Farnham v Pruden & RACQ Insurance Limited [2015] QDC 141

DISTRICT COURT OF QUEENSLAND CITATION: Farnham v Pruden & RACQ Insurance Limited (ACN 009 704 152) [2015] QDC 141 PARTIES: JANE FARNHAM (plaintiff) v DEBBIE JUNE PRUDEN (first defendant) RACQ INSURANCE LIMITED (ACN 009 704 152) (second defendant) FILE NO/S: D70/14 (Mackay) DIVISION: Trial (Civil) PROCEEDING: Claim ORIGINATING COURT: District Court Mackay DELIVERED ON: 3 June 2015 DELIVERED AT: Brisbane HEARING DATES: 1, 2 and 27 April 2015 JUDGE: JUDGEMENT AND ORDERS: Dorney QC DCJ 1. All parties are to file appropriate short minutes of the judgment in accordance with the reasons for judgment, and serve the same by 4pm 10 June 2015. 2. All parties have leave to file, and serve, written submissions on costs, if any, by 4pm 10 June 2015, unless the terms of a consent order can be agreed. CATCHWORDS: LEGISLATION CITED: Personal injuries – quantum – whether Civil Liability Act 2003 applies Civil Liability Act 2003 s 5(1)(b), s 11(1)(b), s 55, s 60(3) Civil Liability Regulation 2003 s 2, s 3, s 12(2) Civil Liability Regulation 2014 -- 1 of 18 -- 2 Workers Compensation and Rehabilitation Act 2003 s 32(1) s 32(2), s 34, s 34(1)(c), s 35, s 35(1)(a), s 35(2) CASES CITED: Allianz Australia Insurance Ltd v McCarthy [2013] 1 Qd R 503 Ballandis v Swebbs & Anor [2015] QCA 76 Balnaves v Neil Clifford Smith & Anor [2012] QSC 192 Gratrax Pty Ltd v T D & C Pty Ltd [2014] 2 Qd R 261 King v Parsons & Suncorp Metway Insurance Ltd [2006] 2 Qd R 122 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 401 Purkess v Crittenden (1965) 114 CLR 164 Withyman (by his tutor, Glenda Ruth Withyman) v State of New South Wales and Blackburn [2013] NSWCA 10 COUNSEL: SOLICITORS: R A I Myers for the plaintiff K S Howe for the first and second defendants Shine Lawyers for the plaintiff Quinlan Miller & Treston for the first and second defendants Introduction [1] Since liability has been settled in this proceeding, the only issue is damages. The plaintiff suffered personal injuries in Mackay on 21 May 2012 when she was involved in a significant motor vehicle accident which, from the evidence given at trial, I accept was emotionally distressing for the plaintiff, Ms Farnham. She was born on 7 November 1967. [2] A question which impinges upon the assessment of damages is whether the plaintiff at the time of the accident was driving in circumstances whereby the assessment of damages is to be made in accordance with the Civil Liability Act 2003 (“CLA”) or the common law, being an interpretive question on the facts and arising from the interplay between various provisions of the CLA and the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”). -- 2 of 18 -- 3 Journey injury (and does it matter)? [3] The relevant provisions of the CLA are contained in Reprint 3 and those of the WCRA in Reprint 6. According to them, s 5(1)(b) relevantly states that the CLA “does not apply” in relation to deciding liability for “awards of damages” for personal injury if the “harm” resulting from the breach of duty is, or includes, “an injury for which compensation is payable under the WCRA, other than an injury to which the s 34(1)(c) or s 35 of that Act applies”. The actual claim here, from the terms of the claim form (Exhibit 11), was based on a “journey” injury, though that simply explains why here compensation was paid. It does not create an estoppel. [4] Section 32(1) of the WCRA relevantly defines an “injury” as personal injury arising out of, or in the course of, employment “if…the employment is a significant contributing factor to the injury”. [5] Necessary to that definition are the extensions contained s 34 and s 35 of the WCRA. For present purposes, the only relevant provision here is s 35. As to that, s 32(2) states that employment need not be a significant contributing factor to the injury if, in particular, s 35(2) applies. [6] Newberry v Suncorp Metway Insurance Limited1 did not involve a consideration of s 35 of the WCRA. While the present wording in s 5(1)(b) is slightly different from that considered in Newberry, it has not being submitted that the case is not relevant authority. For present purposes, in an analysis in the judgment of Keane JA (as he then was) with whom de Jersey CJ and Muir J (as he then was) agreed, it was held that the claim for damages must come to grips with a need to assert that the claimant’s employment activities were “a significant factor in contributing to the injury”: at 534 [46]. As he went on to note, that raises issues of causation which must address the contribution of the claimant’s “employment activities to an injury which is also claimed to be caused by the fault of a person other than the employer”, along with “the significance of those activities in a context in which notions of legal fault on the part of the third party are of the essence of the claim”: also at 534 [46]. This exposition of law in that case on the facts considered in it led Keane JA to find that the “breach of duty alleged” and “the injury to Mr Newberry caused by that breach” were “not such as to involve, or to require, any reference to the exigencies or activities of Mr Newberry’s employment”: at 530 [28]. As he later stated, an “assertion that the exigencies or activities of Mr Newberry’s employment made significant contribution to the occurrence of the injury which was claimed to result from the breach of duty” by the driver of a car, unconnected with Mr Newberry’s employment, colliding with the truck in which Mr Newberry was a passenger, though in the course of his employment, “would have been nonsense”: also at 530 [28]. [7] The later case of King v