Gerada v Fitzgerald [2008] ACTSC 56 (16 June 2008)

Last Updated: 28 July 2008

VIRGINIA GERADA V PETER AUGUSTINE FITZGERALD

[2008] ACTSC 56 (16 June 2008)

DAMAGES - personal injury - effect of subsequent injury - whether novus actus interveniens - whether no more than aggravation of earlier injury - applicable principles

DAMAGES - personal injury - subsequent injury giving rise to potential entitlement to workers' compensation but not to damages - no determination as to entitlement to compensation at time of trial - requirement to conduct "trial within a trial" to determine likely outcome of compensation proceedings if instituted - defendant entitled to reduction in damages equal to value of plaintiff's entitlement to compensation

DAMAGES - personal injury - plaintiff claiming workers' compensation for subsequent injury with same employer - significance to insurer's right of recovery of attribution of compensation payments to earlier or later injury

Kempsey District Hospital v Thackham (1995) 36 NSWLR 492

Hunt v Protonotarios [2007] ACTSC 16

State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003

No. SC 337 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 16 June 2008

IN THE SUPREME COURT OF THE )

) No. SC 337 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: VIRGINIA GERADA

Plaintiff

AND: PETER AUGUSTINE FITZGERALD

Defendant

ORDER

Judge: Master Harper

Date: 16 June 2008

Place: Canberra

THE COURT ORDERS THAT:

The parties have leave to approach the list clerk to fix a date for further submissions.

1. This is an assessment of damages for personal injury arising out of a motor vehicle collision. At about 5:15pm on 23 May 2000 the plaintiff, then a senior constable in the New South Wales police force, was a front seat passenger in a police car being driven by a colleague east on Canberra Avenue, Fyshwick. The car stopped in traffic because of traffic lights at the intersection of the Monaro Highway. The defendant was unable to stop in time and his car ran into the back of the police car, causing an impact between the front of the police car and the rear of the car next in line.

2. Action was commenced in May 2004. The injuries alleged in the statement of claim were whiplash injury to the neck, low back injury and shock. The principal disabilities claimed were pain and restriction of movement of the neck, shoulders and low back; difficulty in lifting, bending and sitting for long periods; restriction in ability to perform the duties of a police officer; and the probability of medical discharge.

3. The plaintiff was born on 15 December 1972. She was twenty-six at the time of the accident and is now thirty-four. She was born, and grew up, in Wollongong. She joined the New South Wales police force in 1994. She completed her training at Goulburn in November of that year, and was posted to Sutherland police station in Sydney. During 1996 she undertook a rescue course after which she was seconded to a police rescue squad in Sydney. She was transferred to Cooma in July 1998.

4. In August 1999, she was one of a group of police officers riding skidoos on the main range in Kosciusko National Park, searching for a group of missing snowboarders. In conditions of poor visibility, she rode the skidoo over a cornice. The skidoo went nose first into the snow some metres below. The plaintiff went over the handlebars and landed flat on her back in soft snow. In her oral evidence, the plaintiff recalled injuring her shins, and sustaining a minor whiplash injury. She said that she felt a little sore over the next few days, and had physiotherapy treatment for her neck and legs. She was able to resume rescue duties the following month. She was promoted from constable to senior constable in November 1999. She said that in the first few months of 2000 leading up to the motor accident, she was training five days a week with a personal trainer, including running, boxing, long walks, weight training and cardiovascular training. This was in addition to her police duties and in her own time. Her recollection was that by the time of the motor accident she was fitter than she had ever been.

5. The plaintiff was giving evidence about the skidoo accident approaching eight years after the event. I had the benefit of her employee's compensation claim form, completed and signed two days after the incident. According to the claim form, she was thrown about five metres to the ground, and suffered grazes, swelling, bruising and soreness to the legs, neck, shoulders, lower back and a finger. She was referred for physiotherapy by a Dr Steiner and commenced physiotherapy the day after the injury. The areas to be treated were noted as the lower legs, the cervical spine and the lumbar spine.

6. The plaintiff did not mention any injury to the lower back arising from this incident in chief, and she denied any low back injury or low back pain in cross-examination. It seems to me more likely than not that what she wrote on her claim form two days after the incident, and what was recorded on the physiotherapy referral the day after the incident, are more likely to reflect the reality than her recollection seven to eight years later.

7. The plaintiff's evidence was that she continued to see the physiotherapist regularly throughout the early part of 2000. She had a final physiotherapy treatment five days before the motor vehicle collision. Her evidence was that she had fully recovered from her injuries, but was continuing with the physiotherapy as a preventative measure, to make sure that she was not overdoing her training. She said that she would not have had further physiotherapy after that session, had it not been for the car accident.

8. The plaintiff's evidence about the motor vehicle collision was that she and her colleague were stopped at traffic lights in fairly heavy traffic. The collision happened without warning. Its force was such that the bun in which she was wearing her hair, in her words, exploded. She described the impact as a very heavy one. She was wearing her seatbelt. The police car was fitted with airbags but these were not activated. The plaintiff immediately felt tightness in her neck, which became worse over time. She and her colleague were helped from the police car by ambulance officers, and she was taken to Canberra Hospital by ambulance where she spent some hours in the casualty department. X-rays of her neck were taken which revealed no abnormality. She was discharged some time after 9.00pm, by which time she was beginning to feel pain in her lower back. They were driven back to Cooma in a police car.

9. The accident was attended by two officers of the Australian Federal Police, who prepared a report as to the circumstances of the collision. The recorded description is that the vehicles involved were travelling east in the second lane of Canberra Avenue, approaching the intersection of the Monaro Highway. Traffic was heavy, and was banked up to 163 metres west of the intersection. The car in which the plaintiff was travelling stopped about eight to ten feet behind the car in front. The defendant's vehicle is recorded as travelling in the same lane at an estimated speed of 60 km/h behind the car containing the plaintiff. The defendant's car failed to stop and collided with the rear of the plaintiff's vehicle, which was pushed forward into the rear of the car in front of it. There was minor rear panel damage to the front car. There was also minor rear panel damage to the police vehicle, and very minor panel damage to its front. According to the police report, the police vehicle was able to be driven from the scene and towing was unnecessary. The defendant's vehicle suffered major front end damage and had to be towed away. The defendant told the attending police officers that he was not aware of how fast he was going before the collision. The speed limit for that portion of Canberra Avenue was 80km/h. It is unclear from the police report who made the estimate of the defendant's speed. There were no independent witnesses identified in the police report.

10. The following day, the plaintiff was feeling worse. The pain in her neck and lower back had increased, and her neck was much tighter and restricted in movement. She saw a general practitioner in Cooma, Dr Gray.

11. A report by Dr Gray confirms that the plaintiff presented at his surgery on 24 May 2000 with headache and neck pain. On examination her neck was mildly stiff with reduced range of movement in all directions. She also complained of some thoracic back pain and stiffness. He prescribed anti-inflammatory and analgesic medication and gave her a referral for physiotherapy. By August 2000 Dr Gray regarded the plaintiff as fit for her work as a police officer though her normal duties might well exacerbate her condition. She continued to require regular physiotherapy and painkillers.

12. On 28 May 2000 the plaintiff completed a workers' compensation claim form. She described the collision. She listed her injuries as whiplash and pain to the lower back. She was asked to list the parts of her body which had been affected, and listed the neck and lower back. She gave a negative answer to a question as to whether the part was normal before the accident, saying that she had sustained whiplash injuries the previous August as a result of a skidoo accident, but that the part was improving. She listed the injuries she had sustained in the skidoo accident as whiplash, lacerations to both legs and a broken knuckle. Again I place more weight on the contents of the claim form, being an almost contemporaneous document, than on her recollection in the witness box more than seven years later.

13. The plaintiff went back to work on 27 May, four days after the accident, on restricted duties for three or four weeks, after which she commenced working at the Jindabyne police station for the winter of 2000 on full duties. During that winter she continued with physiotherapy at Cooma. She also had massage, took painkillers as needed, and used a special cushion recommended by the physiotherapist when travelling in a motor vehicle. Her work during that winter did not include any rescue duties.

