months with all of this history." He thought that the plaintiff needed psychiatric help, including anti-depressant therapy.

27. I have set out all of this material at some length because of the way in which the plaintiff put her case forward. Her evidence was that her physical and psychological problems prior to the first motor accident were comparatively minor, and that her real problems only began following that accident. It may well be that by the time the plaintiff gave evidence, she had subconsciously persuaded herself that this was the case. It is hence important that the correct history be set out in some detail, to permit a proper assessment of the impact of the motor accidents, in particular the first accident, upon the plaintiff.

28. The first motor accident happened on 26 April 2000. By that time the plaintiff was living in a de facto relationship with one Joe Carbone, in a garage which had been converted into a flat behind his parents' home at Page. The plaintiff's evidence was that she moved in with Mr Carbone in late 1998 with her children.

29. Mr Carbone is a telecommunications technician of some twenty years' experience. He worked for the same company as the plaintiff's husband in about 1991 and got to know the couple. This led to a business arrangement where he installed and maintained telephone systems for the plaintiff and her husband as managers of an outlet for another telecommunications company at Fyshwick, seeing them up to five times a week. They became friendly at a personal level. Mr Carbone found the plaintiff very attractive. The friendship and the business relationship continued for some years, after which there was a period of time when they did not see each other, probably coinciding with the plaintiff's husband's cancer and treatment. Mr Carbone ran into the plaintiff at a shop in 1997 or 1998. He became aware that her marriage had broken down, and he started to see her again. The relationship developed and after a short time she moved into Mr Carbone's flat at Page. She was working at that time at Ngunnawal Pharmacy.

30. Mr Carbone recalled her move to ATSIC, a job she very much enjoyed. He gave vague evidence about her vomiting during 1999 and her surgery for the removal of her gall bladder and appendix. He was asked whether she was having any problems carrying out her duties at ATSIC before the operation and replied in the negative. As I have said earlier, I am satisfied that the plaintiff did not start work at ATSIC until after that surgery, and although this evidence was led from him, it reinforced doubts I had from his demeanour and some of his other evidence as to his reliability generally.

The car accidents and the medical evidence

31. On the day of the accident, 26 April 2000, the plaintiff was driving home from work. She was stationary in the westbound lane of Hindmarsh Drive, Weston, in the vicinity of the Tuggeranong Parkway, when her car was struck forcefully from behind. The car was damaged beyond repair, its insured value having been $5,500. The plaintiff had a front seat passenger, a work colleague, Selena Ashman. She was able to telephone Mr Carbone, who came to the accident scene and drove the damaged car away. Ms Ashman took the plaintiff home in Mr Carbone's car. Later that evening, Mr Carbone drove the plaintiff to Calvary Hospital. She was complaining of a severe headache, pain in the neck and back, and weakness and tingling in the arms and hands. X-rays of the neck and chest were reported as normal, and the plaintiff was sent home with a soft collar. She was given Panadeine, a non-prescription painkiller.

32. The next day she went to the surgery of her general practitioner, Dr Jacob Foo, where she saw a locum, Dr Johanna Skinner. Dr Skinner noted that the plaintiff's neck was very stiff, its range of movement severely limited in all directions. She returned to see Dr Skinner the next day complaining of severe pain in the neck and of headaches. Dr Skinner gave her a prescription for Panadeine Forte and Voltaren Rapid, and referred her to a chiropractor, Shane Collins.

33. Dr Foo himself first saw the plaintiff after the accident on 1 May 2000. She was in quite severe pain and distress. She complained of neck pain, headaches, nausea and vomiting. She said that the chiropractor had been unable to treat her adequately because of the pain and tenderness in her neck and shoulders. Dr Foo prescribed Valium as a muscle relaxant.

34. She came back the next day, concerned about the persisting severity of her symptoms. Dr Foo ordered an MRI scan of the neck. This disclosed a tear of the C6-7 disc annulus associated with a minor disc bulge and was suggestive of another smaller annular tear at C5-6. Dr Foo thought that she had in addition suffered significant musculo-ligamentous soft tissue injuries in and around the neck.

35. Dr Foo reviewed the plaintiff on 11 May 2000 when she complained for the first time of pain in the lower back. Dr Foo accepted that this had been relatively insignificant to her earlier because of the overwhelming neck symptoms. He found the lumbar spine stiff, with movement reduced in all directions, and noted muscle spasms and tenderness in the surrounding muscles.

36. Dr Foo noted that the plaintiff was keen to return to her job at ATSIC. She went back to work on 15 June 2000, working two hours a day three days a week. Her symptoms were aggravated during the first week and the return-to-work programme was postponed.

37. Dr Foo referred the plaintiff to Dr Geoffrey Speldewinde, a consultant in rehabilitation medicine and pain management. Dr Speldewinde saw her on 10 July 2000. He took a history of her problems since the motor accident, and also of her previous symptoms of abdominal pain and vomiting and some twenty kilograms weight loss over the previous "couple of years". He noted that she had seen Dr Saboisky recently about those problems. He prescribed Tryptanol, an anti-depressant, and referred the plaintiff for physiotherapy and hydrotherapy. He expressed the view that the plaintiff was not fit for work in any capacity at the time he saw her.

38. Dr Foo at about the same time referred the plaintiff to Canberra Injury Management Centre, where she came under the care of Mr Ian Goch, psychologist. Mr Goch did not give oral evidence. He reported at length in August 2001 to the plaintiff's solicitors. He developed an excellent rapport with the plaintiff and accepted her as genuine, although it is submitted on behalf of the defendants that in this regard he was a victim of a deliberate attempt by the plaintiff to deceive him. He found the plaintiff open and straightforward. She was often tearful during treatment. She gave a credible and internally consistent history. She was at least average in intelligence. He recorded her unstable and abusive childhood. He noted her continuing strong relationship with her mother, who had provided significant emotional and financial support since the injury. The plaintiff talked to him about her relationship with Mr Carbone, which she described as a negative one due to the controlling influence of his family. During the course of the treatment, she and Mr Carbone separated. It appears that she did not give Mr Goch any history of her gall bladder and appendix surgery in 1999, or of the symptoms which led up to it. Mr Goch described her history prior to the accident as one marked by poor relationships, traumatic events and depressive environments and incidents. He accepted from the history he took that the plaintiff was functioning adequately at an occupational and family level in the period leading up to the first accident, experiencing some psychological symptoms but not at a level which would be considered significant.

39. Mr Goch assessed the plaintiff as meeting the criteria for a diagnosis of recurrent major depressive disorder and also of pain disorder associated with psychological factors, and a general chronic medical condition. She also met the criteria for a diagnosis of chronic but mild post-traumatic stress disorder. He regarded her pre-accident traumatic experiences as exposing her to these conditions. She responded well to treatment. She missed a significant number of sessions but was diligent and motivated in dealing with issues during treatment sessions and also in applying strategies between sessions. He thought it not unusual that a person in the plaintiff's condition would miss sessions, having regard to their confronting and emotionally provocative nature. By the end of the course of treatment the plaintiff was reporting some amelioration of her symptoms and some improvement in the management of her pain, mood and anxiety. Notwithstanding this Mr Goch thought her prognosis guarded and judged that she was likely to require protracted treatment. He noted that by the time of his report, she had commenced treatment with another psychologist, Dr Janine Mahoney.

40. In August 2000, the plaintiff travelled by air to South Australia. While there, she sought medical treatment. She attended the surgery of a Dr Borg at Salisbury Downs on Sunday, 13 August 2000, complaining of neck pain which had been present since her car accident in April. She had limitation of movement and apparent pain in the neck. Dr Borg referred her to the casualty department at St Andrews Hospital in Adelaide.

41. On 28 August 2000 the plaintiff presented at the mental health services clinic at Calvary Hospital. She was admitted and spent three weeks as an inpatient under the care of Dr L. Fridgant and Dr R. Morice. Neither Dr Fridgant nor Dr Morice was called to give evidence and no report by either psychiatrist was tendered. The hospital notes are in evidence, and include a detailed note by Dr N Cook, described as a clinician. Dr Cook noted that Mr Goch had encouraged the plaintiff to ring the mental health clinic if she could not contact him in an emergency.

42. The plaintiff gave Dr Cook a history of a neck injury in the motor accident and also of an eating disorder. She said that she had been living with her fiancé in a house owned by his parents and that his mother had asked her to leave. She had moved with her children to live with a friend temporarily. She was having difficulty renting a place because she had gone bankrupt when her husband had cancer a few years earlier. She complained about a lawyer "talking about her in her presence as if she was nothing". She told Dr Cook that things had been going very well for her until the car accident "but now were falling apart". There was mention of suicidal ideation; depression; flashbacks to sexual abuse; disturbance of sleep and appetite; weight loss of 42 kilograms (approximately fifty percent of body weight) over twelve months; fits of rage; ideas of self-mutilation; hopelessness and negativity about herself; and poor ability to assert herself, especially the ability to say no to demands from males. Dr Cook regarded the history he took as generally credible and consistent. The plaintiff went into a little more detail about her childhood, saying that her natural father had been extremely violent to her mother, for example burning her with cigarettes, and had sexually abused the mother, and also the plaintiff and her sister. She then told Dr Cook about the move to the United States, where her mother married an American Indian and the family lived on an Indian reservation. Her stepfather was an alcoholic who over a period of five years abused the plaintiff sexually when intoxicated. The family returned from the United States when she was fifteen. They lived in a caravan until the birth of her baby at age sixteen, after which she was able to obtain government support to live independently. She met and married her husband when she was twenty and had her second child. Her husband severed the relationship when the plaintiff was twenty-five. She was single for two years until she met Mr Carbone. His parents had evicted her two weeks prior to her presentation at the mental health clinic. She ascribed the eviction to her increasingly labile mood and fits of rage. She spoke of ideas to self-mutilate and to commit suicide, for example by driving her car into a wall. She admitted to periods of depression over a number of years but said that she had not previously sought treatment.

43. During her time in hospital, the diagnosis of post-traumatic stress disorder was confirmed and she was discharged on anti-depressant medication as well as analgesics for her physical symptoms.

44. Dr Speldewinde referred the plaintiff to Dr K. N. Chandran, neurosurgeon, in October 2000. Dr Chandran conducted a physical examination and viewed the MRI scan report. He said that the annular tears in the cervical spine would not explain her extensive symptoms. He thought that she probably had an underlying soft tissue injury with an overlying emotional response. There was no surgery he could offer and she should persevere with pain management strategies including psychiatric consultations.

45. In November 2000, Dr Foo referred the plaintiff to Mr Adrian Rumore, a manipulative physiotherapist. She attended him a number of times until early April 2001.

46. On 4 January 2001 the plaintiff was injured in the second motor accident. It was her first attempt at driving a car after the previous accident. She was driving into the city and stopped behind a bus in Northbourne Avenue. A car behind tapped into the back of her car. She said that she just had a bit of extra tightness in her neck and a headache after this incident. She could not recall seeing a doctor on the day, and it appears that she did not see her general practitioner, Dr Foo, until 25 January when she mentioned the accident to him. Dr Foo did not mention this accident in a report to the plaintiff's solicitors of 16 February 2001, though he did say that the plaintiff had by then commenced a graduated return-to-work programme. Mr Rumore reported to the solicitors in November 2001 but did not mention the second accident. The plaintiff did not make a great deal of the second accident in her oral evidence and it does not seem to have been of much significance to her at the time.

47. She started the graduated return-to-work programme at the beginning of February 2001, working four hours a day on Mondays, Wednesdays and Fridays. During this period she was continuing, at least until April, with physiotherapy, and also with cognitive behaviour therapy through Mr Goch.

48. I accept Dr Foo's records as reliable. He reports that the plaintiff's low back complaints became worse while attempting her return-to-work programme. He notes complaints in October 2001 of significantly increased pain in the low back and right buttock, radiating down the right leg, which had started three days previously and had been aggravated by some heavier-than-usual work at the office. Thereafter, she complained of constant low back pain, punctuated by episodes of increased severity which took her a number of times to the emergency department at Calvary Hospital. An MRI scan in December 2001 showed disc protrusion at L5-S1, probably compromising the right S1 nerve root.

49. The plaintiff's evidence was that after she left the Carbone residence at Page, she lived for about a month with friends, Janet and Paul Whittingham, at Ngunnawal. Neither the plaintiff nor Mr and Mrs Whittingham were clear in their recollection as to exactly when this was, but I take it to have been in September-October 2000. The plaintiff's recollection was that immediately after she left Mr Carbone she moved in with his next door neighbours for a very short period, and then lived with her mother for a time. I am not sure that the recollection of any of the witnesses about the precise order of events or dates is reliable. The evidence is unclear as to where the plaintiff lived after she left Mr and Mrs Whittingham's home, but in about February 2001 she renewed her acquaintance with Mr Colin Steele, who had been her boyfriend at Dickson College, and in April 2001 or about then, she moved in with him.

50. At about the same time, she commenced treatment with a male massage therapist. Whilst the referral process to the massage therapist is a little unclear, there is no issue that the massage was part of her regime of treatment following the car accidents. On 15 May 2001, the massage therapist touched her in the genital area. He apologised almost immediately, but the plaintiff was traumatised by this event, and it seems to have triggered her referral to Dr Janine Mahoney, a psychologist.

51. At this stage all of the plaintiff's treatment was being paid for by Comcare. The plaintiff was not in a financial position to pay for it herself. Regrettably, a decision was taken by Comcare to meet the cost of Dr Mahoney's treatment of the plaintiff in relation to the psychological after-effects of the first motor accident, but not the effects of her childhood sexual abuse or the assault by the massage therapist. Separate arrangements were made for the plaintiff to receive counselling from Dr Mahoney in relation to the sexual abuse and assault, and this was paid for through a fund dedicated to treatment for victims of crime (the plaintiff made a complaint about the assault to the Health Complaints Commissioner but not to the police, and the incident has not led to any criminal charges). This unfortunate arrangement meant that Dr Mahoney had to go through the artificial process of devoting those sessions funded by Comcare solely to the effects of the accident, and those funded by the crime victim body solely to the effects of the abuse and assault. It astonishes me that anyone can have thought that such an exercise was practical or indeed possible.

52. Dr Mahoney prepared lengthy and detailed reports, and gave oral evidence. She was clearly sympathetic to the plaintiff and accepted the history she was given without any degree of scepticism.

53. When the plaintiff was first referred to her, she was told that the plaintiff's overall psychological state had been exacerbated by the incident with the massage therapist, and that the plaintiff was distraught. In spite of treatment by Mr Goch, she was told that the plaintiff's pain condition had not improved significantly.

54. Dr Mahoney conducted psychometric testing as well as a clinical interview. She concluded that the plaintiff was suffering from acute psychological distress with a desperate need for assistance; suicidal thinking; depression; traumatic stress; anxiety; and a pain condition. She spoke to Dr Foo and to Mr Steele, and the plaintiff took time off the return-to-work programme.

55. In a lengthy report to the plaintiff's solicitors in February 2002, Dr Mahoney noted that the plaintiff limped and applied a heat pack to her back during consultations, sometimes wincing and frowning in apparent pain, and on some occasions lying on the floor as an apparent response to back pain. She sometimes became vague and lost concentration. She expressed a range of emotions during the sessions including distress, tearfulness, regret, shame, anger, disillusionment, hopelessness, helplessness and frustration. Dr Mahoney thought that the plaintiff was of average intelligence but was submissive and lacking in self-confidence. She found no indication of defensiveness or deliberate evasiveness and assessed the plaintiff as sincere and open in her responses. She took a detailed history of the plaintiff's childhood and adolescence, including appalling incidents such as her observing her natural father raping her mother on the kitchen table on three separate occasions, and being raped herself by her stepfather, as well as tied up, punched and verbally abused by him. By reference to the DSM-IV criteria, Dr Mahoney diagnosed the plaintiff as suffering from post-traumatic stress disorder, pain disorder and depressive symptoms, all of which she related causally to the motor accident of April 2000. She regarded the prognosis as uncertain but noted that most sufferers from post-traumatic stress disorder recovered within two to three years. A minority persisted with symptoms for a number of years and some moved to a chronic state. She noted the plaintiff as submissive, wanting to please her treating practitioners, and fearful of disappointing them.

56. In later reports during 2003, her diagnosis altered to one of pain disorder associated with psychological factors and a general medical condition, requiring weekly treatment for at least the next three or four months, with her progress to be evaluated again at that time. In a letter of 3 September 2003 to Dr Foo, Dr Mahoney reported that the plaintiff had recently begun to catastrophise her experiences due to being overwhelmed by pain, personal events in her life and a lack of trust in the return-to-work process. She was exhibiting some symptoms of paranoia towards those involved in her work programme, for example believing that her rehabilitation provider had opened her briefcase and gone through private documents, and that someone had stolen documentation regarding her claim from her home. Dr Mahoney noted that an adversarial relationship had developed between the plaintiff and Comcare, and also between the plaintiff and ATSIC. At that time Dr Mahoney believed that the plaintiff was at high risk of suicide.

57. Dr Mahoney reported to the plaintiff's solicitors at great length in April 2004, just before the commencement of the hearing. Her opinion at that time, after further testing, was that the plaintiff continued to meet the diagnosis for chronic pain disorder associated with psychological factors and a general medical condition, and for chronic adjustment disorder with mixed anxious and depressed mood, but no longer met the criteria for post-traumatic stress disorder or major depression. She required continuing psychological treatment for these conditions for at least another two years, initially once a week and later less frequently. In Dr Mahoney's opinion, she would have benefited at that time from a pain management programme, available in Sydney at a cost of about $5,000 in addition to the cost of accommodation and transport. Her psychological prognosis remained guarded, taking account of the fact that her symptoms had been present for more than three years. The chance of further exacerbation was high. Her psychological recovery was complicated by her continuing physical pain. She would remain more vulnerable to stress and trauma in the future. She was at that time unable to work but should progress to part-time work in the future, up to a maximum of twenty hours per week, as her physical condition stabilised, and this would be of psychological benefit to her. Dr Mahoney was convinced that her psychological condition had been substantially caused by the motor vehicle accident of April 2000.

58. Dr Mahoney gave oral evidence in August 2004. She said that the plaintiff would require psychological treatment for at least another year. She thought that the plaintiff had improved over the course of her treatment, by that time more than one hundred sessions of something over an hour each. She thought that the litigation was a significant factor in the plaintiff's stress, and that a year of treatment would be necessary from the time when the litigation was over.

59. Dr Mahoney agreed in cross-examination that she had not been provided with a history of psychological symptoms prior to the motor accident, or of continuing physical complaints after the gall bladder and appendix surgery. Whilst she agreed with the proposition that she was in the witness box as an expert to help the Court, she appeared reluctant to express an opinion based on assumptions which were contrary to her reports and evidence in chief. She pointed out that the plaintiff had been able to cope with the duties of her employment prior to the first car accident, and argued that any psychological or physical complaints the plaintiff had before the accident could not have been particularly serious. She had clearly developed a good rapport with the plaintiff and did not seem to be prepared to accept that her opinion about the plaintiff might have been to any extent in error. Whilst I accept Dr Mahoney's evidence unreservedly as to the course of treatment and other factual matters, I have some difficulty in accepting her as an objective witness in relation to the psychological issues and in particular in relation to causation.