Parsons & Suncorp Metway Insurance Ltd2– which also involved the major decision given by Keane JA - showed the converse. The latter case involved the “employee” being obliged to ride his personal delivery motorcycle on the footpath when he was struck by a driver who was reversing her car from an intersecting driveway. [8] Hence, the CLA is not excluded on that first test on the facts here. 1 [2006] 1 Qd R 519 2 [2006] 2 Qd R 122 -- 3 of 18 -- 4 [9] The second test here, as noted, involves a consideration of s 35(1)(a). This refers to the circumstances of the event happening “while the worker is on a journey between the worker’s home and place of employment”. [10] Before considering the detailed facts of this case for this purpose, it is necessary to consider Ballandis v Swebbs & Anor3. As noted by Morrison JA, with whom Fraser and Gotterson JJA both agreed, the convoluted language of s 5(1)(b) of the CLA meant that if compensation for the injury was covered by s 35 of the WCRA, then the CLA applied: at [11]. As he further noted, s 35(2) of the WCRA provided that, for the purposes of s 35(1), employment “need not be a significant contributing factor”: at [13]. Important for interpretive purposes is that Morrison JA held that s 35(1) was, in effect, “a deeming provision”: at [19]. Thus, it operated so that even if the injury did not actually arise out of, or in the course of, the worker’s employment, it will be taken to do so, if it occurred on a journey between the home and of the place of employment; and, thus, on its plain words, it applied even if the employee had finished work or was not then performing any work under that employment: at [19]. In wider terms, he held that “it applies to a journey outside working hours, such as to the workplace before work starts… just as much as it does to a journey during working hours”: also at [19]. Moreover, he held that it applied “even where the employee decides how and when the journey is undertaken”, because the provision did not depend on any element of control by the employer over the employee: at [20]. [11] A second important aspect that Morrison JA in Ballandis considered was that it was “implicit (or perhaps explicit) in the contentions” raised that the “place of employment” included the motor vehicle itself: at [21]. Even so, he noted that such an interpretation would need to satisfy the test that the motor vehicle was “plant” and that such a contention confronted the requirement for “control or management” by the employer: at [22]. Furthermore, it would confront the additional requirement that it was “in” or “in connection with” that in which the worker was working when the worker sustained the injury: also at [22]. [12] The plaintiff’s contentions were that, on the facts of this case:  the plaintiff was travelling in the course of her employment (although her journey, from a geographical point of view, was one between her home and her first visitation to which she was required to attend on the work day in question);  the plaintiff had “logged on” to her employer’s network prior to the commencement of her working day and had recorded the relevant odometer reading (since she was paid for the kilometres travelled from when she left the house and paid for the time after so leaving); and  the letter from the plaintiff’s then employer, the Commission for Children and Young People and Child Guardian (“Commission”), of 19 December 2014 (Exhibit 14) confirmed those incidents of her employment. [13] The defendants contended in response that here:  the plaintiff claimed compensation on the basis of a “journey” claim;  her home or place of residence did not lose its character because the plaintiff was paid for work at home or for travel when she left, because the plaintiff had left her home; 3 [2015] QCA 76 -- 4 of 18 -- 5  the plaintiff’s tax returns made no reference to the home as a home office (thereby undermining her assertions); and  if the plaintiff did not come within s 35, then she came within s 32 and, if so, that cannot be satisfied because her work was coincidental, there being no alleged breach of duty, or breaches of duties, by the employer. [14] The problem that the plaintiff faces though is the last point raised by the defendants. Thus, even if I were to find that she was not on a journey between her home and place of employment under s 35(1)(a), she still would not satisfy the requirements, already examined, of s 32 which were analogously canvassed in Newberry and King. There is nothing illogical in that outcome, even though the mental processes might tend to be akin to confusion. [15] Hence, the provisions of the CLA apply. The relevant regulation is the Civil Liability Regulation 2003 (“CLR”) (Reprint 2A) apart from s 8 of the Civil Liability Regulation 2014. Pre-existing stressors [16] While the plaintiff claims that she has suffered a soft issue injury to the cervical spine, the most significant claim, for present purposes, is the adjustment disorder (being “a psychiatric or psychological disorder”). Of great significance in the determination of the effect of the adjustment disorder is the extent to which, if any, pre-existing stress factors in the plaintiff’s life had an impact after the accident on decisions that the plaintiff then made, particularly in terms of employment, and whether that impact was causally related to the accident. [17] In the most general of terms, prior to the accident, particular stressors in the plaintiff’s life had arisen from:  her first child being “still born” (though that was in the 1990s);  her marriage break-up in early 2004 ( about which she told Dr Chung she developed depression and