14. Her symptoms were exacerbated by the need to wear her police appointments belt, which included a holster for a firearm, a spare magazine, a pouch for handcuffs, a first aid kit, a torch ring, a baton ring and a portable radio holder. The belt weighed about six kilograms. The plaintiff said that wearing the belt caused increased pain in the lower back.

15. At the end of the winter the plaintiff returned to Cooma police station. She continued with normal duties. She says that she had difficulty sleeping. She was in pain, and needed to take painkillers and anti-inflammatory medication. She was having problems wearing her appointments belt and driving a police car. Her oral evidence was that the pain in her lower back radiated into her right buttock or hip region and down her right leg into her foot. The neck pain radiated from the base of the skull into both shoulders. The plaintiff continued to carry out her full duties, but, she says, with difficulty. From time to time she was placed on restricted duties, and there were days when she needed to take time off work.

16. In April 2001 the plaintiff changed doctors. She left Dr Gray at the Bombala Street surgery in Cooma, and moved to Dr Learoyd at the Sharp Street surgery. Dr Learoyd continued as the plaintiff's treating general practitioner until she moved to Jindabyne in 2005.

17. Dr Learoyd records that he first saw the plaintiff in January 2001 for an unrelated matter. On 26 April 2001 she attended for a checkup for neck and back injuries, and gave him a history of the motor vehicle collision. She told him that she had been going to physiotherapy and massage regularly, and using Panadeine Forte intermittently, the last time being three weeks earlier. She had been given a different style of police appointments belt which made her work easier. She told him that she could not do normal activities without experiencing significant pain at the end of the day. Such activities including vacuuming and lawnmowing. She had constant pain in the neck and shoulders, with tightness and knots. Her lower back gave her discomfort and "felt like it was giving way". Dr Learoyd found no restriction of movement in the neck or lower back but did note a slight increase in muscle tension on the right side of the neck and a small degree of muscle spasm on the right side of the lower back. He prescribed Voltaren.

18. He saw her again on 28 February 2002. She had seen a chiropractor and had been put off work for a month. She complained of lower back pain and sciatic pain, worsened by wearing the appointments belt. The pain improved after a month on restricted duties without the belt.

19. Although proceedings were not commenced until May 2004, four years after the accident, it is apparent that the plaintiff had instructed solicitors by August 2000 when Dr Gray reported. Her solicitors in August 2001 sent her to the late Dr RJ Scott, occupational physician. He took a history of the motor vehicle collision which included the information that the defendant's vehicle was travelling at about 80 km/h prior to impact. The plaintiff told Dr Scott about the skidoo accident in August 1999. She said that she had had some low back pain resulting from that, which settled, and that she had returned to full duties. She complained to Dr Scott of low back pain at the time of the assessment, as well as pain in the neck and shoulders. When tired she had pain beneath the base of the skull. She had tightness in the thoraco-lumbar area. She had pain in the outer rear portion of the right thigh, lasting sometimes for as long as three weeks. Driving and standing became uncomfortable after about forty-five minutes, and sitting could also become uncomfortable after a time. Dr Scott concluded that the plaintiff had suffered soft-tissue (musculoligamentous) strains to the neck, shoulder and back which had become chronic. There was no evidence of any underlying degenerative changes in those parts of her body. She was in his opinion fit for her work as a police officer but should try to avoid exacerbating incidents such as arrests and heavy rescue work. Subject to this her prognosis was very good.

20. The defendant's insurer had the plaintiff assessed in June 2001 by Dr Derrick Billett, orthopaedic surgeon. The plaintiff gave him a similar history, adding in relation to the skidoo accident that she had eventually become symptom-free and had remained so until the motor accident. Dr Billett though that in addition to the soft tissue injury to the neck and low back, the plaintiff had probably aggravated underlying pre-existing constitutional degenerative changes. He though that the soft tissue injuries of May 2000 which had made those changes symptomatic had resolved by the time he saw her. He attributed her continuing symptoms to the degenerative changes, which he thought had probably taken place within the discs or facet joints. He went on to say he expected the plaintiff to make a full and complete recovery, presumably from the symptoms he attributed to the degenerative changes rather than to the motor accident.

21. Dr Scott disagreed strongly with Dr Billett. Dr Scott thought that there was no evidence to support the theory of underlying degenerative changes, which would not be expected in a fit and active woman aged twenty-nine.

22. I should say that I have some difficulty with Dr Billett's conclusion. Assuming that there were degenerative changes in progress within the plaintiff's anatomy, Dr Billett accepted that they were not productive of any symptoms prior to the motor collision. He also seems to have thought that the symptoms of which the plaintiff complained when he saw her would be likely to disappear in time, and that she would make a full recovery. In these circumstances it seems to me that the motor vehicle collision must be seen as a cause of the symptoms. There is nothing in Dr Billett's report to warrant a finding that the degenerative changes which he postulated were likely to give rise to symptoms in the future, in the absence of an equivalent traumatic event.

23. The plaintiff had seen a Cooma chiropractor, Mr Michael Shobbrook, half a dozen times between November 1998 and March 1999. Mr Shobbrook provided a report to the plaintiff's solicitors in February 2003. He said that the plaintiff "first presented to myself at this clinic on 8 January 2002." For some reason he made no reference to the presentations three years earlier although the attendances are recorded in his hand on a continuing sheet. In January 2002 Mr Shobbrook diagnosed a chronic manifestation of ligamentous and muscular strain in the lumbo-sacral, sacroiliac, cervico-thoracic and upper cervical areas of the spine. He said that the plaintiff had reported an overall improvement in her condition through 2002 but still suffered aggravations, particularly when wearing her appointments belt. It is apparent from Mr Shobbrook's records that the plaintiff presented to him ten times during January, February and March 2002, and thereafter at monthly intervals until early July 2002, followed by intervals of about six weeks through to mid-November 2002.

24. The plaintiff's evidence was that at the end of January 2002 she was put on restricted duties for two months. When she returned to full duties she was provided with a lighter appointments belt, of fabric rather than leather, resulting in some improvement in the low back symptoms. By mid-2002, she was continuing with training but said that her physical fitness was well below its pre-accident level. In mid-July 2002 the plaintiff took nine to ten weeks off work. She said that her back needed a rest. She had a friend visiting from the United States and wanted to spend some time with her. She had her tonsils removed in August. She took leave, not in the form of compensation leave related to the motor accident, until the beginning of October 2002.

25. In mid-October she was rostered to a search along the Thredbo River for missing kayakers. She was required to carry a day pack, and to walk up and down hills and on uneven ground, following the course of the river, for a period of about four hours. At the end of this she was in considerable pain, and needed to take painkillers and anti-inflammatory medication. She says that for the first time she realised she would not be able to return to rescue operation work as before.

26. On 20 November 2002, the plaintiff was involved in another incident involving the restraint of a mental health patient. The patient was at Cooma Hospital, and had just been informed by a doctor that he was to be "scheduled" and taken to a secure mental hospital at Goulburn. The patient became aggressive and refused to go. There were three ambulance officers and another police officer present as well as the plaintiff and the doctor. The ambulance and police officers had to restrain the patient while the doctor gave him medication. The patient was lying on a hospital bed and kicking out aggressively. The plaintiff was leaning over him and lying on his legs, with her torso twisted so that most of her body weight was on his legs. Eventually, after the medication had been administered, the patient calmed down and the plaintiff and her colleague took him to Goulburn. Immediately after the incident at the hospital, she became aware that the pain in her lower back and neck had increased. The car trip to Goulburn took two hours, and they drove back to Cooma, getting there some time after midnight. The plaintiff went home feeling sore and tired.

27. The plaintiff's evidence was that the next day, she was required to attend court at Cooma. She sat in the witness box to give evidence. As she stood up she felt what she described as a twinge in the lower back, specifically the right lower back and buttock region. She hesitated before leaving the witness box and walking back to her seat. She finished her shift that day, and said that she was limping at the end of it, and sorer than the previous night.

28. After work the plaintiff met her trainer at a local oval where her team was to play touch football. The plaintiff told the trainer that she was in a little pain and could not play. He said that the team was short of players and she was needed. She reluctantly played in the team. She said that she was limping quite badly during the game.