60. She agreed that the plaintiff's painkilling medication was potentially addictive, and that people who are addicted to medication can be deceitful in order to obtain medication when they want it, for example feigning pain. Asked whether in her view the plaintiff had become addicted to her medication, she replied "I don't know to what extent she's become addicted." Asked whether the plaintiff might have become addicted to any extent, her response was "I really don't know, I don't think so." She subsequently conceded that she was not qualified to talk about medication, but said she had discussed the question with the plaintiff who appeared aware of the risk of addiction.

61. During 2001, the plaintiff was seen by three independent specialists at the request of Comcare. In late February 2001, on the same day, she saw Dr Jeremy Hopkins, orthopaedic surgeon, and Dr Walter Mickelburgh, psychiatrist. Dr Hopkins formed the view that the plaintiff had suffered a soft-tissue injury to the cervical spine and a minor strain to the lumbar spine in the first accident, just under a year earlier. He noted complaints of pain and other symptoms of a fairly major degree, which he thought were compounded by a marked degree of anxiety. On examination he found some limitation of movement in the neck, accompanied by diffuse pain, and occasional pain in the low back. He found no evidence of any nerve root compression or thecal irritation. He thought that the annular tears which were detected by the MRI scan were probably caused by the motor accident. His view was that the physical injuries were relatively minor, but that their effect was compounded by a significant degree of functional overlay. He thought that she had developed a chronic pain syndrome which would probably not resolve for another twelve months. Her capacity for work was in his view restricted to some extent, though she was capable of working limited hours.

62. The plaintiff gave Dr Mickelburgh a history which did not include any mention of psychological problems prior to the first motor accident. He thought that her physical injuries in the first accident had led to chronic pain which, combined with other events in her life such as the breakup of her relationship with Mr Carbone, had precipitated a major depression. Her psychological symptoms were disabling but appeared to be improving slowly. He found no evidence of conscious exaggeration or malingering, and he thought that her prognosis depended on the resolution of her neck pain. If she made a complete physical recovery, her psychological symptoms should eventually cease also. Meanwhile, she required psychiatric and psychological treatment including cognitive behaviour therapy and medication.

63. The plaintiff does not seem to have mentioned the second accident to either Dr Mickelburgh or Dr Hopkins, although it had occurred only a few weeks before they saw her. This reinforces my view that the second accident was very minor.

64. In November 2001 the plaintiff was sent by Comcare to Dr Peter Snowdon, another psychiatrist. Dr Snowdon additionally has qualifications in pain management and addiction medicine. She was by this time living with Mr Steele, who attended the consultation with her. She did not give Dr Snowdon any history of psychological symptoms or treatment prior to the first motor accident. Dr Snowdon regarded the childhood history of sexual abuse as significant, but thought that the plaintiff would probably not have developed the substantial component of her psychological symptoms had it not been for the accident of April 2000. Her psychological issues had been worsened by the incident of May 2001 involving the massage therapist. He thought that having regard to her childhood history the plaintiff would have been particularly susceptible to a significant psychological response to the assault by the massage therapist. He accepted that the plaintiff was suffering from post-traumatic stress disorder and in addition adjustment disorder with depressed mood. She probably also had a pain disorder, and her depressive condition was probably sufficiently severe to warrant diagnosis as a major depression. She should be taking anti-depressant medication as well as medication to assist her in sleeping at night. It was appropriate that she continue with the treatment being provided by Dr Mahoney.

65. In June 2002 the plaintiff was referred by her solicitors to Dr Owen White, neurologist. He attributed her low back pain to the annular injuries apparent on the MRI scans. He also thought that she had suffered annular injury in the cervical spine in the motor accident. He thought that surgery was highly likely to improve her physical condition, though she might be left with some residual low back pain. She was not fit to work, and was unable to live a normal life. He was hopeful that she might one day be able to return to clerical and administrative work, but that the time frame for this was uncertain.

66. At about the same time Dr Foo referred the plaintiff to Dr Malcolm Pell, a Sydney neurosurgeon, presumably as a response to Dr White's suggestion of surgery. Dr Pell formed the view that the plaintiff's major pain was coming from the lumbo-sacral facet joints, and recommended cortisone injections into the joints on both sides. These injections were administered by a radiologist, Dr Thomson, under x-ray control. The plaintiff reported some reduction in pain on the left side but none on the right. Following the injections, the plaintiff had to be taken to Calvary Hospital with severe pain and vomiting. She was given morphine injections.

67. Later in July 2002 the plaintiff saw Dr K N Chandran for a second neurosurgical opinion. He arranged for her to be admitted to hospital early in August for disc excision. Dr Chandran sought agreement from Comcare to pay for the hospital and surgical expenses, but approval was not forthcoming and the surgery did not take place.

68. Dr Pell saw the plaintiff again in mid-August 2002. She attended his surgery in Sydney in a wheelchair. She reported taking a range of medication including morphine. Dr Pell's opinion was that the plaintiff had suffered a lumbo-sacral disc prolapse and a small cervical disc prolapse, and that a chronic pain syndrome had also developed. He was not sure whether surgery was warranted or likely to be successful. She required continuing medication, physiotherapy and hydrotherapy and her prognosis remained guarded, particularly as to the chronic pain syndrome.

69. The plaintiff was seen on three occasions, on behalf of the defendants, by an occupational physician, Dr Leon Le Leu. He first saw the plaintiff in September 2001. She attended with Mr Steele. Dr Le Leu accepted that the plaintiff had suffered cervical disc tears and probable lumbar disc injury. He had the impression that there was a significant element of pain behaviour. The psychological issues were outside his field and he left these for psychiatric assessment. He thought that it might be helpful to restart her on a tricyclic anti-depressant and perhaps also a membrane stabiliser. He thought that hydrotherapy would be helpful. At the time of the appointment she was working on light duties which he thought was reasonable. She should in his view have been able to return to full-time work over the next six months. He expected improvement over time but some permanent impairment.

70. On the day after she saw Dr Le Leu, the plaintiff attended an appointment with Dr Michael Duke, a psychiatrist engaged by the defendants' solicitors. Mr Steele attended with her. Dr Duke became aware after some time that Mr Steele was tape-recording what was said. Dr Duke diagnosed the plaintiff as suffering from post-traumatic stress disorder, major depression and pain disorder. Her level of impairment was gradually diminishing. He mentioned her childhood physical and sexual abuse, and her former husband's testicular cancer (though not her own cancer). All of these made her more vulnerable to the psychological symptoms she had suffered as a result of the motor accident, which precipitated the three conditions he diagnosed and, he said, "contributed to fifty percent of the variance in terms of aetiology". Dr Duke did not give oral evidence and thus had no opportunity to explain what he meant by the quoted expression. He thought that she should continue with treatment and medication, and that her psychological symptoms would be likely to continue for a further one to two years. She should continue to increase her working hours as she felt able to. It was unlikely that her symptoms would disappear completely but they should reach a level where they could be described as background rather than foreground problems.

71. Dr Duke saw the plaintiff again in November 2002. She told him that in October 2001 she had hurt her back cleaning a storeroom at work and had been unable to continue her part-time employment. She tried again at the end of January 2002, working four hours a day three days a week, but her pain became worse and she ceased work on 10 April 2002. She complained of constant severe pain in the low back, radiating down the right leg into the toes; and of headaches, irritability and poor sleep. She was on a small dose of an anti-depressant but was taking no analgesics. She was unable to drive a car. Dr Duke noted that the plaintiff was continuing with her treatment under Dr Mahoney's care, which he regarded as appropriate, as was her anti-depressant medication. He noted that she was also having counselling through a pain management clinic. He took the view that she was coping as well as could be expected from a psychological point of view, and that her prognosis would depend on the progress of her physical symptoms.

72. Dr Le Leu saw the plaintiff again in December 2002. He noted improvements in neck movements. A recent MRI scan of the lumbar spine was available, and showed posterior protrusion of the L5-S1 disc with likely compromise of the right sacro-iliac nerve root. Her range of lower back movement had decreased since he previously saw her, and her pain behaviour was very marked. He thought that her psychological condition had regressed, with indications of increased depression and anxiety. Dr Le Leu regarded it as unfortunate that she had not persevered with her return-to-work programme, and thought that she could have coped with it. He thought that the condition of her low back was not as serious as it appeared, and that it was being significantly impinged upon by her depression and heightened sensitivity. He thought that over the next six months she would recover completely from her neck injury, and that eventually her low back symptoms should recover. Hydrotherapy would be beneficial in this process. The prognosis for her depression was uncertain and he would defer to Dr Mahoney as to that. In the long term, she should be able to return to the workforce in a clerical role with low physical demands.

73. In the same month, the plaintiff was referred by Dr Foo to Dr Milton Cohen, a Sydney physician and rheumatologist with a particular interest in pain management. Dr Cohen recommended a change in the plaintiff's medication. A few days before he saw the plaintiff for the second time, she had fallen from exercise equipment and had a suspected fracture of the scaphoid in her left wrist (a fracture was not confirmed on subsequent x-ray). She told Dr Cohen that she had gained relief from doses of oxycodone though these had caused some nausea and headache. He suggested that she move to a regime of OxyContin and Nortriptyline, the first for pain control and the second for help with mood and sleep. He recommended that she continue with psychological counselling. He thought it unlikely that surgery would assist. He noted that her psychological difficulties were compounded by problems with financial and domestic support and the apparent lack of a plan for occupational rehabilitation. He said that until some of those issues were resolved, her prognosis would be guarded.

74. In August 2003 the plaintiff was seen by another psychiatrist, Dr Inglis Howe Synnott. Dr Synnot is in active psychiatric practice at Armidale in New South Wales as well as consulting for a company which coordinates medical expert witnesses to prepare reports and give evidence. The plaintiff gave Dr Synnott a history which did not include any mention of physical or psychological health problems prior to the first car accident. She said that it was her pain and her other physical difficulties which prevented her from returning to work, and that there was no psychiatric reason why she could not work. She told him that she was spending fifty dollars a week on cannabis in addition to her prescribed medication. She was seeing Dr Mahoney weekly. She felt that she had gained no assistance from any of the psychiatrists she had seen. Dr Synnott assessed the plaintiff as genuine, with no appearance of exaggeration or over-emphasis on her symptoms. He diagnosed her as suffering from an adjustment disorder with mixed anxiety and depressed mood. The symptoms did not justify a diagnosis of post-traumatic stress disorder or of major depressive disorder. The adjustment disorder was not of itself sufficient to prevent the plaintiff from resuming her normal employment. Accepting the history he had been given, Dr Synnott ascribed the psychological symptoms causally to the motor accident. He thought that her psychological prognosis was connected to her physical prognosis. It was reasonable that she continue with psychological counselling but he saw no long-term indication for psychiatric or psychological treatment. He saw her long-term prognosis as reasonably good.

75. Dr Le Leu saw the plaintiff for a third time in August 2003. He noted that she had had a number of attendances at the emergency department of a hospital for exacerbations of pain which she related to cold weather. She reported that a month earlier Dr Gavaghan had carried out a gastroscopy and found inflammation of the stomach. He had prescribed medication which relieved her stomach pains but made her very sleepy. Dr Le Leu noted that the plaintiff had lost about five kilograms since he had last seen her. Her neck movement had improved but her low back range of movement was unchanged and she continued to display very marked pain behaviour, including depression and anxiety. Unlike Dr Synnott, Dr Le Leu came to the view that it was the plaintiff's psychological condition which was the main stumbling block to a return to work. He suggested that she continue with neck exercises, which appeared to be having a favourable outcome. Indeed, he said, the neck was the only area about which he currently felt some optimism. He thought she could resume hydrotherapy with some benefit, and that she would need ongoing psychological counselling and psychiatric medication, though he would defer to the experts in those areas.

76. The defendants' solicitors sent the plaintiff in November 2003 to Dr Paul Spira, a Sydney neurologist. The plaintiff was accompanied by Mr Steele to the appointment. Dr Spira found her dramatic in her description of her symptoms. She provided her history by reference to her laptop computer on which she had entered dates and details of treatment and medication in remarkable detail. He found her physical presentation on examination to be dramatic, with a grossly exaggerated limp and an unusual gait. Her arms and legs were normal in muscle tone and bulk, which he saw as inconsistent with her reaction to power testing. She claimed that most movements accentuated her back pain, including movements at joints which could have no mechanical effect on her low back. He conducted a routine straight leg raising test which he said was performed with a great deal of drama and complaints of extreme back pain at 30° on the left and about 20° on the right. The plaintiff was, however, able to sit upright to demonstrate the site of her back pain and Dr Spira had no difficulty in extending her knee when the plaintiff was describing the radiating pain in the leg, producing a straight leg raise equivalent of over 90° with no apparent discomfort. Neck mobility was restricted in flexion and extension.

77. Dr Spira arrived at the opinion that the plaintiff had suffered no more than soft tissue damage in the wrenching injury of the neck and back of April 2000, from which, in his view, she should have made a complete recovery within weeks. He thought that her failure to recover was related to a grossly overvalued sense of injury and some exaggeration of symptomatology. She had adopted a sick role and a marked dependency on her partner, Mr Steele. At one stage she made Mr Steele leave the consulting room to obtain a hot water bottle for her, but Dr Spira noticed that she only used the hot water bottle momentarily after which she ignored it. Dr Spira inferred from the false straight leg raising test that the plaintiff must have been feigning the severe back pain of which she complained.

78. He thought that she had a tension syndrome which should respond readily to muscle relaxant medication. She had symptoms suggestive of restless leg syndrome, which should respond to appropriate treatment. He thought that her headaches were migraine headaches which predated the car accidents and had probably originally been menstrually related. Overall Dr Spira came to the view that the plaintiff was greatly exaggerating her disability and had adopted a sick role for whatever gain she could obtain from doing so. At the very least she was greatly overvaluing the significance of her injury, and Dr Spira believed that her capacities were a great deal better than she demonstrated to him.

79. Dr Spira gave oral evidence. In relation to the straight leg raising test, he explained that where nerve root compression is present in the lower back, as the leg is lifted the nerve root is pulled against the disc which is protruding at that level. This irritates the nerve and the patient experiences pain. This usually occurs at an angle between 45° and 60° on the affected side though not on the other side. It was in Dr Spira's experience extremely rare for sciatica to be present in both legs. This meant that in nearly all patients with sciatica, straight leg raising was pain-free on one side though painful beyond a particular angle on the other. Dr Spira had never previously seen a plaintiff complain of extreme pain at 20° on one side and 30° on the other. The complaints were entirely inconsistent with the plaintiff's ability to raise each leg to 90° when sitting. In his experience, a person complaining of extreme pain at, for example, 45°, would be quite incapable of having their leg raised to 90°.

80. Dr Spira was asked whether the phenomenon could be explained by hysterical pain. His answer was that he had never come across hysterical pain, although he had come across hysterical weakness and hysterical numbness.

81. In the course of cross-examination, Dr Spira agreed that treatment by intramuscular injection would only be undertaken where there was complaint by the patient of a severe pain level.

82. Dr Spira was asked to comment on the report of an MRI scan of 18 December 2001, and to agree that the scan demonstrated sciatica caused at the L5-S1 level. He disagreed with this, and disagreed with the radiologist's opinion of the film. He explained that he regularly reviewed MRI scan films, this being his specialist field, and that he could see no impingement on the S1 nerve root. He explained that a displacement of a nerve root was not enough to irritate it. What was significant was compression of the nerve root. In the case of a posterior disc protrusion in the midline or paramedian areas of the disc, there was nothing for the disc to compress against. It was the far lateral aspects of a disc which compressed nerve roots when protruding. Dr Spira said that he regularly views MRI scans and that it is not unusual for him to disagree with the report of the radiologist who provided the original opinion. He said that it was not unusual for a radiologist to report on a scan out of clinical context and to make a presumed diagnosis on the basis of a history provided on the referral form, and in these circumstances to get the diagnosis wrong.

83. Dr Spira said that he had never made a diagnosis of chronic pain syndrome. His belief was that pain must have a cause and that his task as a neurologist was to find the cause. His impression was that the diagnosis of chronic pain syndrome had been developed as a fallback position where a clinician was unable to find a cause for pain, and that it was not in itself an acceptable explanation. He had seen the diagnosis made often by pain specialists but not by neurologists or neurosurgeons. He regarded the diagnosis as unfortunate because it gave the impression that there was no longer any need to look for the cause of the pain and to treat the cause.

84. Dr Spira said that he did not see any evidence of swelling or muscle spasm. He accepted that those symptoms might have been apparent on occasions but thought that they were more likely to be caused by the application of a hot water bottle than by injury. There was no way, he said, that a lumbar disc injury, no matter how severe, could produce redness or swelling in the back.

85. Dr Garth Eaton, occupational physician, saw the plaintiff in October 2003 on referral from her general practitioner. He had previously seen her in July and August 2000 but prepared no separate reports at that time, and I take it that the opinion that he expressed in his report of 23 November 2003 and in his oral evidence in August 2004 were based primarily on his assessment of October 2003. He found the plaintiff quite distressed and apparently in severe discomfort and pain. He looked at available radiological reports, and diagnosed her as suffering from a chronic spinal pain disorder and probable complex regional pain syndrome in the lumbo-sacral spine, overlaid by symptoms of anxiety and depression and post-traumatic stress disorder. He thought that generally her prognosis was poor, having regard to the length of time since her accident, but thought that she might benefit from an intensive pain management programme such as one offered at the Royal North Shore Hospital in Sydney at a cost of up to $10,000. She was unable to work when he saw her but might improve with the help of such a programme to a point where she could work part-time in a sedentary clerical job. He thought that her condition, from the information provided to him, was directly and consequentially related to injuries in the motor accident of April 2000.

86. In his oral evidence, he said that he had seen many patients like the plaintiff. He agreed that he generally accepted what patients told him, and he had accepted the plaintiff. He agreed that some patients exaggerate and feign symptoms. His experience was that some patients with apparently relatively minor basic injuries developed a more serious chronic pain syndrome over time due to overlaid psycho-social issues. He thought that in many cases so called pain behaviour was subconscious. He could not exclude the plaintiff having adopted a sick or injured role. He said that embellishment sometimes occurred with pain behaviour, and also that a chronic pain condition was not always constant, twenty-four hours a day seven days a week. In some cases there were intermittent disabling bouts of back pain with better periods between. When giving a history, some patients in embellishing their story were crying for help and perhaps not making it clear about their better times. He agreed that the fact that the plaintiff was involved in the present litigation was probably a psychological stressor for her.