which she described in terms that it “wasn’t the best in the early parts”, though the relationship had “mellowed out” and was “much better now”);  her mother’s diagnosis, just a week before the accident, of dementia;  her sister’s ongoing and worsening terminal breast cancer;  balancing home education demands (for her children) with single parenthood and work commitments;  family stressors (which she described as a failure by other family members to understand her particular circumstances, particularly concerning her brother’s attitude to her); and  general health problems (including some lapses of memory, some confusion with routes of travel when driving, some fatigue, some lower back pain, some headaches and some sleeping problems). [18] While the plaintiff complained of a number of those matters (particularly concerning her general medical condition) after the accident (including the sleeping problems and headaches as well as a different specific back pain), I accept that many of those prior “complaints” resulted from her treating general practitioners asking for, and receiving, fairly detailed information about everything that happened in her life which might have potentially have had any medical basis. There was significantly detailed evidence led from virtually every one of a medical inclination, or inquirer of the same, -- 5 of 18 -- 6 who saw the plaintiff both prior, and subsequent, to the accident such that her entire life was laid out in a fairly bare manner. The view that I formed of the plaintiff in the witness box, who had to endure constant interruptions to her evidence to enable other witnesses to be called to give evidence, showed to me that she: was a resourceful person; was not overly dramatic in any aspect upon which she was examined (and particularly cross-examined); and attempted to explain the many trying circumstances concerning her life in a way that, while admittedly very subjective, was not such that I would conclude that she lacked candour (though she may have lacked insight into her real reasons for acts done). [19] Having reached such a conclusion, though, that subjective approach that I have mentioned may also have tended to obscure her memory of the underlying reasons why she took particular actions that she did, which, as I explore later, may find a base in her personality as diagnosed. [20] This aspect is important because Purkess v Crittenden4 instructs that both any pre- existing condition and its future probable effects (or its actual relationship to the claimed incapacity) must be the subject of evidence which, if accepted, “would establish, with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be”: per Barwick CJ, Kitto and Taylor JJ, at 168. [21] No medical specialist called by either side proffered the opinion that the plaintiff’s pre-accident condition included what the relevant specialists have diagnosed, resulting from the accident, as an adjustment disorder. What pre-existed, as is referred to later, was her “obsessive compulsive personality traits”. Nevertheless, the stressors which have been mentioned, particularly those concerned with the plaintiff’s mother’s and sister’s conditions need careful scrutiny in an assessment of whether they, especially with the other non-accident circumstances mentioned, have had a statutory causal relationship with particular acts done by the plaintiff after the accident. [22] Because so much emphasis was placed upon them, it is necessary to examine a number of the entries made by various medical practitioners prior to the accident and a number of statements made by the plaintiff after the accident dealing with both her pre-accident and post-accident states of mind. Besides, such things as those disclosed to the chiropractor, Dr Tierney (nee Pelletier), in late July 2011 [as headaches (with an “odd” smoke smell), an episode of migraine headaches with “usual” disturbances, memory loss (which had worsened over a year) requiring note taking and leading to a “doughy feeling in the head”, and intermittent issues with balance and fatigue], which were stated to accompany “moderate” states of stress in her life in general, in (family) relationships, and in finances – even though by early March 2012 her headaches had “reduced a lot” and she did not say anything about stresses – do need some attention in circumstances where a differing recollection by the plaintiff was advanced. As for the post-accident “stress”, it is relevant that, after the plaintiff’s resignation, she stated, on 22 November 2012, that she was “spending a lot of time helping with the care of her sister” and had “significant emotional distress”. [23] Ms Cathy Holland, a psychologist, gave evidence, essentially recollecting solely from her notes, that, when she saw the plaintiff about a week after the accident, the plaintiff 4 (1965) 114 CLR 164 -- 6 of 18 -- 7 stated that her “coping” was “poor” prior to the accident, though it is understood that the statement was made also in the context of “just hearing that her mother had been diagnosed with early onset dementia and that she was also dealing with other family issues”. When then asked about what the plaintiff said about how she had coped, the response was that she stated that she so coped “by doing writing down exercises and then burning them”. With due respect to Ms Holland – or at least the submissions made on the basis of that particular evidence – there is nothing in the evidence given by others who knew the plaintiff, both at work and socially (such as Mrs Greaves, Mrs Robinson and Mr Langton) prior to the accident, which would necessarily suggest that that brief statement on its