29. She said that after the game she went home and took her dog for a walk with a neighbour. She said "as we were walking back I felt a - it was - it's like an elastic band exploding in my lower - right lower buttock region." She had no choice but to walk home. She said that she was limping badly and that her neighbour's son took over the lead of her dog because she was unable to control it. In the days following, the pain continued to increase to a point where the plaintiff found it difficult to move. She saw her chiropractor, Mr Shobbrook, a number of times but without relief. She saw Dr Learoyd on 30 November 2002. He referred her for physiotherapy, and she also had massage therapy. Dr Learoyd arranged a CT scan of her low back early in January 2003, and a month later she saw Dr Bryan Ashman, an orthopaedic surgeon in Canberra, for an opinion as to whether surgery was indicated. No report from Dr Ashman was in evidence, and I assume that he recommended against surgery.

30. The plaintiff said that over the next month or six weeks her back pain either stayed the same or got worse. By way of clarification, she agreed that by "worse", she meant worse than she had been in the days leading up to the incident. She said that at times the pain level had reduced to its level in the weeks prior to the incident.

31. During 2003, rehabilitation consultants engaged by the NSW Police supervised her rehabilitation. In April 2003 she started taking a prescription antidepressant, Zoloft, initially at a dose of 50mgs per day, increasing six months later to 100mgs. She said that she had been suffering from depression for some years but had previously declined offers by her doctor to prescribe antidepressant medication.

32. The plaintiff was referred by the rehabilitation consultants to Dr Garth Eaton at the Canberra Injury Management Centre where she also saw a psychologist and a physiotherapist. She went back to work about three months after the mental patient incident, on restricted duties confined to the police station. She was permitted to deal with members of the public only if there were other police officers present.

33. Her now husband (they married in 2005) went to England on holiday. He was severely injured in a motor vehicle collision there in late May 2003. The plaintiff left Australia early in June 2003 to be with him. The airline arranged a wheelchair for her at the airport, and the plaintiff received special attention from flight attendants. She was asked to stay on the aeroplane at Bangkok to avoid a long walk to the waiting area. The airline had a wheelchair to meet her in London and helped her to collect her luggage.

34. She stayed in England until late October. Her husband was in hospital, and she stayed by his bedside every day. She assisted with medication. When he was discharged to his parents' home, she organised his meals. She tied his shoelaces. She would drive him some eight miles to hospital for physiotherapy and hydrotherapy once a week, in a rented car.

35. Whilst in England the plaintiff saw a chiropractor regularly, for treatment of symptoms in the neck, shoulders, low back and right hip.

36. On their return to Australia, the plaintiff resumed work on restricted duties and reduced hours at Cooma Police Station. In March 2004 she successfully applied for a position as a domestic violence liaison officer at Queanbeyan. The job required her to travel from her home at Cooma to Queanbeyan four days a week, for nine and a half hours each day. She found it difficult to cope. A friend at Cooma looked after her in the evenings, cooking meals and providing heat packs. She lasted only two weeks before returning to Cooma on administrative duties.

37. In July 2004 she saw another doctor in Dr Learoyd's practice who had a particular interest in back pain. He gave her injections in the neck and lower back. She found the process painful and productive of little if any relief.

38. Early in 2005 the plaintiff married and was assigned to Jindabyne Police Station where she was given administrative duties. She continued working there until her employment with the police force was terminated in March 2007.

39. After moving to Jindabyne, she changed to a local general practitioner, a local physiotherapist and a local massage therapist. Her evidence was that although some days were worse than others, in general terms her symptoms remained the same throughout 2005 and 2006.

40. During the first half of 2006, the plaintiff started working at home as a private music tutor, teaching young students to play the piano and the guitar. By the time of the hearing she was engaged in this work on Tuesdays, Wednesdays and Thursdays during school term time, charging $20.00 per hour and working about nine hours a week. She was having physiotherapy once a month and massage and acupuncture fortnightly. She was seeing her general practitioner once a month, and was taking prescription medication in the form of Zoloft (100 mg per day), Panadeine Forte, Panadol Osteo, Celebrex and Valium as required. She said that she took Panadeine Forte once or twice a week and Valium and Celebrex once or twice a month. She was constantly tired and lethargic, and was aware of a loss of short-term memory.

41. There is a significant issue between the parties as to whether the plaintiff suffered a fresh injury in November 2002 which amounted to a novus actus interveniens, or whether what she suffered then should be characterised as merely an aggravation of the injuries she suffered in the motor accident. The primary submission of counsel for the defendant is that by November 2002 she had fully recovered from the injuries she suffered in the motor accident. The position of counsel for the plaintiff is that she was still suffering from disabilities caused by the motor accident, and that those disabilities were exacerbated by the incidents of that month.

42. The plaintiff made a further claim for compensation based on an injury sustained while at Cooma Hospital restraining the mental health patient in the course of her police duties. It is apparent that the workers compensation insurer, GIO General Limited, treated the claim of 20 November 2002 as in respect of a separate injury. The claim was given a new claim number. The insurer effectively treated the claim of 23 May 2000 as complete, and attributed all payments of expenses after 20 November 2002 as flowing from the injury on that date. The payments of treatment expenses and compensation attributed to the May 2000 claim amounted to $3,727.37. The payments attributed to the claim of November 2002 amounted to $52,817.67 by 16 March 2007. The insurer has, however, now changed its position. Its solicitors in an email to the plaintiff's solicitors on 19 March 2007 said that the attribution of payments to the second claim file was "purely an administrative error and you should consider all of the payments set out in total. To construe the payments on the latter file as being wholly attributable to the incident with the mental patient would be erroneous. As it is your client's contention that the second injury is attributable to the original car accident my client requires a payback of the whole amount."

43. It seems to me unlikely that the insurer made an administrative error, and more probable that the claims officer or officers administering the claim adopted the course they did by reason of convenience, not appreciating that the course might have ramifications in relation to subsequent recovery from a tortfeasor.

44. To resolve the issue of the proper characterisation of the November 2002 incident or incidents, it is necessary to undertake an analysis of the medical evidence. Most of the evidence was admitted by way of medical report, though Dr Learoyd, Dr Brooder and Dr Champion also gave oral evidence. I have already summarised the reports in evidence which pre-date the events of November 2002. I have mentioned that the plaintiff saw her chiropractor, Mr Shobbrook, on 14 November 2002, a week before the incident with the mental patient.

45. On 25 November 2002 she was seen by another chiropractor in Mr Shobbrook's practice, Mr Karl Weber. He noted a complaint of acute pain in the right buttock "since touch football, riding bike four days". His note, which I do not find completely legible, also refers to the low back and injury at work. The plaintiff saw Mr Weber on three further occasions before the end of November, then once in December 2002 and three times in January 2003. She continued to see either Mr Weber or Mr Shobbrook at approximately weekly intervals until the end of May 2003 when she went to England, and continued to visit the practice regularly on her return.

46. On her last visit to Mr Shobbrook before the mental patient incident, on 14 November 2002, he noted complaints related to the wearing of her appointments belt, and wrote a letter for her employer, recommending that she be provided with a more flexible belt made from a synthetic material. In a report in February 2003, Mr Shobbrook said:

While Virginia herself reported an overall improvement in her condition through 2002 she still suffered aggravations particularly wearing her appointments belt. In fact I had just prepared a letter to her supervisor requesting a change from the more rigid leather belt to the softer synthetic one in the hope of removing one of the final aggravating factors, however the incident on 20 November 2002 led to Virginia presenting in such an acute manner that this has been delayed.

In my opinion, Ms Gerada's current condition is more likely than not caused by injuries received in the motor vehicle accident in 2000. It could reasonably be described as a re-aggravation of her previous motor vehicle accident related condition. The symptoms are the worst yet, however they are the same or similar to those suffered in the preceding two and a half years since the original motor vehicle accident.

47. Mr Shobbrook's opinion carries considerable weight, considering that he treated the plaintiff regularly through 2002 until shortly before the mental patient incident, and continued to treat her afterwards. Senior counsel for the defendant submits that Mr Shobbrook was not given a complete history of the events of November 2002, a subject to which I shall return. I note in passing that Mr Shobbrook was not required for cross-examination, depriving me of the opportunity to learn whether a more detailed history would have made any difference to his opinion.