87. The solicitors for the defendants sent the plaintiff in December 2003 to a clinical neuropsychologist, Dr Marian Scarrabelotti. She was not called to give oral evidence. She saw the plaintiff over three sessions, conducted testing and took a detailed history. She prepared a lengthy report, concluding that the plaintiff was of average to high average intelligence with average to high average memory. She found no evidence that the plaintiff was exaggerating her symptoms. She was suffering from a moderate to severe level of depression and anxiety and should continue with treatment by Dr Mahoney. Her condition was characterised as a major depressive and somatisation disorder.

88. The plaintiff received strong support from her longstanding general practitioner, Dr Jacob Foo, who gave evidence in March 2005. At that time he did not regard the plaintiff as capable of full-time work, and did not expect that she would be able to work again in the foreseeable future. He attributed this to her back pain, which he thought was caused by the April 2000 car accident. She had developed a chronic pain syndrome, with migraine headaches from time to time which were probably secondary to that syndrome. The prescribed medication related to the syndrome had probably aggravated bowel problems and played a part in causing her to vomit from time to time. Her post-traumatic stress had been aggravated by the incident with the massage therapist. Asked whether the plaintiff was genuine in her complaints as to symptoms, he replied "yes, to the best of my knowledge, yes". He did not think that she had ever exaggerated her symptoms to him.

89. Dr Foo had first seen the plaintiff in September 1999 in relation to her abdominal complaints. She was dehydrated and Dr Foo did not have time to take a full history from her. She had presented with a major problem and he had to get her to hospital fairly quickly. For that reason, he had never got around to taking a general life history from her.

90. When cross-examined, he conceded that he had been unaware of any migraine headaches before the accident. His understanding as to current medical thinking was that most cases of migraine originated from the neck. Because she had complained of a neck injury in the car accident he had formed the opinion that the accident was the cause of the migraine headaches. He would normally have inquired of a patient as to whether any symptoms had been present before an injury, but he did not do so with the plaintiff, mainly, he said, because she had so many problems. He thought on reflection that he had probably asked whether she had any history of migraines, and that she probably replied in the negative, as otherwise he would have noted the history specifically. His answer was the same in relation to any admission to hospital prior to December 1999. He would have recorded any history he had been given which he had seen as relevant. He had been previously unaware of the plaintiff's admission to hospital in January 1997 for five days, and of the fact that the investigations at that time included a lumbar puncture. When counsel took him through the hospital records as to the diagnostic procedures undertaken during that time, he agreed that these had been done to exclude other possible causes of severe headaches, leaving the diagnosis of possible migraine.

91. Dr Foo agreed that during the course of his treatment of the plaintiff, initially her neck symptoms overwhelmed her low back symptoms, to the extent that he was not given a history of low back pain until 11 May 2000, about two weeks after the accident. From that point, the neck had got very much better, whilst the back had become much worse. He agreed that the injuries to the neck and the back were both soft-tissue in nature. He also agreed that it was his practice to deal with his patients on their merits, and to accept the history and complaints conveyed to him, rather than to investigate the accuracy of the history or the genuineness of the complaints. He agreed that with a patient like the plaintiff, he was limited as a general practitioner to forming conclusions from the history he was given and from the results of his physical examination of the patient. He agreed that both of these were liable to the subjective influence of the patient. He had seen swelling and redness in the plaintiff's low back but agreed that it was possible that these had been caused by the application of a hot water bottle.

92. Dr Foo had not been given any history as to the plaintiff's childhood physical and sexual abuse by her father or stepfather. He agreed that such abuse could constitute the trauma necessary for a diagnosis of post-traumatic stress disorder.

93. Dr Foo continued to treat the plaintiff as her general practitioner until late July 2004, shortly before the resumption of the hearing after a break of four months. Asked whether she had always presented with an appearance of severe pain, he said that there had been fluctuations in her presentation. There had been days when she had been much worse and days when she had been somewhat better, but there had never been days when she was totally free of pain or limitation of movement.

94. Oral evidence was given in August 2004 by Dr Chan-Feng Lin, a general practitioner working in Dr Foo's practice. Dr Lin had by then been in general practice for about two years, having graduated about five years earlier. He saw the plaintiff on occasions in late 2002, in Dr Foo's absence, but began to see her more regularly from January 2004. The plaintiff had run out of Endone tablets and Dr Foo was away. Dr Lin tried the plaintiff out on a number of strong painkillers, settling on slow release MS Contin with Endone, accompanied by Zofran wafers for control of vomiting and nausea. On occasion he administered intramuscular morphine injections when the plaintiff presented complaining of severe pain.

95. Dr Lin thought it very unlikely that the plaintiff would ever return to any form of work. He conceded in cross-examination that he was reliant in arriving at this opinion on his examination of the plaintiff and on the history he had been given, both of which were subjective. Additionally he had objective material in the form of radiological reports, and he had felt muscle spasm, mainly in the low back but on one occasion in the neck, and he had seen swelling in the lumbar area. On physical examination, the plaintiff had invariably presented as unable to stand upright or lean backwards. Dr Lin believed that she was trying her best to attempt these movements. He accepted that the plaintiff suffered from chronic pain and expressed the view that the "pain started from the accident".

96. Dr Lin was asked to assume that the plaintiff had in recent times been able to walk up and down stairs freely, walk along a beach for half a kilometre or more, sit and stand without restriction, and engage in sexual activities. On that assumption, he was asked whether he would agree that his assessment of her might have been in error. His response was that he had never seen her engage in those activities. He would not agree that his assessment was wrong. He said that the plaintiff's presentation would depend on the activities she had engaged in the day before. He agreed that he had never seen her present as totally unrestricted, and that she had always given the appearance of being restricted and in pain. Ultimately he agreed that if there had been periods when she was totally unrestricted, this would be inconsistent with her history and presentation to him. Nevertheless Dr Lin believed that the plaintiff's pain was genuine and that she was not faking or exaggerating her symptoms.

97. Shortly after the portion of the hearing which took place in August 2004, the plaintiff moved permanently to Queensland. She became a patient of Dr Rebecca Truscott-Dunn, a general practitioner at Springfield Lakes, an outer south-western suburb of Brisbane. She first saw the plaintiff on 9 September 2004, and by the time she gave evidence in March 2005 had seen the plaintiff on twenty to twenty-five occasions. She accepted the diagnosis of chronic pain syndrome which she understood had been made in Canberra. She arranged for the plaintiff to see a local physiotherapist, and also a psychologist, and she referred the plaintiff to Dr Graham Rice, a pain specialist, who saw the plaintiff two or three times. She remained on strong medication including MS Contin, Oxynorm, Valium and Zoloft. She did not feel that there had been much improvement in the plaintiff's condition over the six months she had been her patient. She could not see the plaintiff having a working future or leading anything like a normal life. She regarded the plaintiff as genuine, compliant with treatment and willing to try new things. She had seen the plaintiff fluctuate in symptoms, having better and worse days. She had never seen her free of pain, or able to move without restriction. She acknowledged that she was reliant upon subjective matters, and that there was no objective indicator of the plaintiff's level of pain or capacity to work.

98. I have previously mentioned Dr Terry Gavaghan, who treated the plaintiff for abdominal symptoms in 1999, referring her to Dr Jeans for surgery in September of that year. Dr Gavaghan did not have any further involvement in the plaintiff's treatment until 2003. Dr Foo referred the plaintiff in June of that year to Dr Gavaghan's practice with symptoms of nausea and vomiting. She was seen by a locum, Dr Mike Corbett. Dr Corbett was given a history of the plaintiff's cervical cancer and hysterectomy and of her surgery in 1999 for removal of the appendix and gall bladder. He was also told about some migraine prior to the motor accident. The history then dealt with her chronic cervical and lumbar pain syndrome secondary to the car accident, and nausea, vomiting and epigastric pain presumed to be secondary to opiate-induced gastroparesis. On examination he noted marking on her back which he attributed to hot water bottle application. He confirmed the provisional diagnosis but thought that the plaintiff should have a gastroscopy to exclude structural lesions and thought that all analgesics containing opiates should be withdrawn. In this regard, he said, she would need the help of Dr Cohen, her pain specialist in Sydney.

99. Dr Gavaghan conducted the endoscopy on 7 July 2003. The results were generally normal, except that the stomach was mildly reddened. No definite cause was found for the plaintiff's symptoms and Dr Gavaghan thought that Dr Corbett's assessment of gastroparesis induced by the medication was probably correct. The symptoms would continue while she remained on the same medication regime.

100. In cross-examination, I had the impression that Dr Gavaghan was reluctant to make any concessions which might have been to the plaintiff's detriment. He seemed keen to attribute all of her problems following the motor vehicle accident to the injuries she sustained in the accident, and was unable to explain satisfactorily a reference in his referral letter to Dr John Saboisky, psychiatrist, dated 26 May 2000, to "nausea ... associated with vomiting and further weight loss ... very significantly depressed over the last few months with all of this history ...". In a letter of the same date to Dr Michael Ponsonby, the plaintiff's then general practitioner, Dr Gavaghan said

Heather Branagan came into Calvary Hospital recently under my care. She is a difficult young lady as you know and has a habit of putting a lot of people off side. She has had extensive investigation for recurrent abdominal pain ... and to treat this Phil Jeans has ... undertaken cholecystectomy ... but following cholecystectomy her pain did not settle and he subsequently performed a sphincterotomy which as I understand had a complicated post-operative course. The reason for her admission to Calvary was the fact that she had a motor vehicle accident and had developed a whiplash injury to her neck and had chronic neck pain and this was adding to all her other symptoms of abdominal pain and causing depression and anxiety and her pain had become so consuming that she had stopped eating, she had become intensely nauseated and really was not coping. Her main problem I believe now is one of depression and anxiety. She has lost an enormous amount of weight, she finds she can't eat without feeling nauseated but it seems to me that chronic cervical pain and nausea is the main problem. I suspect there is a major psychogenic component to her nausea, I don't believe there is an organic cause. She has been referred to John Saboisky and I will take the liberty of writing to John and asking her to be reviewed by him earlier.

101. Dr Gavaghan in his oral evidence expressed the opinion that the plaintiff had recovered generally from her abdominal surgery by Dr Jeans before the car accident, and that it was the injuries caused by the car accident which had led to her symptoms when he saw her earlier in May 2000. When cross-examined about this inconsistency he became somewhat petulant and charged counsel for the defendants with engaging in semantics. He is clearly very sympathetic to the plaintiff and it seemed to me that he may have allowed this to cloud his judgment. I would take more notice of the contents of his letters of 26 May 2000 in concluding that he was then satisfied that the plaintiff's abdominal symptoms and to some degree her depression and anxiety were already apparent prior to the motor accident.

102. I mention in passing that no report from Dr Saboisky was tendered, and that he was not called to give evidence. There was no explanation for this. It seems to me that I should draw the inference that Dr Saboisky saw the plaintiff in about June 2000 and that his evidence would not have assisted her case.

103. Similarly, in his report of 7 February 2003 Dr Foo mentioned that on 29 July 2002 the plaintiff was referred to Dr William Knox, psychiatrist, for an opinion on her mental state and advice on pain management. According to Dr Foo, Dr Knox suggested that she continue her medication (morphine and Valium) until her surgery. Again, I note that there was no report by Dr Knox in evidence. In this case, it may have been because Dr Knox was only peripherally involved in the plaintiff's treatment. Nevertheless, it seems to me that I must infer that if he had given evidence, he would not have expressed any opinion which might have assisted the plaintiff's case, beyond the very brief summary in Dr Foo's report. Taken in conjunction with the absence of any evidence from Dr Fridgant and Dr Morice, under whose care the plaintiff spent three weeks as an inpatient at the mental health services clinic at Calvary Hospital during August-September 2000, as well as the absence of any evidence from Dr Saboisky, the inference that evidence from psychiatrists who had treated the plaintiff subsequent to her motor accident would not have assisted her case is somewhat stronger.

The lay evidence supporting the plaintiff's case

104. Evidence was called in support of the plaintiff's case from two of her former partners, and a number of family members, friends and work colleagues. I have previously referred to the evidence of Mr Sterecker, a work colleague at ATSIC, and Mr Isselmann, his cousin. For the reasons previously outlined, I did not find their evidence of much assistance.

105. The plaintiff's mother, Mrs Anne Shifflett, gave evidence at the end of March 2005. By that time she had been living at Springfield Lakes in Queensland for about six months, having moved from Canberra. She had married the plaintiff's father, William Buerckner, in 1962. They had two children, Kim and Heather. Kim was born in 1964 and Heather, the plaintiff, in 1970. The family lived at Parkes in central western New South Wales. Mrs Shifflett worked for about fifteen years as a stewardess with the NSW State Rail Authority, on a line that went through Parkes to Broken Hill. She said that she became aware that her elder daughter Kim was being sexually and physically molested by her father. She met Michael Shifflett, who was to become her second husband and to whom she is still married, in Broken Hill. She left her husband and entered a relationship with Mr Shifflett, and in 1980 moved to Virginia in the United States of America with him, taking her daughters. They lived there for about five years, and then returned to Parkes in New South Wales. On their return she discovered that her younger daughter Heather was pregnant to an American schoolboy of the same age. She was devastated but discussed the options with Heather, who decided to have the baby, Joshua.

106. In 1987 they moved to Canberra where they lived at a caravan park. Mr and Mrs Shifflett lived in the caretakers' caravan, and Kim and Heather shared another caravan with Kim's daughter Kiana and, after his birth, Heather's son Josh. Mrs Shifflett and Kim worked at the caravan park. Heather attended Dickson College for a time. After a few months living at the caravan park, Kim and Heather and their children moved into government housing for a year or two and then bought a house together, with Heather's then fiancé Sean Branagan. Heather and Sean got married, and their daughter Emily was born in 1992. When Emily was about two, Heather worked with Mrs Shifflett in the restaurant at the caravan park, and later worked with Sean in his mobile telephone business. After about three years the marriage broke up, largely because of Sean's testicular cancer. Mrs Shifflett remembered the plaintiff working at pharmacies, and remembered that she went to a new job at ATSIC, which she liked better than anything she had previously done.

107. Mrs Shifflett did not remember Heather being admitted to the psychiatric unit at Calvary Hospital in 1997 but did remember her admission for gall bladder and appendix surgery. She conceded that she was not good with dates. She recalled that the plaintiff had problems with vomiting before the surgery, after which she said that the plaintiff was getting better and was back to working full-time by the time of the car accident, though she was still vomiting from time to time. Mrs Shifflett said that before the car accident the plaintiff managed with her children and housework "pretty much all on her own". Mrs Shifflett used to take the children on outings at weekends. She had worked full-time all her life.

108. She recalled that on the day of the accident she received a telephone call, she thought from either Joe Carbone or her granddaughter Kiana Alder, to tell her that the plaintiff had been involved in an accident. She went to Mr Carbone's house. She could tell that the plaintiff was in pain, and unable to sit for more than a few minutes. She complained about pain in the lower back and the neck. Mrs Shifflett took the children away to look after them while Mr Carbone took the plaintiff to hospital.

109. She recalled the plaintiff after discharge wearing a neck brace, and later unsuccessfully attempting to get back to work. She recalled that the plaintiff's analgesic medication was causing nausea and vomiting. She thought that the plaintiff's condition had remained much the same until she and the plaintiff moved to Brisbane in about September 2004, after which the plaintiff had been a little better because of the warmer climate, not needing to use her hot water bottle as much. After the accident the plaintiff was unable to attend to any household duties, or to play with the children, and became moody and bad-tempered. At one point her emotional state was such that Mrs Shifflett said that she "called the mental health". The plaintiff had said that she was sick of being in pain all the time and unable to do things and that she intended to kill herself.

110. Mrs Shifflett's evidence was supportive of a very significant Griffiths v Kerkemeyer claim. She said that after the accident, while the plaintiff continued to live with Mr Carbone, she always called in to see the plaintiff after work. She would help tidy up, and saw that Mr Carbone was assisting in this regard also. She would take the washing home with her and do the washing and ironing, and return it. She would spend about an hour attending to the plaintiff's needs after work on week days, and a couple of hours each Saturday and each Sunday, for example helping to prepare the evening meal and getting the children settled and into bed. She also undertook house cleaning at weekends, within those hours.

111. She recalled that at one stage, while the plaintiff was in hospital, she saw Colin Steele who asked how the plaintiff was. They had a discussion about her, following which Mr Steele made contact with the plaintiff and they started to see each other. Eventually in 2001, Mr Steele returned to Canberra from Queensland where he had been living, and he and the plaintiff lived together in a house at Palmerston. Mr Steele was initially working in Canberra in telecommunications but subsequently gave up paid employment and successfully applied for a pension as a full-time carer for the plaintiff. Mrs Shifflett said that she assisted in looking after the plaintiff and the children, house cleaning, washing, ironing, and taking the children to sporting activities. She agreed that she had high standards in relation to house cleanliness. Mr Steele tried to keep the house clean but fell well short of Mrs Shifflett's standards and she found it necessary to redo everything he had done.

112. Mrs Shifflett also recalled assisting the plaintiff on occasions in the bathroom, including washing her hair and her legs, and helping her get dressed. There were many occasions when the plaintiff had medical appointments, including times when she had to go to Sydney to see doctors. On these occasions Mrs Shifflett used to look after the children and take them to school and sporting activities. She estimated that she would spend a couple of hours every day attending to such activities during the time the plaintiff was living with Mr Steele, in addition to spending six or seven hours, sometimes longer, during weekends.

113. In cross-examination, Mrs Shifflett agreed that the plaintiff had put on about ten kilograms or perhaps a little more during the seven months since the action had last been before the Court. She attributed this to the Zofran wafers which neutralised the side effects of her morphine-derived medication. She said that the plaintiff would still vomit occasionally, but that this was her (Mrs Shifflett's) fault for forgetting to give the plaintiff her medication. She agreed that the plaintiff was quite capable of taking her own medication, but said that a doctor had asked her to monitor the medication and that she did so. She had lived in Canberra since 1985 or 1986 and had been in regular contact with the plaintiff before the car accident, seeing her a few times every week and sometimes helping out with the children when the plaintiff was at work. She recalled that the plaintiff had had a few admissions to hospital before the accident, for various reasons. She recalled an admission for a lumbar puncture but agreed that she was a little vague about dates and the sequence of events. She thought that after the lumbar puncture the plaintiff was generally coping well physically and psychologically. Counsel took Mrs Shifflett through the various complaints recorded by the social worker at the time of the 1997 admission to hospital. Mrs Shifflett had no recollection of the plaintiff complaining of or showing signs of any of the recorded symptoms. She disagreed that the plaintiff had been very thin immediately before the car accident, and she disagreed with the entry in the hospital records to the effect that the plaintiff had lost thirty kilos over the twelve months leading up to the accident.

114. In a distressing portion of the cross-examination for Mrs Shifflett, she said that she had been unaware that her second husband had abused the plaintiff sexually in the United States until she found out about it during a session with the plaintiff and her psychologist in Canberra, well after the car accident. She was then asked whether the plaintiff had ever told her that she had been sexually abused by her father, that is Mrs Shifflett's first husband. She said that she had never been aware of this though she was aware of the abuse of her elder daughter. Any suggestion that the plaintiff's natural father had sexually abused her was complete news to Mrs Shifflett, though she accepted that if the plaintiff had told doctors of this, she would have been telling the truth. It was then put to her that with that recent evidence in mind, it may well have been true that the plaintiff was suffering in 1997 from the various symptoms which she described to the social worker. Mrs Shifflett on reflection agreed with this proposition.