own supported the conclusion that she was incapable of continuing on with her work and life, at least just then. It also must be remembered that the statement was made within a week of the accident and where the uncontested psychiatric diagnosis was that she had just suffered this adjustment disorder. How the expert psychiatrists used such, and other, evidence will be canvassed later. [24] Dealing, then, with the evidence of the general practitioner, Dr Cleveland, the clear impression that I obtained from his evidence was that his “professional opinion” was informed at least to some extent, by his asserted “experience” in working “in psychiatry”. That was never explored in terms of his qualifications, which were simply that he had been a general practitioner for five years. Even though Dr Cleveland had not seen the plaintiff until 30 May 2012 – approximately a week after the accident – he gave the opinion, in cross-examination, that the plaintiff “had a lot of issues going on before the accident”, that “there was a lot of dysfunction within the family and that” these were “affecting her mental health and how she was actually dealing with the injury”. He was, of course, at that stage referring to the fact of the plaintiff’s resignation from work; but had based his conclusions on earlier notes, made by others. His conclusion, from statements made to him by the plaintiff with respect to that, was that “family was more important” and that “actually she needed to be able to help” because that “was important to her mental health and also recovery”. Perhaps more importantly, in cross-examination, Dr Cleveland admitted that he had, during a conversation with a representative of WorkCover, stated that the accident was “the last straw”. Although Dr Cleveland admitted that that was the view as it “appeared” to him “at the time”, since (i.e by trial) he had been treating the plaintiff for “nearly three years” and since that earlier statement was made on 19 June 2012, he expressed the further opinion that “it may have been that she would have developed depression regardless of the accident”. Even so, he later expressed the view that the plaintiff “seemed to be quite a resilient person” and further noted that she “had to cope” as she “had no other choice”. He also noted that she was “intelligent and articulate”, though “perhaps she had a bit of vulnerability to depression”. [25] In light of that analysis, I have not found it, for instance, to be of much value that, earlier, Dr Cleveland had expressed the belief that the “motor car accident was one of the reasons why she was struggling to cope with the job”, especially where, in re- examination, he stated that the “material reason” or “primary focus” for her resignation was that, from his “recollection and notes”, her income was varying (because of a wage mix-up) and she “wanted to spent more time - the time that was left” “looking after he sister”. That is, there is insufficient consistency to demand any material influence in the determination of causal relationships apart from what the plaintiff told him about her – and, thereby, rendering it able to be used by others as relevant to her medical history. -- 7 of 18 -- 8 [26] The plaintiff was not examined by any psychologist or psychiatrist at any time immediately prior to the accident, although she conceded that she had attempted an overdose on Benzodiazepine many years before, just subsequent to a difficult marriage break-up. The resignation of 16 November 2012 [27] In many ways, this is a pivotal event. The defendants’ submission is that the resignation from her then employment with the Commission was not because of any accident related injury or injuries but, rather, because of non-accident related matters, particularly those associated with her personal and family stressors (outlined in general terms earlier); whereas the plaintiff maintained that she “was not coping with being…who (she) had to be” in that job. [28] It is in this line of enquiry that comments made by Byrne SJA in Balnaves v Neil Clifford Smith & Anor5 can have particular importance. There, he stated that “inferences from surrounding circumstances, other objective facts and probabilities may be a more reliable guide on questions of causation than ex post facto evidence from an interested party”: at [100]. [29] Additionally, concerning the effect of an intervening decision of a claimant (upon the claimant’s entitlement to recover damages), the Court of Appeal, recently, in Gratrax Pty Ltd v T D & C Pty Ltd6, through Fraser JA, analysed, amongst other authorities, Medlin v The State Government Insurance Commission7. The position in Medlin, with respect to the identified intervening event, hinged on the underlying reason for the plaintiff’s decision to retire early (from an academic position). The trial Judge had, by reference to Medlin, framed the correct question of “whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant’s liability in damages, the premature termination of the plaintiff’s employment was the product of the plaintiff’s loss of earning capacity notwithstanding that it was brought about by his own decision to accept a voluntary retirement”: at [15]. As Fraser JA remarked in the case that he was considering – which has resonance here – a well recognised aspect of the causation issue that Medlin identified concerns the effect, upon the necessary causal connection between breach of duty and a claimant’s loss, of a supervening act or decision of the claimant which is a more immediate cause of the claimant’s loss than the wrongdoer’s breach of duty: at [23]. As further remarked by Fraser JA, in applying the