48. Dr Learoyd saw the plaintiff on 30 November 2002, about a week after the mental patient incident. He said that she was again complaining of pain in the lower back, buttock and back of the leg. She told him that this had started just over a week previously. She said that she had been mountain-bike riding on the Monday and Tuesday of the previous week, and had had to wrestle with a mental health patient on the Wednesday. She first noticed a twinge when she got out of her chair whilst in court on the Thursday morning. Later that day she played touch football and took her dog for a walk. It was during the walk that her back "gave way". She said that that pain was the worse it had ever been. Her symptoms continued at a similar level. She complained of constant pain in the lower back which prevented her from engaging in most vigorous physical activities. Generally her complaints to Dr Learoyd were consistent with her oral evidence. Dr Learoyd thought that she would always have a degree of impairment and was vulnerable to significant exacerbation of symptoms if she twisted or strained her back in the future. His opinion was that her condition was more likely than not to have been caused by the motor accident. Her symptoms had been low level but persistent after that injury. He did not believe that she had ever fully recovered from the injury, although she had had periods of remission and exacerbation. After her further injury in November 2002, the nature of the symptoms, exacerbating and relieving factors were very similar to those she had after the first injury.

49. In March 2004 Dr Learoyd referred the plaintiff to Dr Ron Brooder, an Albury neurologist, for opinion. He provided Dr Brooder with a copy of his recent report to the plaintiff's solicitors. Dr Brooder took a history from the plaintiff orally as well as conducting a clinical examination. The history he accepted about the skidoo accident was that it had produced an episode of low back pain which had persisted for two to three months and had then fully resolved. The history he was given about the motor accident was that the responsible driver had been travelling at about eighty rather than sixty kilometres per hour. The clinical examination was consistent with the plaintiff's complaints of persistent low back pain extending into the right buttock and leg, and persistent neck pain extending into the shoulder girdle, with secondary depression. He took the view that the plaintiff at the time of examination was not fit for full duty as a police officer but was fit for light duties such as those of a domestic violence liaison officer. He thought that the plaintiff would have some symptoms permanently, with associated functional disability, though there was a reasonable prospect of some improvement. He expressed the view in his report that her condition was more likely than not caused by the motor accident. The events of October 2002 were to be seen as an aggravation and not as an independent cause.

50. In May 2004 the plaintiff was seen by Dr WM Wearne, orthopaedic surgeon, for the defendant's insurer. Dr Wearne acknowledged "having reviewed the available records" but these were not identified in his report. Thus I cannot be sure how much of the history recorded in his report was provided by the plaintiff at the consultation and how much was provided to him by way of documentary material in advance. He records the speed of the defendant's vehicle as 80km/h. The plaintiff told him that she had taken nine weeks off work between June and September 2002 as a combination of accrued holiday leave and sick leave, and that she had her tonsils out during that period. She told him that she had returned to work at the end of September 2002 still aware of pain in the neck, shoulders and low back, and sciatic pain down to the sole and toes of the right foot. The report contains a description of the events of November 2002, not including the two days mountain-bike riding mentioned by Dr Learoyd in his report, or the touch football.

51. Dr Wearne accepted the plaintiff's denial of any symptoms in the neck and back immediately prior to the motor accident. He expressed the opinion that she sustained soft tissue injuries to the neck and shoulder, and more severe soft tissue injuries to the lower back, in the motor accident. Her symptoms were in his view suggestive of an intervertebral disc lesion in the lumbar spine. He thought that the neck and shoulder symptoms would settle satisfactorily, but that the prognosis of the low back injury was uncertain. It was his opinion, from the history he had been given, that the incidents of November 2002 were an aggravation of a pre-existing injury sustained at the time of the motor accident. He was asked whether the plaintiff's restrictions and treatment needs were related solely, partially or not at all to the motor accident. His answer was that her restrictions and treatment were partially related to the motor accident and partially to the incident of November 2002. He was asked a second question, which he appears to have misunderstood. The question was: "If the claimant's restrictions and treatment needs are partially attributable to the accident, please attempt to make an apportionment between this accident and pre-existing conditions". Dr Wearne seems to have understood this question as a request to apportion responsibility between the car accident and the events of November 2002. He responded that this was difficult, and amounted to a well-educated guess. Subject to that rider, he apportioned 50% of the plaintiff's current restrictions and treatment to the motor accident and 50% to the incident of November 2002. I do not know whether the question was a standard question from a precedent or one drafted specifically by reference to the circumstances of the plaintiff's claim. Whatever the position in that regard, Dr Wearne did not seek to apportion any of the plaintiff's troubles to "pre-existing conditions" which I take to mean conditions predating the motor accident.

52. Dr Wearne could not exclude the possibility of a disc lesion despite no evidence of such a lesion appearing from an MRI scan undertaken in November 2003.

53. The defendant's solicitors sent the plaintiff back to Dr Wearne in March 2005. He noted that she had had a series of steroid injections into the low back, buttocks and hips since he had last seen her. He thought it probable that she would eventually be discharged from the police force because of her injuries though there was reason for some hope for her recovery in the long term. Surgery was not a consideration. He again apportioned 50% of the plaintiff's symptoms and disability to the motor accident and 50% to what he described as the workplace accident of November 2002. He thought that the plaintiff's need for continuing treatment would have ceased by mid-2004 if the workplace accident had not occurred. Perhaps inconsistently with this, he apportioned the plaintiff's current and future treatment needs equally between the two accidents.

54. The defendant's solicitors sent the plaintiff in May 2006 to Dr Peter Wilkins, an occupational physician. He records having been supplied with copious (though unfortunately not identified) documentation. By then she had developed carpal tunnel syndrome in both arms and was threatened with medical discharge from the police force where she was working on reduced hours. Dr Wilkins accepted that the plaintiff had suffered soft tissue injury to the neck, thoracic spine and lumbar spine in the motor accident in May 2000, and that she had never been pain-free since. The history he was given was that the incident of November 2002 caused only a brief exacerbation of the symptoms, which soon returned to their previous constant level. More recently the plaintiff's symptoms, she said, had worsened. Dr Wilkins diagnosed a chronic pain syndrome, complicating the musculoligamentous injuries to the neck and back of May 2000. He thought that there might also be elements of reactive depression in the pain syndrome, though this was outside his area of expertise. He said that the plaintiff's injuries were consistent with the stated cause of a rear end collision, though her disabilities were considerably more pronounced than he would have expected after such an accident. He took at face value the plaintiff's statement that by the time of the motor accident she had fully recovered from the skidoo incident. He expressed the opinion that the plaintiff's continuing pain, stiffness and reduced range of movement were all part of her chronic pain syndrome, and had all developed following the motor accident and persisted without significant change since. There was a clear temporal and likely causal relationship to the motor accident. The prognosis was guarded, with return to pre-accident status highly unlikely.

55. In October 2006 the plaintiff's solicitors sent her to Dr GD Champion, a consultant physician in rheumatology, musculoskeletal medicine and pain medicine and an Associate Professor at the University of New South Wales.

56. The plaintiff told Dr Champion that before the motor accident "she was in sound condition, nothing wrong with her." She told him of the skidoo accident the previous year. She said that there were no persisting post-injury disorders from that accident, that she lost only perhaps a day from work, and that she was soon able to resume her full vigorous duties.

57. It is apparent that Dr Champion was provided with copies of Dr Gray's report of August 2000 and Dr Learoyd's report of March 2004. It is a little unclear from Dr Champion's report whether he took a separate history from the plaintiff, or relied on the contents of those reports for much of the narrative in his report about the motor accident and the incidents of November 2002. It appears to me that much of the history in his report has been taken direct from the earlier reports. It seems that the plaintiff told Dr Champion that in her view the grappling with the mental health patient had been the most significant event in November 2002, by comparison with the mountain-bike riding, the rising from the chair in court, the touch football and taking the dog for a walk. She also expressed the view that if she had not had a vulnerable back as a result of the motor accident, it was unlikely that any of those events, or a combination of them, would have had any significant detrimental effect. She had been involved in similar incidents, including the restraining of mental patients, prior to the car accident without problems.