115. Questioned about an entry in the records of Dr Foo's practice in March 2000 to the effect that the plaintiff was possibly suffering from depression, she said that she had seen no signs of this and been unaware of it.

116. Mrs Shifflett was then asked about the period before Mr Steele moved from Queensland, when the plaintiff was living alone with her children. She remembered taking some leave during that period, perhaps a couple of weeks, and spending the entire time helping the plaintiff out.

117. Mrs Shifflett was asked about her practice prior to the car accident in relation to visiting the plaintiff and her children. She said that she would call in every day after work and stay for an hour or so, talking to the plaintiff. She would take any washing or ironing home. She agreed that she followed, after the accident, the same pattern as to visiting the plaintiff and the children.

118. While the plaintiff was living with Mr Steele, Mrs Shifflett agreed that Mr Steele's efforts at vacuuming and cleaning the house were so poor that she felt an obligation to do it again. She would come over and vacuum the house every day, whether or not Mr Steele had already done it. She agreed that her standards were probably higher than the average person. The same applied to cleaning the stove, cleaning the windows and even cleaning the skirting boards, which she would do once a week. She would give the stove a thorough scrub and clean with a spray about once a month and clean the windows about once every two months. In addition she sometimes mowed the lawn and weeded the garden. She would do the lawn edges, which Mr Steele neglected. She would not concede that she was obsessive about cleaning.

119. At the time she gave her evidence, at the end of March 2005, Mrs Shifflett was living in Queensland in a house with her husband, the plaintiff and the plaintiff's daughter Emily. The plaintiff's son Joshua had moved out and was living with his partner and child elsewhere. The family had been living in the house since mid-October 2004. The cooking was done by Mrs Shifflett or her husband with the plaintiff occasionally preparing a meal. Mrs Shifflett attended to vacuuming, bedmaking, housecleaning and looking after Emily, by then twelve. She said that she had moved to Queensland to provide the plaintiff with the care she needed. If it had not been for this, she would still be living in Canberra and working at the retirement village where she had worked for a number of years. Mr Shifflett was working full-time, sometimes six or even seven days a week, with the same company he had been with in Canberra. Mrs Shifflett was looking for employment in Queensland at the time she gave her evidence.

120. The plaintiff's elder sister Kim Alder gave evidence in late April 2004. She had lived with the plaintiff as a child at Parkes and later in the United States. She had shared a caravan with her in Canberra in 1987 later moving into a government house with their children, and a year or two after that, buying a house together with her sister and Sean Branagan. In all they lived together for about three years after returning to Australia. Ms Alder moved to Brisbane during 1994, after which she continued to see the plaintiff two or three times a year. She could not recall how long it was before the car accident that she had last seen her sister: she did not travel to Canberra to visit the plaintiff at the time of her appendix and gall bladder surgery. She saw the plaintiff after the accident for the first time about four or five months later, and I had the impression that most of her information about the plaintiff up to that time had come from telephone conversations, probably some with the plaintiff and some with her mother. She said that she was a little shocked at first to see the plaintiff, who was bedridden and heavily affected by medication. She had lost weight dramatically. As time went on she observed that the plaintiff had good days and bad days. When she and the plaintiff visited each other, she helped to bath or shower the plaintiff and to dress her. She noticed a significant change in the plaintiff's mood after the accident. The plaintiff's personality before the accident had been bubbly and she had been full of energy. After the accident she had become very depressed. She had been staying with the plaintiff in Canberra for four or five days before giving evidence and had been up four or five times a night attending to the plaintiff's needs, such as rubbing Chinese herbal ointment into her back. She had felt and seen a large lump in the area of the plaintiff's low back.

121. In cross-examination, Ms Alder agreed that the plaintiff's hair was not presently its natural colour and had been dyed. She agreed that hair dying was an involved and lengthy process, and that the plaintiff had taken enough interest in her appearance to dye her hair.

122. Ms Alder had been unaware that her stepfather had molested the plaintiff until two or three years earlier when it came out during counselling sessions with Dr Mahoney. Her recollection was that she and her sister had not lived together since 1988 or 1989, both marrying in 1991. When they were sharing a house, Ms Alder was in a separate flat at the back and was also working full-time. In effect they were living relatively separate lives.

123. The plaintiff had travelled to Queensland and stayed with Ms Alder during the year she injured her wrist (which from other evidence must have been about 2002). She came by car with Mr Steele, her children and her mother, and they stayed a week. The plaintiff slept a lot during the visit and was unable to do anything around the house.

124. Shown a photograph of the plaintiff doing the dishes, taken in September 2000, she said that the photograph had been taken at her house, and she vaguely recalled the plaintiff coming to Queensland at about that time. She could not recall whether she had been aware that the plaintiff had just come out of hospital. She said that her recollection about the plaintiff's visits to Queensland was vague and that she and the plaintiff had not been close for a long time. She and her sister had not always got along. Ms Alder in September 2000 was living with her husband and two of her three children. Her eldest daughter was living in Canberra at that time. Ms Alder had later separated from her husband.

125. At the end of March 2005, evidence was given by Ms Alder's daughter Kiana. She was then living at a different address at Springfield Lakes with her two-year-old daughter, Mia. Kiana was born in the United States and came to Australia when she was three. She lived in Canberra for eight years with her mother and her aunt (the plaintiff). She then lived in Brisbane for a time with her mother, but at age fourteen returned to Canberra where she lived with her aunt (the plaintiff) and her grandmother (Mrs Shifflett). She lived with them for a year or two. This included the period of the plaintiff's abdominal surgery and also the first car accident. Kiana had a recollection of the plaintiff looking pale, weak and gaunt but could not remember whether this was before or after the abdominal surgery. She recalled that it became her responsibility to pick the plaintiff's daughter Emily up from school because the plaintiff was working full-time. She remembered the day of the car accident. By then, she said, the plaintiff was healthy and "back on track from the eating disorder". She was a good size. Kiana remembered the plaintiff coming in to her then place of residence in Mr Carbone's apartment at Page, and she remembered Mr Carbone taking the plaintiff to hospital. She could not remember when she next saw the plaintiff but said that it was a long time after her discharge from hospital. She recalled the plaintiff being in bed, complaining of headaches and back pain, and constantly vomiting. She was also tired and cranky. She saw the plaintiff on further occasions over the next two years or so. Mostly when she saw the plaintiff, she was trying to sleep. She could not recall seeing the plaintiff out of bed.

126. In September 2002, Kiana moved to live with her mother at Calamvale in Brisbane.

127. Kiana conceded that her memory was unclear and vague as to the events of 1999 and 2000 leading up to the motor accident, saying that she was a typical teenager, in and out of the house, and that she was not around much. There were times when she spent the night elsewhere. She also conceded that in relation to her observations of the plaintiff and things to do with her from 1999 up to March 2005, it was fair to say that she basically remembered some things, but did not remember other things.

128. Evidence was given on the first day of the hearing by Mrs Melissa Stone, a friend of the plaintiff from school days in Canberra. They had been friends for seventeen years, although they had seen less of each other since 1993 when the plaintiff moved to Tasmania. In 1995 Mrs Stone moved to Boolaroo, a suburb of Newcastle in New South Wales. She is married with two sons. She had continued to see the plaintiff twice or sometimes three or four times a year when she visited Canberra. She had run into the plaintiff at a shopping centre in late 1999 or early 2000, after the gall bladder and appendix surgery but before the car accident. The plaintiff looked thin but otherwise seemed fine. She was on her way to work. She did not see the plaintiff again for a couple of years, though she spoke to her on the telephone every couple of months. When she saw the plaintiff she seemed depressed, tired and withdrawn. She was unable to move very much and appeared to be in pain.

129. She had seen her subsequently when the plaintiff and Mr Steele stayed with her on their way to Newcastle by car, and made similar observations, noting that the plaintiff needed assistance from Mr Steele with bathing and dressing. She had never seen any indications of depression in the plaintiff before the car accident. She had seen the plaintiff at Court on the day she gave her evidence, and thought that she did not seem to be improving, if anything apparently walking more slowly and getting worse.

130. I have previously mentioned Paul and Janet Whittingham, the plaintiff's friends with whom she stayed for about a month some time after separating from Mr Carbone. Both gave oral evidence. Mrs Whittingham had got to know the plaintiff through the Majura Junior Soccer Club at Dickson, where their sons Joshua and David played in the same team. Her recollection was that they first met in about 1992 or 1993. She recalled seeing the plaintiff at soccer matches and described her as happy, excitable, and always smiling and laughing and joking. She recalled her becoming excited during games and running up and down the sidelines. From 1995 the two boys were at school together at Gold Creek Primary School and became close friends. Mrs Whittingham and the plaintiff also became good friends. They would go shopping together and would take the boys tenpin bowling or to see a film. They also took the boys to public swimming pools on a couple of occasions, and the plaintiff participated in swimming. For a period of about four or five months, from March to August 1999, Mrs Whittingham did not see so much of the plaintiff because her son was in hospital and subsequently confined to home. When she resumed contact in about August or September 1999, her recollection was that from then until the motor accident she saw no changes in the plaintiff physically or psychologically. She remained happy, vivacious and friendly.

131. She recalled hearing about the accident on radio news and being told about the plaintiff's injuries by Mrs Shifflett. She saw the plaintiff a week or two after the accident, and remembered her sitting up in bed, propped up with pillows and cushions. The plaintiff complained of severe pain in the low back. The plaintiff was not eating much and when she did eat she tended to throw up. Mrs Whittingham also noticed that almost immediately after the accident the plaintiff lost weight dramatically. Communication with her became difficult: the plaintiff seemed confused, which Mrs Whittingham attributed to her medication. She described seeing the plaintiff suffering muscle spasms. It appeared that her whole body had seized up. Mrs Whittingham remembered seeing this phenomenon about once a month in the first few months after the accident. At least once she was at the plaintiff's home when the plaintiff needed to call an ambulance to deal with her pain and muscular restriction. She helped the plaintiff by giving her heat packs, massage and hot showers. She also came over on occasions and helped vacuum or tidy the house, or took the children out for a time.

132. She confirmed that the plaintiff had come to live at her house for about a month. She thought that this was late in 2000 or early in 2001. She took the plaintiff in because she needed help and had nowhere else to go. The plaintiff's son Josh was already staying with the Whittinghams when the plaintiff moved in.

133. The plaintiff had been an inpatient at Calvary Hospital, and Mrs Whittingham recalled collecting her, with her husband, from the hospital and bringing her home. Her husband carried the plaintiff to the main bedroom because she was in pain and unable to walk properly. During the time she was with the Whittinghams, the plaintiff slept in their double bed with Mrs Whittingham, and her husband slept elsewhere in the house. They would go to bed at about 9 or 10 pm, and sit up in bed reading or doing crossword puzzles because the plaintiff was unable to sleep. The plaintiff was propped up with additional pillows. She did not have much movement and was unable to turn her head to read the crossword clues. Mrs Whittingham usually read them out and filled in the words. The plaintiff slept on a typical night for no more than a couple of hours. Mr and Mrs Whittingham found it necessary to get up every three hours or so to heat her wheat packs and refill her hot water bottle. Mrs Whittingham recalled a couple of occasions when the plaintiff had muscle spasms in the back and appeared in a great deal of pain and unable to move. Mr Whittingham carried the plaintiff into the living room to watch television from time to time and carried her to the car at least twice to take her to hospital and once to a doctor. Mrs Whittingham would assist the plaintiff into the shower, and help her while in the shower with washing, including washing the plaintiff's hair. She would then help the plaintiff out of the shower and dry her, and help her to get dressed. She described it as like dressing a child. In addition she helped the plaintiff when she needed to use the lavatory.

134. After the plaintiff moved out from the Whittinghams' home, her recollection was that she moved in for a time with Mr Carbone again. Her recollection about this is clearly faulty: I prefer the evidence of the plaintiff, her mother and Mr Carbone, that the plaintiff did not return to his home after she moved out at the end of August 2000.

135. During the time the plaintiff was with Mr and Mrs Whittingham she seemed very depressed at times, and talked peripherally about suicide. She said on occasion that the children would be better off without her and that she was not living up to her responsibilities as a mother to them.

136. Mrs Whittingham's evidence was that she had kept in touch with the plaintiff after she moved out at the end of the month. The plaintiff had stayed with them a couple of times since, for a weekend or a night, including the Saturday night before Mrs Whittingham gave her evidence in August 2004. On that night the plaintiff had slept in the spare bedroom and had been able to use the bathroom without assistance, but she was still not able to walk around or stand up for lengthy periods and still had restrictions in movement, needing help to get up the stairs.

137. In cross-examination, Mrs Whittingham conceded that while she had vivid memories of some things, her memory of other was a little hazy. She agreed that on a general day-to-day basis as to the plaintiff's overall health, during the year or two before the car accident, she really had no idea. She had not, before the accident, heard the plaintiff complain of any of the problems which were recorded in the 1997 note by the social worker at Calvary Hospital. She had no recollection of the plaintiff ever going to hospital, and specifically was unaware that she had had her appendix and gall bladder removed in September 1999, although she thought that she might have forgotten about this. 1999 had been a hectic year for the Whittingham family and she said that she did not have a great memory.

138. She remained unclear as to precisely when the month the plaintiff spent with them started and finished. Her recollection was that the plaintiff was not with them at Christmas 2000-New Year 2001, and thought it more likely that the month had been before that period rather than after it, but she was quite uncertain. She agreed that the plaintiff had been an invalid when she moved in, and was better at the end of the month, but still needing assistance getting upstairs and into a car, and generally in looking after herself.

139. Mrs Whittingham's evidence was supported by that of her husband Paul, a business analyst with the Australian Taxation Office. Mr Whittingham is a former president of the Majura Soccer Club. He was the only witness to mention that at some point the plaintiff's son, Josh Branagan, changed his name to Josh Steele. Josh did not give evidence and I was not informed whether this change of name survived the breakup of the plaintiff's relationship with Mr Steele. It is certainly suggestive that the plaintiff, Mr Steele and Josh saw the relationship, for a period, as a permanent one.

140. Mr Whittingham's recollection, like that of his wife, was that the plaintiff was a happy and outgoing person before the car accident, and that he had not seen any indications to the contrary during the years leading up to it. He recounted the significant change in her presentation when he first saw her after the accident, about a month later, and as her saw her from time to time thereafter. His recollection was that the plaintiff had broken up with Joe Carbone and had gone to stay with her mother but was finding it difficult to cope. As Mr Whittingham explained it, the plaintiff had "just come out of a relationship with a very nice guy who was a bit controlling and staying with her mother who was also a bit controlling as well". The plaintiff asked whether she could come to stay with the Whittinghams for a while to "try and get herself together a bit more". His recollection was that he had picked the plaintiff up from her mother's place in the middle of the night in tears. He was aware that she had been an inpatient at Calvary Hospital but it is unclear from his evidence when this fitted into the chronology. He thought that the period the plaintiff stayed with them was in September or October. He was able to place this in his mind by reference to a soccer match in Canberra during the 2000 Olympic Games. He said that while the plaintiff was staying at their house, she slept in the double bed with his wife in the main bedroom, and Josh who was also staying slept on a spare bed in their son David's room while Emily slept in the spare room. He slept either in the spare room or on the lounge in the living room.

141. Mr Whittingham conceded that prior to the car accident, he had not seen enough of the plaintiff to comment usefully about fluctuations in weight or in mood. He had no recollection of being aware that she had had operations or been in hospital during 1999.

142. Another ATSIC work colleague was called, Sarah Fahey. Ms Fahey had not known the plaintiff before the accident, and first met her when she returned to work on a graduated programme early in 2001. The plaintiff was working perhaps three hours a day three days a week, undertaking set small tasks around the office. She gave the impression that she was in a lot of pain. Her movement was very restricted, and she walked very cautiously and slowly. She use heat packs from time to time and was tearful on occasions. Ms Fahey's recollection was that she had seen the plaintiff over a period of about eighteen months, until mid- to late 2002. Ms Fahey had left Canberra at the beginning of 2003.

143. I have referred previously to the evidence of Joe Carbone (paragraphs 28-30). The evidence is imprecise as to when the plaintiff moved in with her children to Mr Carbone's flat, but it seems to have been about eighteen months to two years before the first accident. Mr Carbone presented a picture of the plaintiff before the accident as happy and outgoing. She did the cooking, washing, cleaning and other housework and, as he said, he just sat back and let her do it all for him. He thought that she was happy about this arrangement. They used to go cycling and walking with his dog, and would spend time with the children. The plaintiff enjoyed the social activities of his extended Italian family. He recalled that she had a problem with vomiting during 1999, and that in September of that year she had her gall bladder and appendix surgically removed. He recalled that until the operation she was still working at ATSIC and having no problems carrying out her duties. (As I have said previously, it is clear from ATSIC documents in evidence that the plaintiff did not commence employment there until November 1999). Mr Carbone said that after the surgery, the plaintiff would continue to vomit occasionally, after eating fatty food. Otherwise, during the period after the operation until the accident, she was back at work, healthy and building up her weight to a normal size.

144. After the accident, Mr Carbone took the plaintiff to hospital where she spent a couple of days. When she came home, she was unable to attend to the household duties. Mr Carbone said that he took over the housework and looked after the children. As time went by, the plaintiff attempted some household tasks but was generally unable to cope with them. She tried to go back to work, he thought too soon, and it would take her a couple of days to get over a working day. Mr Carbone found himself doing more and more of the home duties as the weeks went by which, he said, "put a strain on my socialising". His sexual relationship with the plaintiff had been highly satisfactory before the accident and, over time, virtually ceased.

145. Mr Carbone was questioned in chief about the time he had spent undertaking household and care tasks. Although he was working full-time, he estimated that he was spending an additional ten to twelve hours a day looking after the plaintiff, the children and the flat. She used a number of additional pillows in bed, and would wake him up during the night and ask him to heat her heat pack in the microwave. At one point he spent about $600 on magnets with adhesive stickers which they put on the plaintiff's lower back. He said that these helped with her pain but that her skin reacted to the stickers and she could not continue with them. He said that this had been advised by Dr Foo (Dr Foo in his evidence denied that he had recommended them. He said that the plaintiff might have asked about them and he would have replied that he could not see how they could do any harm). Mr Carbone said that he had to take the plaintiff to hospital and to the doctor a number of times. She became moody and withdrawn, which strained their relationship. In about August 2000 they flew to Adelaide on holiday. While there he had to take her to a doctor and to a hospital. In retrospect he thought that the trip to Adelaide was a mistake and that she should have stayed at home. He said that the plaintiff treated him and his family with disrespect, which was the final straw, and after their return to Canberra at about the end of August 2000 he asked her to leave. He said that after the accident she lost about thirty kilos in weight, over a period.