methodology now mandated by s 11(1)(b) of the CLA and referring, for that purpose, to authoritive decisions about the effect of an intervening decision of a claimant which is a more immediate cause of the claimant’s loss than the wrongdoer’s duty, the trial Judge had anticipated Wallace v Kam: at [25]. After referring, in detail, to that High Court decision, Fraser JA noted that the passages extracted reflected the trial Judge’s non- erroneous approach, being that the trial Judge complied with s 11(1): by asking whether or not the respondent’s negligence was a necessary condition of the occurrence of loss which the appellant sustained (the “but for” test) [according to s11(1)(a)]; and, having answered that question in the affirmative, by answering the “normative question” in s 11(1)(b), by applying precedent on the footing of that s 11(1)(b) “guides but does not displace common law methodology”: at [26]. 5 [2012] QSC 192 6 [2014] 2 Qd R 261 7 (1995) 182 CLR 1 -- 8 of 18 -- 9 [30] Before considering the evidence of the psychiatric experts, both of whom were eminently qualified (being Dr Chung, called by the plaintiff, and Dr Oelrichs, called by the defendants) an analysis of the evidence of the treating psychologist, Ms Carolyn Richie, needs to be undertaken. [31] The defendants placed great evidence on her records, and recollections, particularly of events between 18 October 2012 and 30 October 2012. In this context, Ms Richie was then developing methods and techniques to reduce the, at times, disabling anxiety associated with the plaintiff being adversely affected in her driving capacity, at a time when there was shown to be “a deteriorating and worsening picture” for the plaintiff’s sister. [32] The fact that on 18 October 2012 an appointment with Ms Richie was cancelled, because the plaintiff’s sister “may have taken a turn for the worst”, is of little moment in my view. An attendance on 30 October 2012, when treatment for her sister had been withdrawn and her sister had been given one to three months to live, not unexpectedly produced a reaction in the plaintiff that “deterioration” was “more rapid than she expected” and that there were “impacts and effects” on the family, with it being “likely” that her sister “will need someone 24/7 to at least be in the house with her” because she was “very fatigued easily”. For Ms Richie to divine from that, under questioning, that the plaintiff was then expressing “a desire” that she wanted to be there “for her sister, to care for her” is not necessarily a conclusion one can take simply from that particular note (which was really the basis upon which Ms Richie was giving her evidence), though an earlier note of 9 October 2012 had referred to the fact that the plaintiff stated she “would like to help her sister stay at home to die”. Furthermore, the plaintiff stated that “her anxiety increased to the point where she is now experiencing driving anxiety again in the rain if her sister is in the car with her” (emphasis added). The plaintiff then added that she did not feel that she had “the coping skills and emotional energy to continue supporting children in her role as the community visitor” and “will resign from her job” because she “feels a sense of failure”. The questioning of Ms Richie in a way that suggested it was “true that she was telling you in those attendances before 16 November 2012 … that she wanted to care for her sister and help out significantly to care for her sister” not only may overstate Ms Ritchie’s own conclusions about potentially ambiguous statements from the plaintiff but also relies upon the not unnatural inclination of a sister, such as the plaintiff here, to assist in any way that she was able. To interpose there, the plaintiff, particularly in cross-examination, was adamant that she herself was not to do the “24/7” help but that others, including her sister’s husband, would be doing it. [33] Turning then to an entry on 17 January 2013 (post-retirement), the plaintiff was stated to be “not emotionally stable enough to (return to work) at this stage”, having just noted that the plaintiff had a “very difficult few months of her sister dying and the family grief and stresses that have resulted”. This then led to a positive answer to the question that what was “affecting her at this time was the issue of her sister dying and the family grief”, although the full answer states that it was “a combination of that as well as an exacerbation in the driving anxiety” (emphasis added). In a contemporary statement to Ms Belither, on 23 January 2013 the plaintiff had said that, according to the notes taken, she “agree(d) that (her) current inability to work is to do with the grieving process and other personal issues”, although she added that “the accident (had) knocked her sideways”. This is consonant with Ms Ritchie’s written report dated January 2013. It should also be noted that Ms Richie was, at times at least, careful to state that the factors of the plaintiff’s mother’s diagnosis, the plaintiff’s -- 9 of 18 -- 10 sister’s terminal illness and other family conflicts “for a single mum with four children” were stressors “that were in her life, you know, for quite some time”. [34] Lastly, with respect to Ms Richie’s evidence, the information referred to earlier that Ms Richie had noted on 22 November 2012 that the plaintiff has had “significant emotional distress relating to her sister’s impending passing” also contained the informative remark that the plaintiff’s former husband “has been supportive and helpful”. In circumstances where the plaintiff freely admitted that after her resignation she did have more time to