58. She told Dr Champion that three weeks before she saw him she had been troubled by suicidal thoughts. Her general practitioner in Jindabyne, Dr Saunders, had increased her Zoloft dose to 150 mgs per day, which appears to have restored her to normality in that regard. She saw her future as one of continuing pain with inability to work full-time. She thought that she might not be able to have children and in any event she would not be able to look after children because of her continuing pain. Recently she had been diagnosed with carpal tunnel syndrome in both arms, causing pins and needles and numbness in both hands. She also told Dr Champion that her sex life was practically non-existent because of her injuries.

59. Dr Champion had been provided with reports by Dr Scott, Dr Wilkins, Dr Wearne and Dr Brooder, which are in evidence. He had also been provided with three reports by Dr P Sharp, surgeon, of May, September and December 2004. These reports were not tendered by either party. Dr Sharp apparently attributed the plaintiff's symptoms by the end of 2004 50% to the car accident and 50% to the November 2002 incidents. In this regard Dr Sharp's view was consistent with that of Dr Wearne. Dr Champion did not consider the apportionment appropriate or credible. I have the impression that Dr Sharp was not a treating doctor, and think it likely that he was engaged by the workers' compensation insurer.

60. Dr Champion considered that the plaintiff presented in a reasonable and straightforward manner. He had no reason to doubt her integrity. He found some restriction of extension and right rotation in the cervical spine, which he thought was probably caused by apophyseal or facet joint pathology, and perhaps also from discs in the cervical spine. He noted that the symptoms in her arms and hands were commonly observed in many patients after motor vehicle accidents.

61. He thought that the plaintiff's low back symptoms were probably due to internal disc disruption at L5-S1 and to a lesser extent L4-5. The pain in the right leg was a mix of referred pain and S1 radicular pain. The car accident had predisposed the plaintiff to the right leg pain but it was the restraint incident of November 2002 which ultimately provoked most of the signs and symptoms. In addition the plaintiff suffered from prominent pain-related disability and interference with her quality of life, and consequential symptoms including anxiety, frustration, depression and interference with her relationship with her husband.

62. Dr Champion said in his report that the incident of November 2002 was important in adding to the plaintiff's pain and related disability, and in inducing or aggravating the pain in the right leg. However, if she had not injured her lumbar spine in the car accident, it was unlikely that she would have been in any way injured by the restraint incident. He attributed 60% of the lumbar spine and referred leg pain to the car accident and 40% to the restraint incident. Overall, considering all regions of pain, his apportionment was 80% to the car accident and 20% to the restraint incident.

63. He noted that there was not much in the way of demonstrable underlying pathology, but that the plaintiff's disorder was best understood according to current concepts of the neurobiology of pain. Her psychological responses were in his opinion within the normal range of psychology of pain. The essence of her disorder was the neurobiology underlying her chronic pain. Dr Champion expected some gradual improvement in her condition in the years to come, though she was presently fit only for part-time light duties.

64. Dr Brooder reviewed the plaintiff in October 2006. He accepted that the plaintiff felt that her pain had deteriorated since he had last seen her. He was strongly of the view that if she had not been involved in the car accident, the incident of November 2002 would not have resulted in her present physical incapacity or in inability to carry out the work of a police officer. Hence he remained of the view that her condition was more likely than not caused by the car accident. He thought that there was a significant risk that her symptoms and associated functional disability would continue, at least to some degree, indefinitely.

65. Dr Learoyd was cross-examined by telephone. He agreed that his report had conveyed the impression that he had not seen the plaintiff between 28 February 2002 and 30 November 2002, whereas his notes showed that he had seen her on a number of occasions between those two dates, including at least one consultation at the end of March 2002 where he had a record of complaint of pain in the sacroiliac joint. He agreed that there was no mention of neck pain in his notes of consultations with the plaintiff after April 2001. The neck pain, he said, had not featured a great deal at any time, and his work with the plaintiff had been mainly to do with her lower back. Dr Learoyd adhered in cross-examination to his opinion that the incidents of November 2002 had caused an aggravation of the injuries suffered by the plaintiff in the car accident.

66. Dr Brooder was cross-examined by telephone. He agreed that if one accepted that the plaintiff had spent two days riding a mountain bike in November 2002, just before the mental patient restraint incident, she must have had at that time a substantial capacity to engage in that sort of activity and could not have been subject to what he called a significant aggravation of her pain at that time. He agreed that the events of November 2002, on that assumption, took on a larger role in relation to causation of the plaintiff's disabilities, by comparison with the car accident, than he had thought at the time of his written reports. He could not exclude the possibility that what had happened in November 2002 had been a new incident in itself.

67. Dr Champion also gave evidence by telephone. He was asked whether his previous opinion would be affected if it were the fact that the plaintiff had had neck pain for about six months after the skidoo accident, and that her physiotherapy treatment continued up to five days before the car accident. He said that his opinion would not be altered in any material sense, though the history of six months of pain would imply a slight predisposition to post-accident disorder. The predisposition might have contributed 5% to 10% to the post-car accident consequences. The reason was that the skidoo accident would have somewhat sensitised the pain nerve endings in the tissues of the cervical spine and particularly the apophyseal joints and the cervical discs and related ligaments. Because of that, a subsequent neck injury would have been likely to have had somewhat more severe consequences.

68. Dr Champion was asked in cross-examination whether it would make any difference to his opinion if he were informed that the plaintiff had also suffered a low back injury, causing some pain, in the skidoo accident. He said that this might have had a predisposing effect, although if the low back injury had not continued to cause significant symptoms over the six months leading up to the motor accident "it may have been of virtually zero consequence." If there had been recurring low back pain continuing to the time of the motor accident, although less severe than the neck symptoms, there may have been a 5% contribution to the condition of the low back after the motor accident.

69. Dr Champion was cross-examined about the severity of the vehicle impact, with reference to the assumed speed of the offending vehicle of 80 km/h. His reply was that there were studies which showed that an impact at even 15 km/h in normal people could provoke significant neck injury. This was a subject upon which he had read widely and attended many conference presentations, as well as having seen thousands of people over many years after whiplash injuries.

70. It was put to Dr Champion in cross-examination that in assessing a patient complaining of soft tissue injuries not capable of being corroborated by radiological investigation, a doctor was heavily dependent on the history provided by the patient, and the presentation of the patient on physical examination. His reply was that MRI and CT and other imaging investigations were "just about as likely to be misleading as . . . helpful." There were often background degenerative changes or tissue pathology detected, which might be quite irrelevant to the patient's complaints of symptoms. On the other hand, an experienced doctor would conduct a pain-oriented physical examination, involving the potential for the patient to respond in a way which would be recognised as potentially misleading, inappropriate or exaggerated. Dr Champion had found that those methods were basically valid and reliable, and that whilst a patient could exaggerate to some extent, anything flagrant was likely to be recognised as an inappropriate response.

71. It was put to Dr Champion that the history of the use of painkillers and anti-inflammatory medication could be a reflection of the severity of the injury, or at least the amount of pain the patient was enduring. His reply was that there was a huge variation between individuals in acceptance of or willingness to take analgesia. Some people would not continue analgesia, while others would take it to an excessive extent. For the particular individual there was a proportionality between the severity of pain and disability and the extent of analgesic use, but most people in his experience endeavoured to get off regular analgesics. It was also fair to say that the benefits of anti-inflammatory drugs, from the limited research available, probably faded gradually.

72. He was then cross-examined about the fact that the plaintiff had spent two days riding a mountain bike down a mountain near Bombala immediately prior to the mental patient restraint incident in November 2002. He was asked whether it would surprise him that she would have engaged in such activity, having regard to the history she had given about her condition at that time. His answer referred to advice given by the medical profession to people with neck and back pain, after the initial acute phase, to maintain normal activities as far as possible, though with a sense of control, and also to engage in regular exercise. He took account of that fact that the plaintiff was a physically oriented person, inclined to exercise activities and motivated to get back to such activities. In those circumstances, whilst the mountain-bike riding was suggestive of very good progress, this was not necessarily as simple a conclusion as it might appear. Nevertheless he agreed that he would expect such activity to cause some increase in pain. One had to be cautious in drawing conclusions from the fact that she went mountain-bike riding on two consecutive days, because it was not known precisely what she did during the course of the mountain-bike riding, or exactly what she felt at the time. It was possible that she was determined to persevere notwithstanding some back pain.