146. As I said earlier (para 30) I had considerable doubt about the reliability of Mr Carbone's evidence. I am not prepared to accept that he could have spent an average of ten to twelve hours a day on housework and caring for the plaintiff. I accept that he spent some time, but ten to twelve hours a day, on top of full-time work, stretches credulity too far. I accept that Mr Carbone felt that the accident had changed the plaintiff and changed their relationship, to such an extent that within four months of the accident he decided to bring the relationship to an end and effectively to evict the plaintiff and her children from his flat. He has probably convinced himself that he spent virtually all of his non-working hours looking after the plaintiff and the housework. No other motivation for exaggerating was put to him in cross-examination. It is hard to see how, having regard to the history of the relationship, which had come to an end more than four years before he gave evidence, he could have any incentive to give false evidence for the purpose of inflating the plaintiff's damages. Nevertheless I am left with the strong impression that his evidence as to the time spent on such tasks was grossly exaggerated and is unreliable.

147. Another of the plaintiff's former partners, Colin Steele, gave evidence in March 2005. By that time he was living in Queensland. He described himself as a computer engineer by trade. He had known the plaintiff since she was in year 11 and he in year 12 at Dickson College. She was his girlfriend for a time, but they decided to break up because he chose to pursue a career and she decided to stay at home and be a full-time mother to her son. He kept in contact with her over the years, and was later on friendly terms with her husband Sean Branagan. He became aware that her marriage to Mr Branagan had broken up. Late in 2000, he saw her mother in Canberra, and she suggested that he telephone the plaintiff. He was told about the car accident. He started to see the plaintiff again in late November 2000. The first time he saw her was at the psychiatric ward at Calvary Hospital. She had lost a lot of weight and looked pale and in pain. He had seen the plaintiff on rare occasions when he had visited her over the years leading up to the accident. On one such occasion she was holding a birthday party for twenty-five to thirty children with jumping castles and other activities.

148. After the accident, she appeared to be in constant pain in the neck and lower back. He was told that she had been in a relationship with Mr Carbone, whom he did not know, and that it had just ended or they were in the process of ending it. The plaintiff was bought by her mother by car to a birthday party for Mr Steele at a restaurant with members of his family early in November 2000. She appeared in great pain and was continually moving but unable to get comfortable. A week or two after that her mother drove her over to Mr Steele's residence at Chifley and she stayed the night, returning the next morning. He massaged her. She appeared to be in great pain and no sexual activity took place. Mr Steele gave the plaintiff the rental bond money to allow her to move out of the Whittinghams' house and into her own house at Palmerston, probably at about the end of November 2000. He started to see the plaintiff once every week or two, helping with housework and helping to look after the plaintiff. He recalled her lower back being red and inflamed, and on one occasion he could feel muscle tightening in her low back and also in her neck. Once or twice a day when he was there he would massage her neck and back with Deep Heat or a similar cream or ointment.

149. Mr Steele went to Queensland immediately after Christmas 2000, and stayed there until the beginning of April 2001. He decided to contact the plaintiff, following which he moved back to Canberra to live with her full-time. The next day he packed his belongings and drove to Canberra, moving into the house at Palmerston with the plaintiff and the children. At this time he felt very emotionally involved and, he said, loved the plaintiff dearly. He developed a very close relationship with the children. He was not in employment at that time, and attended to the plaintiff's needs and to housework, lawnmowing and gardening. The plaintiff would attempt to help but was usually unable to do so for more than a short period. Mr Steele drove the children to school and sometimes helped with packing their lunches. He helped the plaintiff in the bathroom. He estimated that he was spending on average four hours a day doing housework and two to three hours looking after the plaintiff, a total of six to seven hours of what might be described as gratuitous care. During this period, sexual intercourse took place between them only on rare occasions. From Mr Steele's observation, the plaintiff found this very painful but participated to please him. He described her usual mood as being "very short fused". She appeared to be in constant pain and would lose her temper with him and with the children regularly.

150. Mr Steele drove the plaintiff to and from work at ATSIC. She looked forward to going to work but complained about pain afterwards. He took her from time to time to doctors and to hospital when the pain was too much for her to cope with. At some point the plaintiff and Mr Steele moved from Palmerston to a house at Nicholls. For a time he and the plaintiff took a foster child into their home.

151. On four occasions Mr Steele's mother came from Queensland to stay with the plaintiff and himself, for periods amounting to four weeks in all. His mother helped with housework including cooking. After the separation, Mr Steele had seen the plaintiff only twice. He came to Canberra and stayed with her overnight in December 2004, and he saw her again in February 2005, on the evening of St Valentine's Day. He observed no improvement in her presentation on those occasions. He was asked in cross-examination why he and the plaintiff separated. He attributed this to differences with the children and with the plaintiff's mother. He also blamed anxiety and frustration on his part and on the part of the plaintiff and members of her family. These included Josh's girlfriend Kristen, who was living with them as part of the family.

152. He said that he had remained close friends with the plaintiff since they first met. Over the years since leaving college, they had stayed in touch and caught up with each other if at any time they were both single. An example of this was that in 1997 they saw each other twice and had intercourse on both occasions. He did not observe any indications of any of the matters recorded by the social worker in the hospital records at the beginning of 1997. He was unsure whether he had seen the plaintiff after 1997 and prior to the motor accident. He appeared unaware of her abdominal problems and surgery in 1999.

153. Mr Steele was not employed at the time he gave his evidence in March 2005. He was studying to become a private investigator and doing other (presumably unpaid) casual work. After he moved to Canberra in April 2001 he had done some casual work as a pizza delivery driver. At some time in 2002 he successfully applied for a carer's pension. He remained on the pension until the separation, which must have been early in 2004. Mr Steele stayed in Canberra for about a month after the separation and then returned to Queensland.

154. Mr Steele accepted that the plaintiff's mother had spent considerable periods of time on housework at both of the houses where he lived with the plaintiff. He regarded her as obsessive about cleanliness. On occasions, he said, "she would fuss around and reclean things again. They obviously weren't to her standards...". He agreed also that at times there had been a cleaner paid for by Comcare.

155. It is unclear precisely when the relationship between the plaintiff and Mr Steele came to an end. She was not asked about this in chief or in cross-examination. Mr Steele's earlier evidence was that their relationship lasted some eighteen months to two years. It was put to him in cross-examination that the separation occurred in March 2004, the month before the commencement of the hearing, and he accepted this. This would mean that the relationship lasted for almost three years. Mr Steele admitted in cross-examination, with some reluctance, that he and the plaintiff had established communication with another couple through an internet chat room, and had had a meeting with the couple in the course of which he had sex in the plaintiff's presence. The plaintiff was unable to have sex because she was in pain. Mr Steele conceded that this incident was a factor leading to the separation.

156. I should make it clear that the plaintiff in her evidence in April 2004 did not try to convey the impression that she and Mr Steele were still living together. There was simply no mention in her evidence of the timing or reasons for the separation.

The plaintiff's 2004 trip to Queensland

157. The plaintiff was still in cross-examination on 29 April 2004, when the hearing was adjourned for four months. Upon its resumption on 23 August 2004, counsel for the plaintiff by arrangement interrupted the cross-examination to ask the plaintiff in chief questions designed to bring the Court up to date as to her condition and treatment, and what she had been doing during the intervening period. It was led from her that she had flown to Brisbane on 5 May 2004 to stay with her sister. She had found the trip hard and had seen a doctor the day she arrived. She stayed in Brisbane for about a week, returning to Canberra for an assessment by an occupational therapist at her home in Canberra. After three days in Canberra she returned to Queensland, taking her daughter Emily. Again she found the plane trip painful, and took extra medication during takeoff and landing, in the form of quick-release morphine and two extra Valium tablets. She stayed in Queensland for four or five weeks, staying with her sister Kim. Asked what kinds of things she did during that period, she replied "We caught up a lot on family things, talking. I was also sick during that time with tonsillitis. I did a bit of knitting, a bit of reading, lots of sleeping." Asked whether she went out at all, she replied "We went to the mall once for about an hour to collect my niece's birthday present and we went for a barbecue, which was about 500 metres down the road from my sister's house, in the afternoon." She said that she had difficulty walking around during the shopping trip, and had to carry her hot water bottle, and take extra medication afterwards. She said that she was provided with a chair at the barbecue, and she sat in the chair with her hot water bottle, spending only about forty-five minutes there.

158. During her period in Queensland, the plaintiff decided to move there permanently. The warmer weather alleviated her pain. She did not have to carry her hot water bottle all the time, and was able to lie in the sun. She arranged to enrol Emily at a local primary school from the beginning of 2005. The plaintiff and Emily came back to Canberra for the continued hearing of the action, but otherwise her plan was to return to Queensland as soon as she could. Her belongings had already been taken to Queensland by a removalist. She had found a four-bedroom house at Springfield. Her sister rented a house through the same agents.

159. Three weeks earlier, that is at the beginning of August 2004, the plaintiff's grandmother had died. The funeral was at Trundle, near Parkes in New South Wales. She travelled as a passenger in a car driven by her mother from Brisbane. She described the car trip as miserable and said that she had spasms in her lower back and down her leg. She went to hospital at Trundle and was given a morphine injection and Valium tablets. She said that her condition was unchanged since the time of her earlier evidence four months previously.

160. It emerged during cross-examination that a great deal more had happened in the plaintiff's life during the intervening period than she had volunteered. She agreed that when she reached Queensland she visited her niece Kiana. I set out the next few questions and answers:

Did a man come around to [her] place? She had a friend come over, yes.

Yes. What was his name? Sorry was it a man or a woman? Kiana had a couple of visitors when I was there one night.

Yes. What were their names, do you remember? Not off my head. I believe the gentleman's name was Steven.

Right and do you remember his surname? Cairnduff, I think.

Sorry? Cairnduff.

Cairnduff? Yes, I think that's it.

Do you know how to spell it? Not off the top of my head, no.

Right. Did you meet him that night or? Yes.

Was that the only time you saw him? No.

Right. You developed a relationship with him, didn't you? We saw each other - not in any other way, no.

Well, what do you mean not in any other way? He visited Kiana's house.

Yes? We went for a coffee.

Yes? And...

That's another day is it after this first day? No, that was coffee at Kiana's house.

Right, sorry. What about other days? I believe it was a week after.

What happened a week after? I went and visited him at his property.

Right. Where he was living? Yes.

What about in between? Did you see him in between? No, not during that week, no I was - had tonsillitis I believe.

You went up to the Beach Club Resort in Mooloolaba didn't you? Yes, he took me for a drive up to the thing, yes.

You went there for three days, didn't you? Er, er, well yes, I...

Yes? Yes.

Why didn't you tell us about that before? I...

Ms Branagan, why didn't you tell us about that? I'm sorry. I didn't think that my whole life was going to be scrutinised.

Ms Branagan, you have taken an oath to tell the truth, haven't you? Yes.

You were asked by your learned barrister what you did in Queensland, weren't you? Yes, I thought he meant within relation to my sister, that's what he asked.

You told us you stayed with your sister, you told us you had family events, you sat around talking and knitting and generally stayed with your sister, didn't you? I said generally, yes.

You didn't tell us, did you, about going off for three days up to a resort did you? It wasn't a resort - well yes, it was at a hotel.

It was called Beach Club Resort, wasn't it? I don't remember the name of it. I know, remember the town, it was Mooloolaba.

161. I am in no doubt that the plaintiff had no intention of informing the Court about meeting Mr Cairnduff or spending three days at a seaside hotel with him, if it had not been for the investigations which provided counsel for the defendants with this information. I am satisfied that it was the plaintiff's intention to keep this information from the Court because of concern on her part that it might damage her case. Her evidence on 23 August 2004 reflects, to my mind, very poorly on her credibility.

162. As the cross-examination continued, she conceded that she had telephoned and made the hotel reservation. She denied that she had slept with Mr Cairnduff on the first night she met him, at her niece's house. She agreed that both she and Mr Cairnduff had stayed the night at Kiana's house. She agreed that she had sex with him at the beach club resort at Mooloolaba. She said that this had occurred twice. When it was put to her that it may have been as many as ten times, her answer was "no, I don't think so." She agreed that she returned to Brisbane with him. She said that she stayed with him for a couple of days but did not move in. Asked why she had not told the Court about this when giving her evidence in chief earlier in the day her reply was that she did not think it was relevant. She subsequently said that she and Emily had stayed at Mr Cairnduff's flat for three days, and that he had brought his children down for the weekend.

163. It was put to her that she had gone out dancing to a place in Brisbane called Irish Murphy's. She denied that she had been to such a place. It was put to her that she had attended there with Mr Cairnduff and a friend of his called Gayle. She agreed that she had been to Gayle's house with Mr Cairnduff for a cup of tea but denied that they had been to a pub or been dancing.

164. She said that she had found the trip to Mooloolaba with Mr Cairnduff painful, and that she had required medication. She agreed that she had been for a short walk once down to the beach from the hotel with him, but said that he had had to help her the whole way. She had complained to him about her pain.

165. It was then put to her that while at Mooloolaba, they had driven to Noosa (a distance of about forty kilometres). She said that Steven wanted to drive to Noosa but she did not want to go. They had to stop on the way so that she could get out of the car at one point. She denied that when they stopped, they went for a walk on the beach. She might have walked twenty metres or so and certainly did not walk anything like a kilometre.

166. The plaintiff was asked about an occasion when Mr Cairnduff took her to a doctor at the West End Medical Clinic. She denied that she had asked for medication and been refused it. She said that they had sent her to a hospital where she was given painkillers by drip in the arm. She denied that she told the hospital staff that she had just flown in from Canberra. She agreed that this was not true, but she said that it was Mr Cairnduff who told them that. She denied saying that she was in so much pain, having just got off an aeroplane, that she needed drugs, and she denied becoming very angry that they would not give her morphine. She denied that she was offered the opportunity to be admitted and to stay overnight at the hospital but rejected it. She denied that she was angry with the hospital staff but agreed that she was angry with Mr Cairnduff who, she said, kept trying to hurry her up. She said that when they returned to his unit, she and Emily gathered her belongings to leave. She denied that she had thrown a suitcase down to the ground level and said that Emily had dragged the suitcases down the stairs. She said that she had dropped a pillow and hot water bottle from the balcony to the ground but denied that she was in a rage or that she had thrown suitcases down. She said that Mr Cairnduff picked up the suitcases and put them in the boot of her car (actually her sister's partner's car). She agreed that she then drove away from Mr Cairnduff's flat, to her sister's house. She denied that she drove away with a screech of tyres. She said that the driveway was steep and the rear underside of the car hit the driveway.

167. She said that she had been angry with Mr Cairnduff because he had lied to the hospital staff about her having just arrived on an aeroplane. The medication she was given at the hospital made her "quite doped out". Asked why she did not stay at the hospital overnight, she said that she was angry. When they got back to the unit, she rang her mother to tell her what had happened (it was her habit to speak to her mother by telephone at least daily). While she was talking to her mother, she said, Mr Cairnduff "pulled the phone out of the wall" and was yelling and swearing at her and her daughter. She agreed that he had remonstrated with her about her talking to her mother about him. She became aware only later that her mother had rung the police and caused them to call at Mr Cairnduff's unit later that night.

168. The plaintiff later conceded that on her second flight from Canberra to Brisbane, Mr Cairnduff picked her and her daughter up at the airport. She also agreed that she had been with him to Bribie Island to collect his son after a football game. They stayed overnight at a caravan park at Bribie Island, returning to Mr Cairnduff's flat for the rest of the weekend.

169. She agreed in cross-examination that she had had a conference with her counsel before resuming her evidence on 23 August 2004, and that she had brought him up to date with what she had been doing since she was last in Court. She agreed that she did not tell her counsel about meeting Mr Cairnduff or going to Mooloolaba or Bribie Island. She denied that she had been trying to hide anything, and said that she had simply not thought it relevant. She volunteered that Mr Cairnduff had informed her in an email about four weeks earlier that "you guys were questioning him". He told her that he had spoken "with a good friend of his in the NRMA and it was an interesting conversation."

170. Mr Cairnduff gave evidence in the defendants' case in April 2005. He gave his occupation as "sales rep". He declined to give his address in open court, and it was handed to me on a piece of paper. He did not explain the reason for his concern: it is possible that he feared repercussions from members of the plaintiff's family or her friends. He had moved from his previous address, a unit at Holland Park in Brisbane. He said that he knew the plaintiff's niece Kiana, having met her socially a couple of times, and that Kiana had invited him to her house at Springfield Lakes where he had met the plaintiff. He had arrived at about 10 pm or 10.30 pm on a week night. He was not employed at the time. Others at the house were Kiana's boyfriend and daughter. The boyfriend was already in bed when Mr Cairnduff arrived at the house, as was Kiana's daughter. Mr Cairnduff and the plaintiff and Kiana sat and watched television and talked for a while. Kiana went to bed at about midnight. The plaintiff and Mr Cairnduff talked, watched television, had a cup of tea and had "a bit of a cuddle and a kiss" over a period of about an hour and a half. It was getting late and Mr Cairnduff had a fifty-minute drive home. The plaintiff suggested that he stay the night. She invited him to stay in the spare bedroom where she was staying, in which there was a double bed. He said that they got undressed, there was more kissing and some petting, and they had sexual intercourse. He eventually went to sleep. He said that they had sex again before he left, which he did at about 5.30 am. He then volunteered that he and the plaintiff had spoken on the telephone and on the internet a few times before this meeting. He noticed nothing unusual about her and said that she seemed happy and bubbly. He did not notice anything about the plaintiff that made him think she might be in pain. He did not notice any restriction of movement. He said that the plaintiff went out the back a few times to have a cigarette. The sex was very adventurous, more than he would expect after just meeting somebody.

171. Mr Cairnduff said that he saw the plaintiff again a couple of days later. They decided to go to the Sunshine Coast for a few days. He drove to the plaintiff's sister's house and picked her up in his car. They drove to Mooloolaba, a drive of about an hour and twenty minutes. They stopped for petrol on the way. They had booked into a motel which Mr Cairnduff thought was called the Beach Motel or Beach House. They walked up eight or nine stairs to the reception desk and checked in. He said that the plaintiff had made the booking by telephone using a credit card. They took their bags to their room, had a look around the resort, had a spa and went for a walk down to the beach, a distance Mr Cairnduff estimated as at least a kilometre. They looked around the shops and selected a venue for dinner at night, and then walked along the beach for, he said, probably 600 metres. When they got back to the motel, they went up to the roof, and had another spa. The spa had three or four steps going up to it, and was quite deep to get into. The spa turned itself off automatically after about five minutes, and it was necessary to get out of the spa and go over to the switch, about four metres away, to turn it on again. He thought that he and the plaintiff stayed in the spa for about two hours, and said that they took turns getting in and out to activate the switch. After this, they went back to their room and had a rest. The plaintiff had a shower, and after a time they had sex. They then had a sleep, and decided after that to get ready for dinner. They walked to the restaurant, where they spent about an hour and a half. After dinner they walked to the beachfront, where they sat on a seat for half an hour or so, returning to the motel at about midnight.