spend helping with the care of her sister, while obviously a factor, has not, to me at least, the significance that the defendants attempted to place on it, as a conclusion to be reached without the benefit of the views of the expert psychiatrists. [35] Having dealt with those contextual matters, I turn to the evidence of Dr Chung. His report of 27 October 2014, which followed his earlier report of 27 May 2013, concluded that the plaintiff continued “to satisfy the diagnostic criteria for an adjustment disorder with anxiety and depressive symptoms”. The plaintiff had informed Dr Chung that her mood had improved since she had been on medication, and had undergone cognitive behavioural therapy (with exposure therapy). He stated that the plaintiff had “obsessive compulsive personality traits” and was then “in a state dependent obsessive compulsive personality disorder”. His overall prognosis for her was “poor”. That later report did not deal directly with the resignation. The earlier first report, relevant to this issue, was that the accident related symptoms had affected her ability to work “since the accident” with a further note that, since the death of her sister, “her symptoms had improved”. Directly with respect to her capacity to work, this earlier report stated that she had been “experiencing depressive symptoms and severe anxiety symptoms which affected her ability to work with her clients”, though it also stated that her “symptoms” had “improved dramatically” after December 2012, later tying that improvement to being “since the death of her sister”. [36] In cross-examination [having been taken to a more detailed history of the pre-accident medical conditions which, in the detail given at trial, understandably had not been elicited on Dr Chung’s medical examination – even though, in cross-examination (giving audio evidence) he referred to having notes of Mrs Ritchie (which appeared to be unread by him)], he stated that the history of sleeping problems, lack of energy, fatiguing easily, concentration worsening and memory problems “would probably lead me to believe that there was something pre-existing and perhaps something that would lead me to look into some further enquiries with regard to past issues that she may have struggled with”. Although he then added, to later questions, that the symptoms were “not very specific” and that he really could not give “a definite answer at this point”, he finally concluded that they would be contrary to a high functioning individual prior to the accident, conceding that from what he had been told originally by the plaintiff herself “it sounded like she was high functioning at the time”. With respect to the improvement of symptoms after her sister’s death, Dr Chung expressed the conclusion that “death can sometimes be a relieving factor, and perhaps the symptoms will improve if that were (to be) the case”. [37] When taken to Ms Richie’s actual entries, particularly with respect to not “coping”, after acknowledging that he was not informed of that and, further, was not informed of that which Ms Holland had been told on 28 May 2012 about the plaintiff’s medical history, he conceded that it did “present a different picture” in contrast to someone “coping well prior to the motor vehicle accident”. When questioned about whether -- 10 of 18 -- 11 the plaintiff was really “high functioning”, Dr Chung responded that the new information “does indicate that at that point in time she probably wasn’t coping as well as she should”. [38] When then taken to yet other entries (particularly: concerning the effect of the plaintiff’s sister’s cancer on the plaintiff, which elicited a remark from him that it indicated “somebody who was trying to look after her sister under a very difficult situation”; concerning Dr Cleveland’s note of 19 October 2012 as indicative of the fact that it was “just too much to stay at work because of the sister’s condition”; and concerning remarks from the other psychologist and a WorkCover counsellor), he conceded that they were not accident related stressors that were barriers for continuing with work, adding that it seemed that the reason that the plaintiff resigned from her position was because of the demands of having to care for her terminally ill sister, adding that, perhaps once that was over with, “she felt that she was able to look for other employment”. [39] When, after Dr Chung had given his evidence, the plaintiff was cross-examined on those numerous entries concerning her, she acknowledged that she could have said such things, although she did “not remember” many of those matters. She stuck to the view that the assistance that she did give to her sister was not, in any way, full- time care, since that was also what “her husband did, her children did, her friends did, her family did, Blue Care did” and that everybody was working “towards that goal of doing that” and it was “not just” her, it was “everyone”. She was also adamant that stressors that were upon her also were from the accident and, in particular, that she “resigned from work because (she) could not be the person (she had) been at work” and “could not be the good community visitor (that she) had felt (that she) had been in that role”. Later, she added that she “made (her) decision to resign from work based on (her) inability to do (her) job properly”. [40] As for Dr Oelrichs, Exhibit 7 is a file note of her conversation with the defendants’ counsel and solicitor on 10 March 2015. She, also, stated that she had not seen the notes relating to an initial interview on 28 May 2012 with Ms Holland. After being taken to her report of 6 January 2015 