73. Asked generally about the mountain-bike riding, the mental health patient restraint incident, the twinge of pain in court, the game of touch football, and walking her dog, he confirmed his conclusion that there was no new identifiable incident. Specifically in relation to the plaintiff's description of what happened while she was walking the dog, he explained that when a back or a leg gives way because of a back disorder, the giving way was almost invariably provoked by pain. The patient might not recall the pain because it was more dramatic in retrospect that the leg gave way or that the patient collapsed, and this is what was likely to be remembered further down the track. The description was indicative of a sudden mechanical stimulus to the spine, probably in the region where the pain nerve endings were already sensitised, so that a lessor physical provocation was required to cause sudden pain. Neither the mental patient incident nor the dog incident would necessarily have been followed by pain if the plaintiff's spine had previously been normal. In Dr Champion's view the plaintiff had an increased level of vulnerability involving sensitised pain nerve endings at the previous injury sites. Whilst the incidents could not be excluded as major determinants of her ongoing back pain, it was "not reasonable to put all of the substantial causal influence weight on those two subsequent incidents."

74. Dr Champion agreed that the history of a new symptom after November 2002 of pain down the right leg to the foot, which had not been present before, was important and indicated a probability of nerve root fibre injury, a significant event which must have occurred at some time during the events of November 2002.

75. After Dr Champion gave oral evidence, the hearing was adjourned for three months. During that period Dr Champion provided two further reports to the plaintiff's solicitors, though he did not give oral evidence again. He had been asked to address the question of permanent whole person impairment, applying WorkCover: AMA V Guidelines. His opinion was that the plaintiff had an 8% impairment of the whole person referable to her cervical spine injury, and a further 8% impairment referable to her lumbar spine injury, giving rise to a 16% impairment of the whole person. He was then asked to arrive at similar percentage figures related only to the consequences of the incident or incidents of November 2002. In relation to those incidents he arrived at a 3% impairment related to the lumbar spine and a 1% impairment related to the cervical spine, a total whole person impairment of 4%.

76. At the end of the third day of the hearing, both parties closed their cases. I had previously had some discussion with counsel about the potential effect on the assessment of damages of a principle said to emerge from Kempsey District Hospital v Thackham (1995) 36 NSWLR 492, a decision of the NSW Court of Appeal (Kirby P, Meagher and Handley JJA). Briefly, the principle is argued to apply where a plaintiff has suffered an injury subsequent to the one giving rise to the cause of action, and where the subsequent injury gives rise to an entitlement to workers' compensation though not to damages under the general law. The applicability of the principle to the present case will depend upon my findings of fact. In the present case the workers' compensation insurer, GIO General Limited, has made payments under New South Wales workers' compensation legislation to the plaintiff and on her behalf which she will be obliged to repay out of her damages. The same insurer, as I have mentioned previously, initially treated the mental patient restraint incident as a new injury and opened a new claim file. The insurer attributed all payments after November 2002 to the second claim file but now says, through its solicitors, that this was a mistake, that the mental patient incident caused only an aggravation of the injuries suffered by the plaintiff in the car accident, and that the insurer will be seeking repayment of all payments on both claim files out of the plaintiff's damages in this action.

77. I expressed concern that it was possible that my findings of fact and assessment of damages in the action would adversely affect the interests of the workers'[ compensation insurer, to the benefit of the plaintiff or the defendant or both, without the insurer having any opportunity to be heard.

78. I was informed that in May 2005 the workers' compensation insurer had commenced proceedings in the New South Wales Local Court against the defendant in the present action, seeking recovery of workers' compensation payments pursuant to a New South Wales statutory right. There was some correspondence about a transfer of those proceedings to this court under cross-vesting legislation, but this came to nothing and in March 2006 the Local Court proceedings were discontinued. The solicitors for the present defendant, acting on instructions from the third party insurer of the offending vehicle, had remained in communication with the solicitors for the workers' compensation insurer by correspondence throughout. I directed that the New South Wales Police Service be informed through the solicitors for the workers' compensation insurer of the stage reached in the current action, and given an opportunity to apply to be joined as a party. It was in those circumstances that the hearing of the action was adjourned in mid-April 2007 to late July. I was subsequently informed that the insurer had declined the opportunity of joinder or participation in the present proceedings.

79. It then emerged that the solicitors for the defendant had taken the opportunity to have surveillance of the plaintiff conducted during the period of the adjournment. Over objection by counsel for the plaintiff, I granted leave to reopen the defendant's case, the surveillance material being relevant and unquestionably fresh evidence which had not been available when the defendant's case was closed. I considered that the evidence was in a similar position to hypothetical fresh evidence about a deterioration in a plaintiff's condition, which would cause justifiable grievance on the part of the plaintiff if I refused to admit it. After I granted leave, a DVD of surveillance video was shown in court, and the DVD and a report by the firm of investigators who had undertaken the surveillance were admitted into evidence without objection. The investigators had been instructed, a week or so after the previous hearing, to undertake twenty hours of surveillance of the plaintiff. This resulted in about twenty minutes of video material. The film was taken on 1 and 2 May 2007. On the first day, the plaintiff was seen at her home in Jindabyne opening and closing the boot of her car, a Subaru Forester, and driving the car. She was seen at the Jindabyne shopping centre with her dog, going to the hairdresser, going to the post office, bending down to remove the dog's harness, putting boxes into the boot of the car, lifting and helping the dog into the boot of the car and running up the front steps of the house. At one stage she was seen, through the window of the hairdresser, to bend over for an extended period apparently looking through magazines. She appeared to bend freely at the waist, as she did when removing the harness of her dog, a German Shepherd, and placing items in the boot of the car. There was no obvious restriction of neck movements observed.

80. On the second day, the plaintiff was seen carrying a suitcase to the car and placing it in the car via the rear passenger door. This was a day when the plaintiff was apparently travelling by car from Cooma to Canberra and by air to Sydney. She was seen at Canberra Airport with her husband. At the airport, the plaintiff had a walking stick or perhaps a single Canadian crutch. The plaintiff was seen with a small backpack over her left shoulder while her husband wheeled a suitcase within the terminal. At the airport, the plaintiff displayed signs of discomfort and restriction of movement.

81. Because the DVD was tendered after the close of the plaintiff's case, the usual course of cross-examining the plaintiff about its content was not followed. I offered counsel for the plaintiff the opportunity to call evidence in reply but this was declined.

82. Counsel for the defendant submitted that I should infer that the plaintiff feigned discomfort and restriction at Canberra Airport for the purpose of obtaining preferential treatment from airport and airline staff, as she had during her trip to England in 2003.

83. There are two other possibilities. One is that the plaintiff, by the time she got to the airport, realised that she was under observation by an investigator. The only support for this hypothesis is a statement in the investigation report that "about 10.18 we observed the Claimants partner arriving at the drop-off area at the Canberra Airport and observed the Claimant and her partner showing signs of interest on our vehicle" [sic]. This is too flimsy a basis for me to draw any inference that the plaintiff was aware by that time of the surveillance.

84. The third possibility is that the plaintiff was genuinely stiff and sore after a drive of more than two hours from Jindabyne to Canberra. Of the three possibilities, the last seems to me the most likely. It seems inherently unlikely that the plaintiff would feign discomfort and restriction of movement at Canberra Airport but not in Jindabyne.

85. I took the view from her presentation in the witness box that the plaintiff was generally an honest witness, doing her best to give her evidence truthfully, but fully aware of the ramifications of her answers during cross-examination, and motivated to give her evidence to her own best advantage. It is a common experience that plaintiffs claiming damages for personal injury, no doubt seeing their day in court as their principal opportunity to put their case at its strongest, tend to err towards hyperbole rather than understatement. I suspect that frequently this is subconscious rather than deliberate. I have no reason to suspect that the plaintiff might be tailoring her answers so as to depart from the truth, though I am sure that her memory, as with all of us, is far more accurate as to recent events than as to events some years in the past. For that reason I prefer contemporaneous records to oral evidence based on recollection of events years earlier, in this case as much as seven years earlier in respect of the motor accident, and eight years earlier in respect of the skidoo incident.