172. The next morning Mr Cairnduff arranged some breakfast which he brought to the plaintiff. He went out to get a newspaper, and returned to find that the plaintiff was up and had had a shower. They went back to the spa where they spent more than an hour. He then went down to the motel gym and exercised for about thirty minutes. The plaintiff came down while he was there. They went back to the room and watched television. He went to a supermarket and bought some food, and they cooked a meal in the room that evening. They went to bed fairly early and had sex again before going to sleep.

173. They got up fairly early the next morning and got into the spa for a while. They went back to their room, had a shower and packed. In the afternoon they drove to Noosa, a drive of about forty minutes. They stopped on the way back at Sunrise Beach, got out and went for a walk along the beach, probably half a kilometre. They then drove back to the hotel. At no time did Mr Cairnduff notice anything which suggested that the plaintiff was in pain. She did not make any complaint of pain to him.

174. On the return trip to Brisbane, they stopped at Mr Cairnduff's ex-wife's home at Bribie Island to see his children, and then drove on to Brisbane. He took the plaintiff back to her sister's house, stayed for some time, and then took her back to Bribie Island. His son, then eight, was playing football the next day, and they decided to get a cabin at a caravan park and have his two children stay overnight, and go to the game the next day. He said that at dinner that evening, a barbecue, the plaintiff picked his son up and gave him a cuddle. He said that his son was quite a solid boy. After the football, Mr Cairnduff and the plaintiff drove back to Brisbane, to his unit. He then took the plaintiff back to her sister's house.

175. Two days later, he said, the plaintiff's sister dropped her off at his unit, where she stayed for a couple of nights. There were two bedrooms at the unit, the main bedroom with a double bed and a second bedroom with two single beds. The plaintiff slept in the double bed with Mr Cairnduff on those nights. On the first night they had a quiet night at home. On the second night, they went into Brisbane city with a friend of his, Gayle Dean, to Irish Murphy's, an Irish bar with two levels and entertainment. They collected Ms Dean, going into her flat for about half an hour, and then went in to the city where they had a few drinks at the ground-floor bar. They then went upstairs to watch the band. Mr Cairnduff saw a few people he knew there, and Ms Dean and the plaintiff danced for about half an hour.

176. Ms Dean drove the car back to her unit at Logan Central. They went in and had a cup of coffee and watched television briefly. Mr Cairnduff had been drinking and decided not to drive home. Ms Dean went to bed, and he and the plaintiff stayed in her spare room where they had sex twice. In the morning they got up, had breakfast and went back to Mr Cairnduff's unit. They stayed there most of the day, Mr Cairnduff feeling a little hung over. He had a job interview the next day, and the plaintiff ironed a shirt for him, washed up, and tidied and vacuumed the house. She also cleaned the shower, something which Mr Cairnduff conceded that he did infrequently. The plaintiff did not complain of pain or show any signs of injury. That night they watched television and went to bed. The next day she went back to her sister's house at Algester, another Brisbane suburb. The plaintiff then travelled to Canberra.

177. Mr Cairnduff did not see her again until her return to Brisbane, when he picked her up at the airport. At first he thought she must have missed the flight because everyone had disembarked and he had not seen her, but about ten minutes later she was wheeled out in a wheelchair. He said that he did not know what that was about, but they went downstairs to get the luggage and then the plaintiff got out of the wheelchair and into the car. Her daughter Emily was with her. They travelled in Mr Cairnduff's car back to his unit and took the luggage upstairs. He said that the plaintiff and her daughter were going to stay there for a while because she was not comfortable living with her sister at that point. They stayed at the flat for about four days, the plaintiff sleeping in the double bed with Mr Cairnduff. His children, then eight and ten, stayed also on a weekend which fell within that four-day period.

178. On a week night, Tuesday or Wednesday, at the end of the four-day period, the plaintiff told Mr Cairnduff that she wanted to go to hospital. She said that she was in pain and wanted some medication for her back. He said that she had been ringing doctors. He took her to Royal Brisbane Hospital, leaving Emily at the unit. She was given some drugs. He heard her asking for more drugs, and hospital staff refusing because she had had the permissible limit. She wanted to ring her mother, and argued with Mr Cairnduff because his mobile telephone battery was flat. She sat there for about an hour and a half and became very demanding towards hospital staff, who continued to refuse her further medication. Eventually she was told that she could stay the night or go home. She decided to go home. They got into the car and returned to Mr Cairnduff's unit. He told her that he did not believe she needed any more medication, and she became very annoyed, storming up the steps to the unit. He said that the plaintiff started frantically going around the unit, grabbing all her belongings and stuffing them into suitcases. He just sat on the bed and said "well if that's what you want to do, go for it". He said that she and Emily packed the suitcases and took them out to the balcony, throwing them over the railing onto the ground. She then opened the boot of the car and put them in the boot. She got the car keys from him and then drove off, he said, at high speed, screeching up the road. After that, the plaintiff's mother telephoned him. A conversation took place. At some point Mr Cairnduff "pulled the phone out of the wall". He then went to bed and slept. He was awakened by two police officers at the door. He explained the situation to them and they went away.

179. A couple of days later the plaintiff came to his unit, dropped off by her sister. She stayed for a few hours and they talked. Her sister's boyfriend or partner called in at one point. Eventually the plaintiff left, and Mr Cairnduff had not seen her since then. He said he had not spoken to her by telephone, nor had he communicated with her in any other way. He immediately retracted the last statement, saying that there had been a couple of mobile phone text messages.

180. Prior to the falling out, Mr Cairnduff said that the plaintiff had been intending to rent a house in Brisbane and had suggested that perhaps he could move in with her. She looked at some houses. Mr Cairnduff had not formed an intention, at that point, about the future of their relationship.

181. Mr Cairnduff admitted that early in 2004 he had been interviewed by police and prosecuted in relation to a number of offences on the complaint of a woman he had met through a dating agency. He agreed that he was arrested in relation to breaking into her home and taken to a police station, and that a search warrant was executed at his premises. He agreed that he had pleaded guilty to charges of sending obscene text messages to her. Other charges, which related to theft of a television set, a DVD player, a stereo, earrings and underwear were dismissed, the complainant not giving evidence. It was put to Mr Cairnduff that he had telephoned the plaintiff's mobile number many times during May 2004, up to five or six times a day, and that he had sent her more than sixty text messages. He denied the former and could not recall the latter.

182. He agreed that the plaintiff's mother had, at his request, paid for airline tickets from Brisbane to Tasmania, for Mr Cairnduff and his children, so that they could attend his brother's wedding. At the time of his association with the plaintiff he had been reliant on Newstart payments equivalent to unemployment benefits. He also agreed that the plaintiff's mother paid $405 for car rental, but denied that this had been at his request. He agreed that he had not been in a financial position to pay for the accommodation at Mooloolaba and that the plaintiff had paid for this on a credit card.

183. Mr Cairnduff was asked about a job he had had with H J Heinz Company Australia Limited in early 2004. He agreed that he had worked for Heinz at Stones Corner in Brisbane. He said that he worked there from February until April, two days a week, and resigned because he was looking for full-time work. Heinz records tendered show that Mr Cairnduff was offered the position on 2 February 2004 by letter, to start on 16 February, for twenty hours a week, and that his employment came to an end on 6 April 2004. The person who completed the form, Mr Houston, noted poor attendance and said that he would not re-employ Mr Cairnduff, whom he regarded as unsuitable for the position.

184. A printout of two email messages was tendered, one from Mr Cairnduff to the plaintiff on the morning of Thursday 3 June 2004, and the other a reply from the plaintiff the same afternoon. They are highly personal in nature and it is unnecessary for me to set them out in full. Mr Cairnduff said that he was upset and missing the plaintiff. It appears that he was attempting to revive the relationship. The plaintiff's response was at much greater length, and complained about "being abused one minute and then told that I am wonderful the next". She also complained that Mr Cairnduff had spoken in derogatory terms about her sister and her sister's friends. The plaintiff also said in the email "I can't keep up with you sexually, I can't keep up with going out all the time". The plaintiff went on to say that she "would prefer to be friends and see where we go from there". She said that she had had "a big fight with her family over everything", and had taken legal action to protect herself from them. In relation to money, the plaintiff said "I have paid Mum back so you don't have to worry about that. Mum and Kim have drained my bank account. I have nothing left either." She concluded that she had cut ties with her family and that she cared about him.

185. Shown a document he had signed on 23 August 2004 relating to the termination of his tenancy at Holland Park, Mr Cairnduff agreed that he had given the name of Arthur Reilly of NRMA as his boss, with Mr Reilly's mobile telephone number. He conceded that Mr Reilly was not his boss and that the representation was untrue. He said that Mr Reilly was with NRMA, he thought as an investigator, and had given permission for the use of his name as a referee. He identified Mr Reilly, who was sitting in the back of the court at the time. Mr Cairnduff also said at another point in his evidence that he had not approached NRMA and offered to provide information about the plaintiff's claim, but rather that he had been approached by NRMA. Counsel for the defendants did not call Mr Reilly, and I infer that his evidence on these issues, which go to Mr Cairnduff's credit, would not have assisted the defendants' case.

186. Mr Cairnduff was re-examined about the lengthy email from the plaintiff. He recalled sending the first email from Tasmania but when asked whether he recalled receiving the reply, he said "not really, no". He went on to say "... I can't remember getting - I never seen a reply."

187. Telstra records were tendered in the course of cross-examination of Mr Cairnduff, which showed many calls from Mr Cairnduff's mobile telephone to the plaintiff's mobile telephone during May-June 2004. The records do not distinguish between telephone calls and text messages. The first seems to have been on 12 May 2004, and the last on 12 June 2004.

188. The Telstra records produced on subpoena also included records in relation to a fixed telephone line, a number, according to Telstra, in the name of Mr G Baker of 27 Victor Street, Holland Park. Mr Cairnduff's unit was unit 3 at 27 Victor Street. He denied that he had a line in the name of Baker. A printout of calls between 17 June 2004 and 1 August 2004 shows, out of innumerable calls, one call to the plaintiff's mobile number, on 22 June for twenty-six minutes. While living at the same address, Mr Cairnduff had given to the police, in an unrelated matter, a different home telephone number, but I think in the circumstances that I must find that the number identified by Telstra as in the name of Baker was a fixed line to Mr Cairnduff's unit. The evidence is insufficient to enable me to find that Mr Cairnduff gave a false name to Telstra in relation to that service for some nefarious purpose. There was no-one called from Telstra to give evidence about it and there may well have been some innocent explanation, such as a mistake made by Telstra staff.

189. Counsel for the defendants next called Gayle Dean. She gave her occupation as short order cook. Like Mr Cairnduff, she did not wish to give her address in open court, and it was given to the Court in writing. She had known Mr Cairnduff for three or four years as a friend. She met the plaintiff when Mr Cairnduff brought her to her home, a two-bedroom terrace with a courtyard. The plaintiff came to her house on two occasions. The first was late one afternoon. She made the plaintiff a cup of tea. The plaintiff telephoned her mother and introduced her mother to Ms Dean over the telephone. The plaintiff asked whether she could use the bathroom, which was upstairs, and did so. Mr Cairnduff and the plaintiff then left to go to her sister's home for dinner. In the course of that visit, Ms Dean did not notice that the plaintiff was in any pain. The plaintiff made no complaint of pain and said nothing about her car accident. The plaintiff and Mr Cairnduff were at her house for something less than an hour.

190. She saw them again a couple of days later, she thought on a Friday night. Mr Cairnduff contacted her and asked whether she would join him and the plaintiff for a visit to an Irish pub in Brisbane city, and whether she would mind driving so that he and the plaintiff could drink. She agreed, and they went to a pub which she thought was called Irish Murphy's, in the city. They had a drink at the bar downstairs, and spent about ten minutes there. They went upstairs where there was music playing. Her uncertain recollection was that the plaintiff was wearing a pink dress and shoes with a little heel rather than a full stiletto. She and the plaintiff went onto the dance floor and jigged around. They danced apart rather than together, and the plaintiff moved her body slightly. They stayed at the pub for an hour to an hour and a half in all, but danced for just one song. Mr Cairnduff at this time was at a chair at the bar, watching. They left and returned to Ms Dean's house where they stayed the night. Ms Dean offered them her bed, and she slept downstairs on the couch. She heard heavy breathing and thudding noises from the bedroom upstairs for fifteen minutes to half an hour, which she found embarrassing. She was unhappy about this because she had asked Mr Cairnduff not to have sex in her bed, and it sounded as though they were having sex. She saw them briefly in the morning, and they left. She saw no sign on that occasion either that the plaintiff was in any pain or had any restrictions. She had not seen the plaintiff again until the day she gave her evidence.

191. A neighbour of Mr Cairnduff's at Holland Park, Joan Pendrick, was called in the defendants' case. She had met the plaintiff at the apartment block, and she saw her coming and going on a few occasions. She saw her washing the car one day in the driveway. The plaintiff told her that she had a bad back, but Ms Pendrick saw no evidence of this.

192. She recalled a particular night when Mr Cairnduff knocked on the door. He said that the plaintiff was in pain and he was taking her to hospital, and he asked her to keep an eye on the plaintiff's daughter Emily. He had given Emily Ms Pendrick's telephone number, to ring her if necessary. Much later, perhaps 1 am or 1.30 am, she heard the car return. She heard some commotion about half an hour later, voices, mainly female, and a sound "like things being thrown over the verandah". She then heard a suitcase on wheels being bumped down the steps, followed by a car taking off at a very fast pace.

193. The plaintiff's mother was recalled in reply. Printouts of two short emails were tendered, which she said she had seen on the screen of her daughter's computer. These were dated 20 and 21 July 2004. They bear the plaintiff's email address as receiver, and a different address for the sender, in the name of Shaun Cain. I am satisfied that these were sent by Mr Cairnduff to the plaintiff on the dates they bear. The first reads "Talking to a friend who works at NRMA the other day - very interesting conversation - hadn't seen them for a long time - hope you're well ha ha." The second reads "Hi don't know what's happening here I have had investigators ringing me and asking about you?? Don't know what it's all about."

194. The plaintiff's mother, Mrs Shifflett, said that her daughter told her that she had met a man named Steve Cairnduff who had offered to take her away for the weekend. She asked her daughter whether she could speak to Mr Cairnduff. She said that she did so, and told him that the plaintiff could not do what a normal person does. She could not walk too far at a time and could not do a number of things for herself. Mr Cairnduff told her that he would help her if he had to, and said that she was beautiful and he loved her. Mrs Shifflett said that she spoke to him about sex, saying that the plaintiff could not do what normal people did, and he assured her "that there would be no sexual things whatsoever". This conversation was put to Mr Cairnduff in cross-examination, and he denied that it had taken place. On 16 May, Mrs Shifflett had a conversation with Mr Cairnduff. He told her that he was going to Tasmania for his brother's wedding and would like to take his children, and asked whether she would lend him the money for the airfares. He said that he would pay her back out of his Centrelink payments over the next two pays. She agreed to this, and paid the amount, $423, by Mastercard, for him. Her evidence was that he had never paid her any of this money back, and he did not challenge this. He and his children travelled to Hobart on 1 June 2004 using the tickets so obtained.

195. On 19 May 2004, in another conversation with Mr Cairnduff, he told her that his car was old and had broken down, with smoke pouring out. He said that he needed a car to get to job interviews and to collect his children, and asked whether she could provide funds to enable him to rent a car. It seems that there was no firm arrangement as to whether this was a gift or a loan, but Mrs Shifflett said that she expected to be repaid. Repayment was never forthcoming. She paid $403 on her credit card for the car hire, but thought that this included a deposit which she got back when the car was returned.

196. On a later occasion, he spoke to her and asked for money for petrol for the plaintiff and himself. She went to the bank in her work lunch break and paid $300 to the credit of his account. This amount had never been repaid.

197. An amount of $266.21 was paid to Queensland Travel Centre on 10 May 2004 for accommodation at the Beach House Motel at Mooloolaba. This was paid by the plaintiff's sister, Kim Alder, on her Coles Myer Mastercard.

198. Mrs Shifflett denied ever having any conversation with Gayle Dean. She agreed that at one point her daughter threatened to take legal action against her but said that no action was taken. She agreed that she had taken money out of her daughter's bank account and put it into the account of her other daughter Kim Alder. She was doing this so that there would be funds available for the plaintiff in Queensland. She agreed that she had provided money to Mr Cairnduff in amounts approaching $1,000. She said that this was because he asked for it, and the plaintiff was with him at the time. She was in effect helping them out as a couple. Her daughter did not benefit from the trip to Tasmania, but she felt sorry for Mr Cairnduff and his children.

199. I have previously referred to the evidence of the plaintiff's niece Kiana Alder. She gave her evidence in March 2005. She met Mr Cairnduff at a nightclub at Logan, a southern suburb of Brisbane. He was accompanied by Ms Dean, whom she also met for the first time. She struck up a friendship with him, keeping in contact through telephone text messages and email. She invited Mr Cairnduff to her house while the plaintiff was staying with her in mid-2004. She lived at the house with her partner Charles Stephenson and her daughter Mia. She recalled that Mr Cairnduff arrived at her house at about 8.30 or 9 pm wearing a suit. At some point she said that it was too late for him to go home and invited him to stay. She said that he was welcome to stay on the couch. She went to bed at about ten o'clock. At about 2 am she got up to get a bottle for her daughter, then about eighteen months old. She went to the kitchen. She noticed Mr Cairnduff sleeping alone on the couch. She said that the plaintiff was in the spare room.

200. She got up again at about 4.30 am to get another bottle for her daughter. She saw that Mr Cairnduff was awake watching television. He turned the television set off and apologised for waking her. She reassured him that he had not done so. No-one else was present.

201. The next time she got up was at 6.30 am. Mr Cairnduff was in the kitchen making himself a cup of coffee. She saw him again at about 7.30 am, and said that he was wearing clothes of hers which he must have got from the laundry. They had breakfast, and at some point Mr Cairnduff changed back into his suit and left the house at about 10.30 or 11.00 am. She was adamant that he did not have a shower, contrary to his evidence.

202. She remembered Mr Cairnduff visiting her house again the next day and staying for a couple of hours. She did not see him again, but recalled a telephone conversation which must have taken place shortly after the plaintiff and Mr Cairnduff had their falling out. He told her that they had had an argument and that their relationship was over, and he mentioned that her grandmother (Ms Shifflett) had rung the police. She thought that she might have told him to leave her family alone. She remembered receiving from him subsequently an unpleasant email or text message. She received a few of these in similar vein.

203. She agreed in cross-examination that she had initially formed the view that Mr Cairnduff and the plaintiff were likely to be compatible and might be able to form a friendship or relationship. She introduced them with that in view. She agreed that on the night he came over, he seemed to be getting on well with the plaintiff and that she had no concerns about the plaintiff's physical condition. She conceded that she could not be certain that there were not two people on the couch on the first occasion when she passed through the living room in the middle of the night, but she said that she looked into the spare room and saw that the plaintiff was lying on the bed. She was also certain that there could not have been two people lying on the bed at that time. It was not possible in her view for Mr Cairnduff to have been in the spare room with her aunt.