and, specifically, to her response that she said it was possible that, in view of the plaintiff’s sister’s illness and her mother’s dementia, the plaintiff might have resigned from her employment with the Commission even if the motor vehicle accident had not occurred, she concluded that she “believed there was a very significant chance the plaintiff would have resigned in any event”. This was based upon her reading of the records to which she had been taken and her interpretation from them that the plaintiff was “finding it increasingly difficult to cope with these stressors and her work”. On that basis, she concluded that it “was more likely that but for the accident, because of the stressors, the plaintiff would not have been able to continue to manage and cope with work”. She stated, in evidence, that the other stressors going on in the plaintiff’s life “should have been expanded upon (by her)”. In particular, Dr Oelrichs expressed the view that the plaintiff’s anxiety with respect to driving would, by 9 October 2012, have been within the normal range and would not have been impairing her, particularly as on 9 October 2012 the plaintiff had driven to Townsville while on school holidays with no problems. [41] The conclusion that I am driven to reach, despite my own hesitation to so extrapolate, is that both expert psychiatrists have concluded that it is consistent with their opinions that it was non-accident related stressors which led to this resignation. It is, of course, -- 11 of 18 -- 12 not for them to decide the fact of probability, or not. The factor that, in particular, leads me to defer to the experts, despite my own concerns about the possible over interpretation of the medical and other history, is that even Dr Chung concluded that, as a result of the plaintiff’s personality, she had become inflexible in the way she thought and could not cope with not being able to live up to her own excessively high expectations of seeing herself as a high functioning mother to four children, teacher to her children, a capable career woman and being able to cope with studying for a degree, in circumstances where most people at her age “would see these goals as highly unattainable and probably unrealistic”. This “obsessive compulsive personality trait” was a pre-existing condition. What needs to be separately considered is that the “but for” test can be satisfied (e.g. by the “straw that broke the camel’s back”) while the second part of the statutory causation test can fail on Medlin considerations. Hence, I conclude that the accident has not been proved, on balance, to be a material contributing cause to the resignation. [42] I am fortified in the conclusion that I just reached by reference to a discussion by Lord Pearce in Onassis and Calogeropoulos v Vergottis8 (at 431), expressly referred to by the NSW Court of Appeal in Withyman (by his tutor, Glenda Ruth Withyman) v State of New South Wales and Blackburn9: at [65]. In full, that discussion was, in terms used at the time, as follows: “Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the upmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must pay their proper part.” 8 [1968] 2 Lloyd’s Rep 401 9 [2013] NSWCA 10 at [65]. -- 12 of 18 -- 13 Ability to return to work [43] What the plaintiff in this case has, at least, demonstrated is a later willingness to seek work after her resignation on 16 November 2012. [44] Part of the resolution about the ability to work is the extent to which the anxiety, particularly referable to driving, caused by the accident and reflected in the plaintiff’s capacity to drive has continued to have any effect on her ability to undertake work. [45] It is not in dispute that, as I already noted, the plaintiff drove to Townsville on 9 October 2012. What had occurred before that was that Ms Richie had devised a treatment plan and implemented it. She, in an understandable self-congratulatory way, expressed her view that her strategies were working in that the plaintiff was “progressing well” and “was implementing the things that we were discussing”. [46] It was Ms Richie’s further view that, as at 23 January 2014 (based upon recorded notes), the plaintiff “was well and truly able to function within normal limits”, although she thought that “some of the discussions were also around her loss of self- confidence, so that was something that we were addressing in terms of taking on some of those more high level demanding positions”. [47] As for returning to work after her November resignation – which the plaintiff, eventually, did on 12 September 2013 with Phoenix (from which she had resigned on 30 November 2011 to start work with the Commission on 21 November 2011 and which had provided “host employment” from 2 July 2012 to 19 July 2012 after the plaintiff had returned to work on 4 June 2012 in a partial capacity) - an entry of Ms Richie of 31 January 2013 recorded that the plaintiff considered that the motor vehicle symptoms and associated difficulties were “stable” and that she had strategies she needed “to manage any driving anxiety symptoms”. [48] Dr Chung, for his part, in evidence, was of the view that, as of January 2013, the plaintiff had mentioned to him that she was able to drive without anxiety, even though she did avoid driving if she could. Furthermore, Dr Chung admitted that when he provided his report on 27 May 2013 that it was his impression at the time that she would be able to work full-time and be able to drive. [49] Before turning to the opinion expressed by Dr Oelrichs, medical records of late 2012 and early 2013 indicated that, despite some problems from time to time, the plaintiff was then