86. I did form the view that the plaintiff, when relatively relaxed in her home environment at Jindabyne, displayed less apparent discomfort and less restriction of movement than I had observed two or three weeks earlier when she was giving her evidence. I am persuaded by the video evidence that the plaintiff's day-to-day condition is not quite as bad as one would assume from the oral evidence and the medical reports, but that spending two hours as a passenger in a motor vehicle causes her significant pain, discomfort and restriction of movement.

87. The first issue of significance for determination in the case is the plaintiff's condition immediately before the motor accident. Her case is that she had recovered within six months from the effects of the skidoo accident. The defendant's submission is that she had continuing symptoms, and that her damages arising out of the motor accident should reflect that these symptoms would have continued for some time if she had not been injured in the collision.

88. It seems to me that the best evidence is the worker's compensation claim form of 28 May 2000, five days after the motor vehicle collision. She said in that form that she had sustained whiplash injuries in August 1999 in the skidoo accident. To the question what parts of the body were affected in the motor accident, she responded "neck, lower back". To the next question, was the part normal before the accident, she ticked the "no" box. Asked to give details, she said "I sustained whiplash injuries in August last year result of skidoo accident, however, part was improving."

89. It seems a little too good to be true that the plaintiff had had her final physiotherapy session just five days before the motor accident. In the light of the contents of the claim form, I think it more likely that the physiotherapy would have continued for some time into the future, particularly as it was being paid for by the workers compensation insurer. I nevertheless accept that the plaintiff was fit for work and was undertaking vigorous physical activities by the time of the motor accident, so that it seems to me that any remaining disability from the skidoo accident by May 2000 must have been mild and intermittent.

90. Prior to showing the DVD surveillance evidence, senior counsel for the defendant applied for leave to further cross-examine the plaintiff. This was opposed and leave refused.

91. The next issue I am required to determine is whether the plaintiff had recovered from the effects of the motor accident prior to November 2002. Senior counsel for the defendant has endeavoured to persuade me to come to that conclusion on the basis of a number of pieces of evidence. One is that the last time the plaintiff saw her then general practitioner, Dr Learoyd, prior to November was in February 2002. Although that is the inference one would draw from Dr Learoyd's report of 9 March 2004, he explained in his oral evidence that he had seen her a number of times between February and November. On most of those occasions she had presented principally with symptoms unrelated to the motor accident, but on at least one and perhaps two occasions neck or low back symptoms had been to the fore.

92. It was apparent from Dr Learoyd's records that he had not prescribed painkillers or anti-inflammatory medication during that interval, but the plaintiff's evidence, which I am inclined to accept, was that she used from time to time non-prescription medication available from the chemist. I can also take judicial notice of the fact that, with repeat prescriptions, sufficient medication can be prescribed at a single consultation to last for a considerable time if used only intermittently.

93. If I take the plaintiff's evidence in conjunction with that of the treating practitioners who saw her before and after the events of November 2002, Dr Learoyd and Mr Shobbrook, I am comfortably satisfied that the plaintiff had not fully recovered from the effects of the motor accident by November 2002. This opinion is reinforced by the evidence of Dr Brooder and Dr Champion. I accept in particular the evidence of the latter as to the effect of the motor accident in predisposing the plaintiff to the effects of the incidents of November 2002. I accept Dr Champion's view that if the plaintiff had not been predisposed to such effects by the motor accident, probably the events of November 2002 would not have caused injury, certainly not injury leading to permanent or even significant temporary disability.

94. It is necessary for me to deal with the opinion of Dr Billett, who saw the plaintiff for the defendant's insurer in June 2001, a year after the motor accident and eighteen months before the events of November 2002. Dr Billett, it will be recalled, came to the view that the effects of the motor accident by the time he saw her had resolved, notwithstanding his acceptance of the fact that she had continuing pain in the neck and low back. Dr Billett attributed those symptoms to degenerative changes which he postulated, preceding the motor accident and previously asymptomatic. He did not say that the postulated degeneration was likely to have produced symptoms by the time he saw the plaintiff, regardless of the motor accident, or indeed at any time in the future. There was no radiological support for his hypothesis as to degenerative changes, and as to that hypothesis I prefer the evidence of the late Dr Scott and of Dr Learoyd. Dr Billett's theory is not supported or even mentioned by any of the other doctors relied on by the defendant, nor was it put to any of the plaintiff's doctors in cross-examination.

95. I am persuaded that by November 2002, the plaintiff, although there had been considerable improvement, was continuing to suffer from pain in the neck and low back, and that those symptoms were more probably than not caused by the mechanisms described by Dr Champion.

96. The next question to be determined is whether one of the events of November 2002, or a number of those events in combination, should be regarded as amounting to a novus actus interveniens, so that the consequences should not be laid at the door of the defendant.

97. I have had some difficulty in determining whether there was a particular event in November 2002 which could be seen as a novus actus interveniens. A series of events took place within a few days. First, the plaintiff spent two days riding a mountain bike with friends in the hills near Bombala. She appeared to accept in cross-examination that this was a particularly vigorous physical activity. She does not complain that the mountain-bike riding of itself caused any injury. On the contrary, senior counsel for the defendant relies on the mountain-bike riding as evidence that by then the plaintiff had fully recovered from the injuries she suffered in the car accident. As I have said, I am not of that view, though I accept that self-evidently by that time the plaintiff was capable of relatively vigorous activity of that kind, and capable of such activity for two consecutive days.

98. On the next day, the plaintiff was involved in the incident restraining the mental health patient which she has described in evidence, and which she claimed as a work-related injury for compensation purposes. She worked the next day, and her duties took her to court where she experienced a twinge of pain when she stood up from her seated position in the witness box. Such injury as she may have suffered by that time was not of sufficient severity to prevent her from playing touch football that evening, though her evidence is that she did so reluctantly. Again, there is no suggestion that anything happened during the touch football game which caused her to be immediately disabled.

99. Next, she took her dog for a walk with a friend. It was during the course of this walk that an incident occurred. In the witness box she likened this to an elastic band exploding in her low back or buttock. She had not employed such a dramatic description previously. She had told her general practitioner, Dr Learoyd, when she saw him on 30 November 2002, that her back "gave way" during the work with the dog. At that consultation she complained of pain in the low back and buttock, shooting down the back of the leg, and said that this had started just over a week previously. She described the pain as the worst that it had ever been. She was obviously in significant discomfort, with gross restriction of movement in the low back.

100. Whilst I had the benefit of copies of workers' compensation claims in relation to the skidoo incident and the car accident, and copies of Police Register of Injuries forms for three other incidents, no such document was tendered in relation to the mental health patient restraint incident or any of the incidents of November 2002. Thus I do not know when a workers' compensation claim form was completed by the plaintiff or lodged. It may well be that no claim was lodged until after the plaintiff had seen Dr Learoyd on 30 November.

101. There would clearly have been an immediate benefit to the plaintiff in having the issues of November 2002 dealt with as a workers' compensation claim. It seems to me unlikely that it would have immediately occurred to the plaintiff that there might have been any benefit in treating that incident as an aggravation of the injuries suffered in the car accident as opposed to a fresh compensation claim. It clearly suited the plaintiff far better to blame the effects upon her of the incidents of November 2002 on the mental health patient restraint incident rather than on something that happened while she was taking her dog for a walk in her own time, and it may well be that such attribution of blame was justified. The difficulty I have is that the expert medical evidence is not capable of satisfying me that there was one particular event, such as the mental health patient restraint incident, which caused what was undoubtedly an aggravation of the plaintiff's previous condition, and perhaps a fresh injury, identified by Dr Champion as probably a nerve root fibre injury, which caused the fresh disability of pain down the right leg to the foot. The trigger may have been the mental health patient restraint incident, or it may have been the spontaneous incident while walking the dog. Conceivably it may have been something which happened during the touch football game or even while riding her mountain bike. The fact that she was able to play touch football, although reluctantly, suggests to me that until then, what had happened to her while riding her mountain bike, restraining the patient or standing up in court may not have been of great significance, and that the actual trigger may have been something which happened during touch football or during the walk with the dog. A number of the medical witnesses agreed in cross-examination that a vulnerable but asymptomatic back can develop severe symptoms of pain and restriction of movement triggered by something as simple as bending over to tie one's shoe laces.