204. Ultimately she agreed that her memory of these events almost a year earlier was, as counsel for the defendants put to her, "basically subject to remembering some things and not remembering other things." Ms Alder said "... throughout this whole thing, I was more concentrated on my family than at anything at hand, so whatever I remember I will tell you, but anything else has faded."

205. The plaintiff's daughter Emily, then aged 12, gave evidence in August 2004. She said that she had flown to Queensland with her mother in May 2004. They were met at the airport by Mr Cairnduff. After retrieving their luggage, he drove them to his unit. She and Mr Cairnduff got the suitcases up the external stairs to the front door of the unit. They stayed there for a few days. She slept on a folding bed in the living room. At some point his children, a boy and a girl aged about nine and ten, stayed in the spare bedroom. Emily watched television much of the time, while her mother made telephone calls in an endeavour to find a house to rent. She recalled having a takeaway Chinese meal delivered, and on another occasion walking to the Chinese restaurant for lunch, about half a block away. Mr Cairnduff did some cooking, and rented DVDs for the group to watch. On another occasion they had takeaway McDonalds for dinner. On one day they went on a car trip for about an hour to collect Mr Cairnduff's children.

206. She recalled her mother complaining that her back was painful and that she needed to go to hospital. Emily stayed at the unit while Mr Cairnduff took the plaintiff to hospital by car. They were away, she thought, for four or five hours, returning at about 1.30 am. When they got back, Emily was on the telephone to her grandmother, Mrs Shifflett. She opened the front door and found her mother and Mr Cairnduff arguing and shouting at each other. Her mother told her that they were leaving. She said that Mr Cairnduff grabbed her mother and pulled her by the arm, telling her that it was not his fault that she was sick and that he was sick of her being sick. The plaintiff started crying. Mrs Shifflett told Emily that she wanted to speak to her mother, and Emily gave her the cordless telephone for that purpose. She remembered her mother talking on the telephone and packing her suitcase at the same time. At one point Mr Cairnduff unplugged the telephone cord from the wall, telling the plaintiff to use her own telephone. Emily said that she was frightened. She packed and took the suitcases down the stairs, dragging them down one at a time on their wheels. The plaintiff meanwhile got some of her belongings from the bathroom and dropped them over the balcony to Emily, and did likewise with her three pillows. Eventually Mr Cairnduff packed the suitcases into the car. He went back upstairs. The plaintiff realised that she had forgotten a couple of items of belongings, and went back upstairs but Mr Cairnduff slammed the door in her face and locked it. She and Emily got into the car and she drove back to her sister Kim's house, getting lost twice on the way and having to ask for directions at service stations.

207. It was put to Emily in cross-examination that her mother's evidence had been that Emily had slept in a bedroom. She said that she was now not sure about this and might have been mistaken in her earlier evidence, but what she had said was what she remembered. (It seems to me not unlikely that Emily slept in the spare bedroom during the early period of the stay at Mr Cairnduff's unit, but moved to the folding bed in the living room to make way for his children when they came to visit). She was certain that the suitcases were not thrown over the balcony, and that she manoeuvred them down the stairs. She had no recollection of staying at a caravan park at Bribie Island or of watching Mr Cairnduff's son playing football.

Assessment of the lay witnesses and analysis of their evidence

208. Senior counsel for the defendants submitted that much of the lay evidence given in the plaintiff's case was unreliable and that some of the lay witnesses deliberately gave false evidence. Senior counsel for the plaintiff made similar submissions in relation to two, at least, of the three lay witnesses called in the defendants' case. It is necessary for me to deal with the witnesses individually and to explain why I accept or reject, in whole or in part, the evidence of each witness. The key witness was, of course, the plaintiff herself: I shall come to her evidence last. An assessment of her evidence is necessarily much influenced by whether I accept or reject the evidence of other witnesses which supports or contradicts it as to particular matters of fact.

209. The plaintiff's mother, Anne Shifflett, is very protective of the plaintiff and, as one might expect, she emphasised in her evidence the severity of the plaintiff's disabilities by comparison with her condition before the earlier car accident. I certainly did not form the view that Mrs Shifflett deliberately gave false evidence, but I did not find her a particularly reliable witness as to past events, dates or even the order of events.

210. The plaintiff's sister, Kim Alder, gave "before and after" evidence during the early part of the hearing. She had seen very little of the plaintiff in recent years leading up to the first accident and not a great deal of her since. She conceded that her memory was less than perfect. Whilst I accept that she did her best to give her evidence honestly, I did not find it of much assistance.

211. Her daughter Kiana had lived with the plaintiff for a year or two before the accident but did not remember much about the plaintiff's medical condition during that year and conceded that she was then a typical teenager and not around a great deal. Her "before and after" evidence was for that reason not particularly helpful. She did not see much of the plaintiff after the accident until the events of mid-2004 when she introduced the plaintiff to Mr Cairnduff. There were some discrepancies as to what happened on the night the plaintiff met Mr Cairnduff at her house, between her evidence, that of the plaintiff and that of Mr Cairnduff, but these were generally as to matters of detail. I am inclined to accept her evidence that when she got up in the middle of the night a couple of times, the plaintiff was asleep in the spare room and Mr Cairnduff was in the living room, which would support the plaintiff's evidence that she and Mr Cairnduff did not sleep together that night. Generally I formed the view that Kiana's evidence was quite reliable, and not tainted by any conscious or subconscious motivation to embellish the plaintiff's case.

212. The plaintiff's daughter Emily gave evidence only as to the events in Queensland in mid-2004. She was not examined or cross-examined as to the plaintiff's condition before the accidents or between the accidents and the visit to Queensland. She was only twelve years old when she gave her evidence and is clearly very close to her mother. It is to be expected that she would give evidence favourable to her mother's case rather than evidence which might be damaging to it, but notwithstanding this I thought that she gave her evidence truthfully. She was giving evidence about events within the previous three months and generally as to factual matters I accept it.

213. I deal next with the evidence of the plaintiff's personal friends. Ms Stone gave "before and after" evidence. She had seen very little of the plaintiff in the years leading up to the accidents, and not a great deal since. Whilst I have no doubt that she was an honest witness, her memory was a little vague and I did not find her evidence particularly helpful.

214. Mr and Mrs Whittingham had become friendly with the plaintiff through their children, and the plaintiff stayed with them for a month in late 2000. They proved to be selfless and genuine friends to her at a time of need. Their evidence about the plaintiff before the car accidents was not of much assistance as they had not seen her particularly frequently and had been unaware of her health problems during 1999. I accept their evidence as to what they observed of the plaintiff's condition during the time she stayed with them, and generally as to the events of that period.

215. I have previously mentioned the witnesses who came to know the plaintiff, directly or indirectly, through her work at ATSIC. Mr Sterecker made some mistakes as to factual matters and I had the impression that his memory of the events he was giving evidence about was vague. His cousin Mr Isselmann was similarly vague about events, and I did not find the evidence of either of them of much help. I accept the evidence of Ms Fahey who worked at ATSIC for a time coinciding with the plaintiff's attempted return to work.

216. This brings me to the men with whom the plaintiff lived in a domestic relationship. Mr Carbone's evidence was tainted by his gross exaggeration as to the hours he spent attending to the plaintiff's needs and to housework, which causes me to have considerable doubt as to the reliability of his evidence about the plaintiff's physical and psychological condition before the first car accident. He was vague about events prior to the accident. He could not remember specifically when the plaintiff had moved in with him, or when she started at ATSIC. He left me with the impression that he had not taken a great deal of interest in what was happening in the plaintiff's life, and that his concern was to live a comfortable home life, his needs being looked after by the plaintiff and his mother. I suspect he became rather resentful that the plaintiff's injuries had caused such a change to his home life, and his eventual action in effectively evicting the plaintiff caused me to doubt the extent of his commitment to the relationship and eventual marriage to the plaintiff. Where Mr Carbone's evidence departed from that of other witnesses, I was not comfortable that I should accept it, having regard to his tendency to exaggeration and his unreliable memory.

217. I generally accepted the evidence of the plaintiff's next domestic partner, Mr Colin Steele, who lived with the plaintiff for a lengthy period between the car accidents and the commencement of the hearing. I thought that his estimates of time spent on care and housework were somewhat inflated, but it should be acknowledged that the court process tends to place witnesses in a position where they are expected to be reasonably precise about matters which by their nature do not lend themselves to precision. As a matter of common sense the tasks performed by a carer and the requirements of housework vary from day to day, and tend to be interspersed with other non-compensable activities. I accept that Mr Steele took his role as a carer seriously, to the extent of perhaps being over-solicitous about the plaintiff's welfare. During the period when he was unemployed and receiving a carer's pension, no doubt he had little else to do. I accept the submission of counsel for the defendants that damages for the care component should be calculated by reference to what would have been a reasonable amount of time to carry out the tasks made necessary by the plaintiff's injuries. I am persuaded that in this case there was a considerable degree of over-servicing, particularly by the plaintiff's mother who I thought was unusually protective of her daughter and obsessive about housework and cleanliness.

218. In relation to Mr Steele, I take the point made by counsel for the defendants that it is highly unlikely that he would have moved in with the plaintiff intending the relationship to be a permanent one, if she had presented in early 2001 as being as severely disabled as she claims to have been and as she presented to the Court while giving her evidence. I am fortified in this finding by the fact that, during the course of their relationship, the plaintiff and Mr Steele took on a foster child for a period of time. I find it hard to accept that the authorities would have approved the plaintiff as a foster mother if she had presented in that fashion, and I find it equally hard to accept that either the plaintiff or Mr Steele would have thought it feasible to take on a foster child, in itself a commendable initiative, if the plaintiff had been as severely disabled as she claims.

219. This brings me to the plaintiff's next relationship, that with Mr Cairnduff. His credibility was severely undermined in cross-examination, to the extent where I would be reluctant to accept his evidence about any issue in the absence of corroboration. Having said that, it seems to me inherently unlikely, as with Mr Steele, that he would have been attracted to the plaintiff, and to the concept of a long-term relationship with her, if her presentation had been similar to that in the witness box and if she had been as disabled as she claims to have been. His motivation in possibly informing on the plaintiff to the NRMA, or at the very least in cooperating with the investigators and agreeing to give evidence, did not emerge at the hearing. It seems to me from the evidence about his dealings with the woman he met through the dating agency, and from the number of his telephone calls or messages to the plaintiff, and the content of those that were in evidence, that he is a man capable of being vindictive when events go against him. Perhaps he was motivated by vindictiveness towards the plaintiff. It is I suppose possible that he hoped for some reward from the insurer. I hasten to add that there is no suggestion that any reward was offered to him or that NRMA would contemplate such an arrangement. At all events, I can accept Mr Cairnduff's evidence only where it generally accords with that of other witnesses. This gives rise to potential difficulties about events where the only other evidence comes from a witness whose credibility is also in question, a topic to which I shall return. I can go so far as to say that I am satisfied that if the plaintiff's behaviour, when she was under observation by Mr Cairnduff, had been in accordance with her own evidence, there could have been no basis for him to think that he was in possession of any information which might have been of any interest to the insurer.

220. Next I come to the evidence of the other Queensland witnesses, Ms Pendrick and Ms Dean. There was no serious challenge to Ms Pendrick's credibility, and I unreservedly accept her as a witness of truth. Specifically I accept her evidence that she observed the plaintiff engaged in some not especially vigorous activities, and that she saw nothing to suggest that the plaintiff was disabled or in pain.

221. I accept Ms Dean as an independent witness, and I generally accept her evidence in preference to that of the plaintiff about the evening at Irish Murphy's pub in the city in Brisbane. I also accept her evidence about the plaintiff and Mr Cairnduff staying with her overnight and sleeping in her bed, and about the noises she heard from above, consistent with sexual activity. Although she was a friend of Mr Cairnduff, no reason has been put forward as to why she might perjure herself to assist him by fabricating the events of an entire evening and night which did not happen at all. Nor was this put to her by senior counsel for the plaintiff in cross-examination, although the plaintiff's version of events was put to her as fairness would require. I observed nothing in her demeanour which might suggest that she was being untruthful. Her evidence was internally consistent and credible, and I generally accept it.

222. This leaves the plaintiff's evidence to be considered. I had the opportunity to observe the plaintiff in the witness box. She spent almost four full days giving evidence, spread over a period of four months. I also had the opportunity to observe her physical presentation in the back of the court on many other days as the hearing continued. Her selective and indeed untruthful evidence about her time in Queensland, when the hearing resumed in August 2004, severely undermined her credibility, leading me more readily to suspect that she had been deliberately selective in her evidence about her pre-accident history, and in the history she provided to the various doctors who treated or reported about her. As I have explained when considering the evidence of Mr Steele and Mr Cairnduff, I have no doubt that she embellished her presentation in court to improve her case. One piece of evidence given by Mr Cairnduff, about which he was not cross-examined and which I accept, was the evidence about her arrival by air in Brisbane, when she came off the plane last in a wheelchair which she discarded in the car park and did not use or need again. This is consistent with her presenting in a similar way to her presentation in court when she was in public in a situation where she suspected that she might be under observation by investigators. It is also consistent with her physical presentation to the various doctors.

223. This does not mean that she was not disabled or in pain at all, or that she was an out-and-out malingerer. Her presentation to Mr Cairnduff and, perhaps to a lesser extent, to Mr Steele in the early stages of their relationship, can be explained in part by her wish for the relationship to develop. It is natural to assume that she would have gone to considerable trouble to present in those circumstances as normal and not as disabled. That is to say, it would not be surprising if she had gone a little far in the opposite direction at those times to mask any pain or disability.

224. With her background of early sexual abuse within her own family, the plaintiff was from an early age vulnerable to anxiety and depression. This is reflected in the social worker's note of January 1997 in the hospital records. Her history of cancer resulting in her hysterectomy, and of her then husband's cancer, followed later by her abdominal symptoms and weight fluctuation of 1999, culminating in further surgery in September of that year, must have increased her vulnerability to psychological disorder. At the same time, it must be borne in mind that the plaintiff had worked from November 1999 until the first car accident, without the need for any significant time off, in a job she enjoyed and which, she thought, offered her a bright future with the prospect of some promotion. I accept that the motor accident of August 2000 was a causative factor in the development of the psychological problems which precipitated her admission to Calvary Hospital for three weeks at the end of August 2000, though I repeat that I infer that the evidence of Dr Fridgant and Dr Morice under whose care she was admitted would not have assisted her case.

225. I accept that the plaintiff injured her neck and low back in the motor accident of April 2000. I accept that initially the neck pain was serious and overwhelmed the back pain, which became much more pronounced as the neck resolved. I also accept that by reason of her personality and pre-existing vulnerability, the effect of the neck and, more significantly, the low back pain upon the plaintiff was much greater than it might have been upon a person with a more robust personality and psyche. It seems to me that part of the apparent exaggeration and embellishment was not conscious or related to the damages claim but was a subconscious reaction by the plaintiff as an individual to her plight, and hence, from a legal perspective, foreseeable by the defendants and compensable.

226. At the same time, I am also satisfied that there has been a considerable degree of conscious exaggeration and embellishment motivated by a desire to maximise her damages and perhaps also to justify her position as an invalid, unable to undertake numerous tasks and requiring care and help from members of her family.

227. By way of example of embellishment for the purposes of the case, the plaintiff was assessed by two occupational therapists, Louise Cadby for her own solicitors in May 2004 and Lesley Radbron for the defendants' solicitors in August 2004. She presented to both as severely disabled, and both prepared reports which if accepted would justify vast awards for past and future care and for the cost of occupational therapy equipment. Indeed, the plaintiff's solicitors qualified a chartered accountant of 28 years experience, Vincent Siow, to prepare a report based on Ms Cadby's opinion. Mr Siow arrived at the figures claimed in the amended statement of particulars of June 2004, amounting to more than $600,000 for the past and future Griffiths v Kerkemeyer components of the claim, figures of the order of which one is more accustomed to seeing in paraplegic claims. The presentation by the plaintiff to the occupational therapists, which they accepted and on which they based their figures, was completely at odds with her behaviour during her visit to Queensland at about the same time.

228. In passing, I make the point that it is not obvious why the expertise of a chartered accountant was needed to make the calculations set out in Mr Siow's report, which appear to me to follow as a matter of simple mathematics from Ms Cadby's report. Although no objection was taken to the tender of Mr Siow's report, it does seem to me that the qualification of expert witnesses in circumstances of this kind should be discouraged as adding unnecessary expense to the preparation and presentation of a claim for damages for personal injury.

229. As I said earlier, I have some difficulty in arriving at findings of fact about the plaintiff's activities in Queensland, where the only persons present during those activities were the plaintiff and Mr Cairnduff. As I have explained, the credibility of both witnesses has been undermined. There are significant discrepancies between them, generally as to matters of degree: for example, as to the number of occasions when they had sexual intercourse and as to the vigour of those encounters; and as to their activities during the trip to Mooloolaba and Noosa, including how far the plaintiff walked along the beach and whether she needed any help in doing so. Having decided that the evidence of both these witnesses is unreliable, it seems to me that the truth probably lies somewhere in the middle. I think it likely that the plaintiff and Mr Cairnduff had intercourse more than twice but on fewer occasions than the ten times deposed to by Mr Cairnduff; and that the vigour of these encounters was rather less than painted by Mr Cairnduff but considerably greater than the passivity conceded by the plaintiff. I also think it likely that the walks along the beach were much more extensive than the plaintiff says, but that Mr Cairnduff probably exaggerated their length.

Analysis of the medical evidence

230. I have set out my reasons for finding that the plaintiff's presentation to most, probably all, of the medical and other health practitioners she has seen since the first motor accident has been exaggerated and embellished. The treating practitioners have generally accepted her at face value, as one would expect. Additionally, most took and accepted a history which included no reference to the plaintiff's pre-accident psychological problems or her continuing problems following her abdominal surgery in September 1999. Their evidence must be evaluated against this background.

231. I shall deal first with the evidence as to the plaintiff's physical injuries and disabilities. To recapitulate, an MRI scan within a week or so of the accident revealed annular tears at C5-6 and C6-7, which Dr Chandran thought were insufficient to explain the plaintiff's symptoms. Dr Foo took the view that the plaintiff had suffered significant musculo-ligamentous soft tissue injuries in and around the neck, and I accept that opinion.

232. I also accept the opinion expressed by Dr Hopkins, an orthopaedic surgeon who saw the plaintiff for Comcare in February 2001, that the plaintiff had suffered relatively minor injuries to the neck and low back, but that she had developed a chronic pain syndrome.

233. This seems consistent with the opinion of Dr White, neurologist, who saw the plaintiff in June 2002 on referral from her solicitors. Dr White thought that the plaintiff would be left with some residual low back pain, and that at that time she was unfit to work or live a normal life. He hoped that one day she might return to clerical work.