102. It does not seem to me that I am bound to find that the mental health patient restraint incident was the trigger, notwithstanding that the plaintiff apparently sought to categorise it in that way for workers' compensation purposes, that the workers' compensation insurer accepted the claim, or that the defendant in the present action is content to accept that characterisation.

103. It follows that I am not persuaded that the mental health patient restraint incident (still less the standing in the witness box incident the next day) was the cause of a fresh injury, or indeed of anything other than the most minor aggravation of the pre-existing injuries.

104. I accept the preponderance of the medical evidence, and in particular that of Dr Champion, that the events of November 2002 had the impact they did on the plaintiff's condition by reason of her vulnerability caused by the motor accident. Those events should be seen as aggravating incidents and none of them, individually or in combination, can reasonably be seen as a novus actus interveniens.

105. Counsel for the defendant sought to persuade me to accept the estimate of 60 km/h as the defendant's speed prior to impact in the collision of 23 May 2000, if I were to accept this, counsel submitted that I should find that the plaintiff's estimate of the defendant's speed at 80 km/h should be seen as an exaggeration with the aim of convincing me that the impact was more severe than it had been in fact. Counsel submitted that the description of the relatively minor damage to the police vehicle in the police report supported this conclusion.

106. It is far from clear to me where the estimate of 60 km/h in the police report came from. It seems clear that it was not an estimate given by the defendant, who told the police that he did not know what his speed had been. The plaintiff and her colleague were unaware of the defendant's approaching vehicle prior to impact and neither had any opportunity to form an estimate of its speed other than from the severity of the impact. I find myself unable to attach much persuasive value to the estimate in the police report, or indeed to the plaintiff's estimate. In the absence of expert evidence I am also unable to draw any inference from the very general description of the damage to the vehicles. I am satisfied from the plaintiff's evidence and from the medical evidence in the plaintiff's case that the impact was of sufficient severity to cause injury to her neck and low back, and I generally accept the plaintiff's evidence about the impact and the period immediately afterwards.

107. To return to the incidents of November 2002, I am bound to apply the law as to the assessment of damages where there has been a supervening accident, which I had occasion to consider in Hunt v Protonotarios [2007] ACTSC 16 I there quoted from the judgment of Malcolm CJ in the Full Court of the Supreme Court of Western Australia in State Government Insurance Commission v Oakley (1990) Aust Torts Reps 81-003 at 67,577. The principles explained by his Honour have been applied on a number of occasions in this Court and in other Australian jurisdictions. For present purposes, the applicable principle is:

. . . where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury . . .

. . . where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravating injury should be treated as caused by the defendant's negligence . . .

108. In the present case, the events of November 2002 would have occurred whether or not the plaintiff had been involved in the motor vehicle collision, from the viewpoint of the principles set out by Malcolm CJ. The consequences of those events must therefore be treated as flowing from the negligence of the defendant.

109. I referred earlier to submissions as to the applicability of the decision of the NSW Court of Appeal in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. In that case, a worker had suffered a work related injury which gave rise to a right to claim damages at common law against his employer. He had suffered another work-related injury some years later with another employer which did not give rise to a common law claim. The workers' compensation insurer of the second employer had made payments in respect of the second injury. The worker recovered damages at common law against the first employer in respect of both injuries. The trial judge held that at common law the damages suffered by the plaintiff as a result of the second injury could be recovered by him against the defendant, on the basis that the defendant's negligence had rendered him predisposed to the sort of injury he suffered in the later incident. The trial judge deducted from the allowance for past wage loss the nett amount received by the plaintiff by way of workers' compensation in respect of the second injury. The Court of Appeal held that this was correct, and went further, holding that the trial judge should also have deducted amounts to which the plaintiff was entitled by way of workers' compensation in respect of the second injury to the date of trial, and should have made a deduction on the same basis from the allowance for future economic loss. Meagher JA noted that the approach would sometimes require a trial within a trial, the judge at first instance having to decide what a workers' compensation judge would probably determine if the plaintiff made an application to the Compensation Court.

110. In Thackham, the employer at the time of the first injury was the tortfeasor, and the plaintiff was employed by a different employer at the time of the second injury. In the present case, by contrast, the employer was not the tortfeasor, and the plaintiff was employed by the same employer at the time of the motor accident and also in November 2002. The plaintiff was employed in New South Wales and if she were to make a claim for workers' compensation, she would have to make the application in that state, so that the Thackham principle would appear to be applicable.

111. On my findings of fact, there was no work-related injury in November 2002. Assuming that the appropriate tribunal in New South Wales came to the same conclusion on the facts as I have, a claim for workers' compensation by the plaintiff against the NSW Police Force in respect of the injury which she asserts she suffered at Cooma Hospital would fail. It seems to me that for the purpose of the trial within a trial referred to by Meagher JA, I must decide this case on the basis that a workers' compensation judge in New South Wales would arrive at the same findings of fact as I have. It follows that the plaintiff must be seen as having no potential entitlement to workers' compensation in New South Wales in the future, in respect of the asserted 2002 injury.

112. This leaves open the question of how I should characterise the payments of workers' compensation made by GIO General Limited since November 2002. It will be recalled that the insurer ascribed all of those payments to the November 2002 injury. Only during the course of the trial did the insurer assert, through its solicitors, that this had been a mistake and that the payments should have been attributed to the claim arising out of the motor vehicle collision in 2000. The insurer's motivation for doing so is reasonably clear. If the payments had been made in relation to the 2000 accident, they would be recoverable by the insurer out of the plaintiff's damages in this action.

113. It is clear from Thackham that if the payments were not made in relation to the motor vehicle collision claim, they would not be recoverable by the insurer out of the plaintiff's damages. Instead, the plaintiff's damages would be reduced by the amount of the payments. This would not affect the plaintiff's ultimate position, but it would mean that the workers' compensation insurer would bear the liability for those payments rather than the defendant's third party insurer.

114. There is nothing in the Thackham principle to assist me as to how to resolve this difficulty. Thackham is principally aimed at preventing double recovery by a plaintiff.

115. As I have previously mentioned, I provided the workers' compensation insurer with an opportunity to become a party to these proceedings, which would have put the insurer in a position where it could have called evidence if so advised, and could have made submissions as to the applicable legal principles, and to the findings I should make. The insurer decided not to avail itself of the opportunity.

116. It seems to me that payments made by the insurer before it purported to change its position, that is to change its characterisation of its payments to the plaintiff and on her behalf, must be treated as having been made in relation to the claim for the injury of November 2002. Everything about the way in which the insurer dealt with the claim is consistent with that conclusion. If the insurer had not accepted the plaintiff's claim for workers' compensation arising out of the asserted injury of November 2002, the plaintiff could have brought proceedings in New South Wales in relation to that claim. I cannot assume, from the findings of fact I have come to in 2008, that she would not have been successful: she might have been. She has lost that opportunity. The insurer, at the time of that claim, had rights and duties under the NSW Scheme and under the statutory policy it had issued to the plaintiff's employer, and must be taken to be bound by the manner in which it exercised those rights and duties at the time of the claim.

117. During addresses at the conclusion of the hearing last year, I indicated that I proposed to deliver reasons in relation to findings of fact, and to re-list the matter for further submissions on the final figures, bearing in mind that the plaintiff may or may not have been continuing to receive payments of workers' compensation since then, which may have been attributed by the insurer to the motor accident rather than the Cooma Hospital claim.

118. I accordingly propose to deliver these reasons in preliminary form and to list the matter for further submissions as to the various components of the award of damages in the light of my findings.

119. I shall not otherwise make any orders at this stage, but these reasons will form part of my ultimate reasons for judgment.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 16 June 2008

Counsel for the plaintiff: Mr RJ Mildren with Mr MB Inglis

Solicitors for the plaintiff: Hill & Rummery

Counsel for the defendant: Mr MA Elkaim SC with Mr CJ Ryan

Solicitors for the defendant: Moray & Agnew

Date of hearing: 10-12 April 2007, 23 July 2007

Date of judgment: 16 June 2008