234. Dr Pell saw the plaintiff in mid-2002 and also thought that she had developed a chronic pain syndrome. The prognosis was guarded. I accept that his opinion must have been to some extent influenced by the plaintiff's embellished presentation, and the same must apply to Dr White.

235. Dr Le Leu saw the plaintiff on three occasions between September 2001 and August 2003. Whilst he was no doubt also affected by the plaintiff's exaggerated presentation to some degree, I generally accept his opinion that the plaintiff had some pain flowing from a low back disc injury, not as serious as it appeared, but magnified by the plaintiff's depression and anxiety. Dr Le Leu thought that physically the plaintiff should make a complete recovery from the neck and low back injuries though he was less optimistic about the prognosis for her depression. He thought that in the long term she should be able to get back to work in a clerical capacity.

236. This opinion generally accords with that formed by Dr Cohen, a treating physician and rheumatologist who saw the plaintiff in late 2002.

237. Dr Eaton, an occupational physician who saw the plaintiff in late 2003, was a little less optimistic about the likelihood that the plaintiff would get back to work, and thought that at best she could look forward to working part-time. However, I suspect that Dr Eaton was influenced to a greater degree by her physical appearance and presentation.

238. The general practitioners who gave evidence, Dr Foo, Dr Lin and Dr Dunn were generally more accepting of the plaintiff and more pessimistic about her future. It seems to me that each was influenced to a marked degree by the plaintiff's complaints which, as I have said, were exaggerated and embellished. I prefer the opinion evidence of the specialists. I have already mentioned that I found aspects of Dr Gavaghan's oral evidence unconvincing. As I have said, I accept an opinion he expressed in a letter of May 2000 that the plaintiff's abdominal symptoms and to some degree her depression and anxiety were already apparent prior to the first car accident.

239. The one specialist who was out on his own was Dr Spira, the Sydney neurologist who saw the plaintiff in late 2003 on instructions from the solicitors for the defendants. Dr Spira thought that the plaintiff was faking her straight leg raising test and the pain she said it produced. He saw her physical presentation as grossly exaggerated and dramatised. She should in his view have recovered from her physical injuries within weeks of each accident. He attributed her failure to recover to a grossly overvalued sense of injury, and the adoption of a sick role with dependency on her then partner and family. He disagreed with the radiological interpretation of an MRI scan of the plaintiff's lumbar spine, and thought that there was no evidence of nerve root irritation. He rejected the diagnosis of chronic pain syndrome as a non-scientific explanation adopted by some doctors when they were unable to find a physical cause for pain. He regarded this as unprofessional and inconsistent with the duty of a treating doctor to continue looking for the cause of the pain and treating that cause.

240. I am able to accept Dr Spira's opinion about chronic pain syndrome and at the same time to accept the opinion of those specialists who believe that this label applies to the plaintiff. It is consistent with the proposition that the plaintiff has a degree of genuine pain and that medical science is at present unable to identify the cause of it. I can also accept that Dr Spira correctly detected a measure of exaggeration and embellishment in the plaintiff's presentation. The difference is one of degree. I am satisfied that the plaintiff genuinely suffers from pain in the low back which is at times moderately disabling. I am satisfied that at other times she is much less disabled than she pretends to be. Insofar as Dr Spira came to the view that the plaintiff was entirely feigning her pain, I do not accept that view. It is inconsistent with the preponderance of other specialist opinion. I am not persuaded that the plaintiff faked the straight-leg-raising tests, and incline more to the explanation that she was tensed and guarding against pain she thought would afflict her as the angle of the leg raise was increased.

241. There was a suggestion during cross-examination of some of the medical witnesses that the plaintiff may have become addicted to morphine, an ingredient in some of her painkilling medication. No doctor positively expressed the view that she had and her counsel did not adopt it as part of her case. It is unnecessary for me to make any finding about it, although it does seem to me that some of the plaintiff's behaviour, for example at the hospital in Brisbane on the night of her altercation with Mr Cairnduff, is consistent with the hypothesis. It is enough for me to say that if some degree of addiction did develop, it did so only because the plaintiff was prescribed morphine-based medication as a result of the injuries she suffered in the car accidents. To that extent any addiction was indirectly caused by the negligence of the defendants and was reasonably foreseeable.

242. I turn to deal with the psychological and psychiatric evidence. As I have said previously, I found Dr Mahoney to be lacking in objectivity in relation to both the level of the plaintiff's psychological symptoms and their causation. It seemed to me that she had allowed herself to become too close to the plaintiff to be able to respond objectively to suggestions put in cross-examination which were inconsistent with the history the plaintiff had given her, and with the plaintiff's physical presentation. It is probably in the nature of things that a treating psychologist becomes personally close to a patient and accepts the patient without reservation or suspicion of exaggeration.

243. The opinions expressed by Dr Mickelburgh and Dr Snowdon, psychiatrists who saw the plaintiff at the request of Comcare in 2001, suffer from their lack of any information about the plaintiff's pre-accident psychological symptoms. Nevertheless I accept their opinions that the plaintiff was, when they saw her, suffering from a depressive condition and from post-traumatic stress disorder warranting psychiatric treatment. Both Dr Mickelburgh and Dr Snowdon, and also Dr Duke who saw the plaintiff twice, in late 2001 and late 2002, took the view that the plaintiff's psychological prognosis was dependent on the extent to which she recovered in the future from her physical injuries. Dr Synnot, another psychiatrist who saw the plaintiff in mid-2003 at the request of the solicitors for the defendants, also saw her psychological prognosis as connected to her physical prognosis, but thought that the former was reasonably good in the long term. In this regard I should say that I accept the findings which emerged from the tests conducted by Dr Scarrabelotti, neuropsychologist, at the end of 2003, that the plaintiff was suffering from a moderate to severe level of depression and anxiety and should continue with psychological counselling. The tests showed no evidence of exaggeration of the psychological symptoms.

244. In summary, I find that at the time of the first car accident in April 2000, the plaintiff had made a generally good recovery following her abdominal surgery the previous September, such that she had been able to take up employment with ATSIC and cope with the responsibilities of her position without needing significant time off, though from time to time she continued to suffer from abdominal pain, sometimes accompanied by nausea. The evidence does not enable me to make a finding as to whether these symptoms would have continued indefinitely, though I note that the plaintiff saw her general practitioner about them during the month before the accident, about six months after the surgery.

245. I also find that the plaintiff continued to suffer to some extent from the various psychological symptoms of which she complained in January 1997, as recorded in the note made by the social worker Mr Milne at Calvary Hospital during that month. These physical and psychological symptoms were not such as to prevent the plaintiff from working or attending to the demands of her life generally, but must have placed her in a position of abnormal vulnerability to future trauma. For present purposes, this has both a positive and a negative impact on the assessment of the plaintiff's damages. Positively for the quantum of the plaintiff's damages, her physical and psychological vulnerability magnified the effect of the injuries she suffered in the car accidents: that is to say, their impact upon her was much greater than would have been the case in respect of the average person. The negative aspect is that, had the accidents not occurred, the plaintiff would have remained at increased vulnerability to trauma from other causes, and the after-effects of that trauma: hence an award of damages in her favour would be less than an award in favour of the average person who suffered the same injuries, because of the possibility that she might suffer some other traumatic event, physically or psychologically, which would have a much greater impact upon the plaintiff than on the average person.

246. None of the doctors seems to have made a great deal of the impact on the plaintiff of what was described during the hearing as the improper conduct of the massage therapist in May 2001. It was clearly of enough significance to the plaintiff to warrant her complaining about it to the Health Complaints Commissioner, and seeking the assistance of a criminal victims' association. It was also important enough, in the assessment of Dr Mahoney, to warrant a course of psychological counselling. As I said earlier, it is highly unfortunate that Comcare refused to pay for Dr Mahoney's treatment of the plaintiff insofar as it related to the assault by the massage therapist. This placed Dr Mahoney in a difficult and artificial position.

247. Counsel for the defendants submits that I should find the assault by the massage therapist a novus actus interveniens, for the consequences of which the defendants should not be held responsible. The leading authority on this issue is Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, a case in which a plaintiff had been injured in a work accident and alleged subsequent negligence in his treatment by a medical practitioner. A claim by the employer against the doctor for contribution was upheld by a Master at first instance, but struck out by a judge on appeal as disclosing no reasonable cause of action. The Master's decision was restored by the Court of Appeal. The High Court dismissed a further appeal, holding that a second tortfeasor might be liable to contribute if the second tort and its consequences were found to be foreseeable consequences of the negligence of the first tortfeasor. The original injury could be regarded as carrying some risk that medical treatment might be negligently given: if the plaintiff acted reasonably in seeking or accepting the treatment, negligence in the treatment would not necessarily be regarded as a novus actus interveniens relieving the first tortfeasor of liability for its effects. At the time of the appeal to the High Court there had been no findings of fact and the appeal was determined on the pleadings. As the Court said, in particular circumstances, minds might differ as to whether the subsequent injury was foreseeable or whether it was too remote to be regarded as a consequence for which an earlier tortfeasor might be held liable.

248. In the present case, the defendants do not seek contribution from the massage therapist but simply contend that they should not be found liable for the consequences of his conduct. It seems to me relevant that the plaintiff would not have been on the massage table but for the negligence of the defendants, and that the therapist's action, although professionally improper and arguably criminal, was in the nature of an opportunistic, spur-of-the-moment action which flowed from the very activity he was engaged in as a masseur. This is a borderline case, but it seems to me that what happened on that occasion was, from a legal perspective, reasonably foreseeable as a consequence of the negligence of the defendants and hence something for which the defendants are liable.

249. I should add that in any event, it does not seem to me that the consequences of the incident were of much significance in the scheme of things. It does not seem to me that the plaintiff's damages would have been measurably less if the incident had not happened, except perhaps in relation to the expense she incurred to Dr Mahoney for the counselling not accepted by Comcare. Even as to those expenses, it should be remembered that Comcare refused to pay for counselling not only in relation to the massage therapy incident but also in relation to the childhood sexual assaults of the plaintiff by her father and stepfather. It seems to me that the need for treatment for the latter was triggered by the motor accidents as much as by the masseur's assault, and that it is almost impossible to isolate from the fees charged by Dr Mahoney an amount which can be seen as related solely to the effects on the plaintiff of the assault.

Damages

250. The assessment of general damages for pain and suffering and loss of enjoyment of life in this case is made more difficult by the plaintiff's unreliability as a witness and her exaggeration and embellishment of her condition, in her presentation to doctors and other witnesses as well as in court. I accept that in the first car accident she was badly injured, though not nearly as badly as she later made out. Her injuries in the second accident were very minor, and can have amounted to no more than a short-term aggravation of her previous injuries. I accept that she has some continuing symptoms from time to time but I find that she is in very much better health than she admits. I would expect that within five years she will be capable of working full time in a clerical position if she chooses to do so. I think it likely that she will choose to re-enter the workforce when she can. I take account of the fact that after the completion of this case, her Comcare benefits will cease and she will be obliged to repay to the Commonwealth the total of the Comcare benefits which have been paid to her and on her behalf. I regard it as significant that she has been and remains in receipt of benefits equivalent to about seventy-five percent of her pre-accident earnings. My understanding is that if she had worked part-time, she would have been obliged to notify Comcare and her benefits would have been reduced accordingly. In the circumstances it seems to me that she has had little incentive to return to any kind of paid employment to date. This will change in the future.

251. I accept the majority opinion of the medical specialists who have seen her, to the effect that she has been fit for part-time work for at least the last two years. Accepting that during that period there may well have been times when she was unable to work, it seems to me reasonable to treat her for that two-year period as having lost sixty percent of her earning capacity, but retained forty percent which she has chosen not to exercise. Whilst there may have been sound reasons for that choice, it should not operate to the detriment of the defendants.

252. For general damages I award $75,000, which I apportion as to $60,000 for the past and $15,000 for the future. The past component attracts interest which I allow at $9,000, reflecting the fact that the past component is more heavily weighted to the first two years or so after the first accident.

253. As evidence of past treatment expenses, the plaintiff relies upon a letter from Comcare to her solicitors dated 24 February 2005, setting out payments made by Comcare up to that date. The last payment had been on 28 January 2005. Comcare had by then paid $106,137.48 by way of treatment expenses, and an additional $5,684.26 in reimbursement of travelling expenses incurred by the plaintiff in attending for treatment. In addition, the plaintiff claims amounts paid by the Health Insurance Commission in respects of Medicare claims she has made for treatment provided by various medical practitioners and not paid by Comcare. I can reasonably assume that the plaintiff has had additional treatment since February 2005, the cost of which should be included in her damages, and I propose to provide her solicitors with an opportunity to provide the solicitors for the defendant with details of any such claim in the hope that agreement can be reached about it. If it cannot, I shall hear the parties as to whether I should permit the plaintiff to reopen her case to adduce evidence of the cost of any such treatment. As to the cost of the treatment paid by Comcare, I have been through the schedule of payments, which runs to some thirty pages, and I am satisfied that the treatment listed was made necessary by the plaintiff's injuries. I am fortified in this view by the plaintiff's evidence from which it is clear that Comcare staff scrutinised her claims closely and disallowed a number as in their view not accident-related. I think that I can rely to some extent on the diligence of Comcare staff in this regard, in supporting the plaintiff's claim in this action for those amounts. Counsel for the defendants concedes that the amounts claimed are reasonable and that the plaintiff underwent the treatment, but does not concede causation. In the circumstances I am minded to allow the whole of the treatment paid for by Comcare.

254. For the reasons previously explained, I would also be prepared to allow any expense incurred by the plaintiff for the treatment by Dr Mahoney quarantined and disallowed by Comcare.

255. The position is otherwise with the amounts claimed in respect of the payments by the Health Insurance Commission. It is generally known in the community that in making a Medicare claim, the patient is required to certify that the treatment does not relate to a compensable condition. Having regard to her medical history, it seems quite likely that the plaintiff must have had some treatment over the years since the first accident which has been unrelated to her injuries. If the treatment in question had been so related, it seems to me likely that she would have claimed it from Comcare rather than Medicare. That part of her claim is accordingly disallowed.

256. I propose to make an allowance for future treatment. I take account of the fact that after judgment the plaintiff will be unable to claim treatment expenses on Comcare and will have to pay for her own treatment. It seems to me likely that she will limit this to treatment she really needs for her injuries. If she has become dependent upon some of her painkilling medication, I have no doubt that she will wean herself off the dependency once she has to pay for her medication out of her own funds. I propose to make an allowance for the next five years of $40,000, and for the future beyond that period of $10,000, a total of $50,000 for future treatment expenses.

257. In relation to loss of earnings, a schedule attached to the Comcare letter of 24 February 2005 discloses incapacity payments of $111,821.74. The periods covered run up to 31 December 2004. Whilst it is not entirely clear from the schedule, and there was no other evidence about it, I take it that this is a gross figure from which tax will have been deducted by Comcare, and that the plaintiff will be entitled as a head of damages to an amount equivalent to the tax she has paid on her compensation pursuant to Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

258. A concession was made on behalf of the defendants that the plaintiff had been absent from employment for the periods in respect of which the incapacity payments were made, but it was not conceded that the entire period of absence was a consequence of her injuries. As I have said, I propose to calculate the plaintiff's damages for past loss of earnings on the basis of a total loss of earning capacity up to the middle of 2004, and a loss of sixty percent of her earning capacity since then.

259. The plaintiff will be entitled to interest as a component of her damages, on the difference between what she would have earned but for her injuries and what she has received from Comcare. Again, I propose to allow the solicitors for the plaintiff the opportunity to bring the figures up to date and to attempt to reach agreement with the solicitors for the defendant on the mathematics, with liberty to apply if necessary.

260. As to loss of earning capacity for the future, I propose to allow the plaintiff five years on the footing that she retains forty percent of her notional earning capacity but has lost sixty percent of it. I ask the solicitors for the parties to agree on the weekly net amount applicable to the plaintiff's last position with the Commonwealth Public Service: I am not satisfied that she would have been promoted beyond that level. At the end of five years, upon my findings, the plaintiff will have effectively regained her full earning capacity: I propose to allow a rounded amount of $30,000 for the future beyond the next five years, to compensate her for the fact that, as a result of her injuries, it may be necessary for her from time to time to take time off work.

261. There is, as I have mentioned at various points when dealing with the evidence, a substantial claim for past gratuitous care, principally provided by the plaintiff's partner from time to time and by her mother, but also by her friends and other family members. As I have said, I regarded much of the evidence about the time spent on providing this care as greatly exaggerated. I also take the view that much of the time spent by the plaintiff's mother has been inflated by reason of the mother's personality. The defendants should be found liable only for a sum representing the reasonable cost of satisfying the plaintiff's injury-created needs. Rather than attempt a dissection of the various periods since the first accident, I propose to take an average over the whole period. It seems to me that a reasonable average would be three hours a day, which I allow at $18 per hour, a rate considerably less than that provided to the occupational therapists Ms Cadby and Ms Radbron by commercial organisations providing such care as a business for a profit, but a rate which seems to me to accord with the rate allowed in other cases in this court. This equates to an average of $378 per week or $19,656 per year. It is a little over six years since the first accident: I allow $120,000 for the past Griffiths v Kerkemeyer component, plus interest of $30,000. For the future, I propose to base my award on an average of one hour per day for the next five years, with a buffer for the more distant future. For the future Griffiths v Kerkemeyer component I allow $50,000.

262. In relation to the past Griffiths v Kerkemeyer component, it was argued by counsel for the defendants that I should not make any allowance for the services provided by Mr Steele during the period when he was in receipt of a carers pension. No authority was cited for this proposition. I remind myself that it is the plaintiff's need which must be compensated for. A plaintiff who pays for such services properly recovers the cost as part of his or her damages; where the services are provided gratuitously, the effect of the decision in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 and subsequent cases is that the plaintiff is entitled to recover the commercial cost of the provision of the services. It does not seem to me relevant that the services may at some point have been provided by a person who was receiving a Commonwealth carer's pension for doing so. I am assessing the plaintiff's damages, not a damages claim by Mr Steele. There is in any event a long-standing principle that pensions are not to be brought to account for the defendant's benefit in assessing damages: see for example National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569. Hence in arriving at the figure I propose to allow for the past Griffiths v Kerkemeyer component, I have not discounted the award to any degree to reflect the carer's pension.

263. I propose to publish these reasons and to stand the matter over to provide the parties with an opportunity to reach agreement on the components of damages I have left unquantified, consistently with the reasons. The parties are to have liberty to apply or to list the matter before me at any convenient time.

I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 7 July 2006

Counsel for the plaintiff: Mr F J Purnell SC & Mr I D Bradfield

Solicitors for the plaintiff: Porters

Counsel for the defendants: Mr M A Elkaim SC & Mr D M Wilson

Solicitors for the defendants: Phillips Fox

Date of hearing: 27, 28, 29 April 2004,

23, 24, 25, 26 August 2004,

29, 30, 31 March 2005,

1, 4, 5, 7 April 2005.

Date of judgment: 7 July 2006