coping with driving and was satisfied with her progress with it. [50] Dr Oelrichs, while still of view that the motor vehicle accident had affected the plaintiff for which she did require some treatment for anxiety about her driving in particular (which appeared “to have been successful”), expressed the further view that she did not think that there was any residual effect from the motor vehicle accident impairing her ability to “return” to work. [51] Before leaving the issue of driving capacity, even Dr Pentis, who opined that the plaintiff did have soft tissue injuries suffered to an area of a pre-existing degeneration in the plaintiff’s cervical spine, thought that the aftermath of that would not affect her ability to drive for work or for social purposes, and that, with that pre-existing condition, she would have needed to be careful with heavy lifting and activities in any event. -- 13 of 18 -- 14 Further resignation in February 2015 [52] On or about 11 February 2015 the plaintiff resigned from Phoenix. On the evidence led, I would not be able to conclude that that was due to any accident-related effect. Past and future capacity to work [53] Since, by January 2013, the plaintiff had applied for her old job back, despite self- expressed concerns, I find she was fit to return to work and, from the finding that I have already made, had been fit for work (insofar as the accident related effects were concerned) on and from 16 November 2012. [54] This conclusion on fitness to work by early 2013 has been supported, by a statement made by the plaintiff to the WorkCover representative, Ms Belither, on 6 February 2013 that the “independent medical examiner” had also told the plaintiff that she had done “really well” – which the plaintiff accepted. She also had reported, at that time, that “most” of the issues around driving had resolved. In Ms Belither’s evidence, when questioned about the use of the word “most”, she stated that the plaintiff had said that she was “probably overly using” the rear vision mirror. [55] Before turning to the extent of any physical impairment that may have remained, Dr Chung was of the view that, by January 2013, if the plaintiff had found “suitable employment”, she probably would have been able to cope with it. He, further, accepted that, in his report on 27 May 2013, he had expressed the view that she would have been able to work full-time. [56] As for Dr Oelrichs, her evidence at trial was that, in the last examination conducted by her in December 2014, the effect of the motor vehicle accident “really was quite residual” in that it was “minimal compared to her other concerns at that time”. In particular, she stated that she did not think that “there was any effect from the motor vehicle accident impairing her ability to return to work”. [57] Dealing, then, with the physical injuries as they related to any working incapacity, as already noted, Dr Pentis, an orthopaedic surgeon, indicated that her only problems were those that may arise when driving “long distances” or if she was doing “a lot of lifting and bending” kinds of activities. [58] Dr Williams, also an orthopaedic surgeon, in his report dated 1 July 2013, stated that the plaintiff could undertake any form of employment for which she was qualified by training and experience. Psychiatric injury [59] Given the extent to which Dr Chung modified his views while giving evidence at trial, and since I find no reason to doubt any conclusion that Dr Oelrichs has reached – particularly when both Dr Chung (in the memo of 27 March 2015) and Dr Oelrich (in cross-examination) expressed the same view that the accident was “the straw that broke the camel’s back” - I intend to make findings with respect to the psychiatric injury, and its sequelae, on the basis of what Dr Oelrichs, in particular, has opined. Dr Oelrichs’ latest written report was that dated 6 January 2015 (Exhibit 8). Some further elucidation was obtained in a telephone conference on 10 March 2015 (the file note of which became Exhibit 7). In summary form, her overall conclusions were that: -- 14 of 18 -- 15  she accepted Dr Chung’s conclusion that, although the diagnosed adjustment disorder (with anxiety and depressive symptoms) had relapsed upon medication reduction and stoppage, that there was a psychiatric impairment of 4% under the PIRS rating, with an “additional” 3% for the need of medication to maintain a level of stability, realising a final WPI of 7%:  the plaintiff had reached a state of stability, having received appropriate psychological counselling and “medication”;  any “significant” ongoing residual symptoms of the adjustment disorder related to current ongoing life stressors;  noting that the plaintiff’s unsuccessful application for her former job at the Commission, notified to her in April 2013 would have contributed significantly to an exacerbation of her symptoms then, there had been also “more” work related dissatisfaction, which was impacting upon her feelings of depression and also reports of ongoing pain and symptomatology;  the plaintiff was still presenting with symptoms consistent with a DSM-IV TR diagnosis of an adjustment disorder with depressed and anxious mood which was chronic, although this was now secondary to ongoing emotional dissatisfaction with her current workplace and ongoing physical symptomatology; and  she continued to have mild residual symptoms for which no further treatment was indicated “in relation to the motor vehicle accident”, although, in relation to external factors, “further treatment” would be beneficial. Physical injuries [60] In the conflict between Dr Williams and Dr Pentis in their orthopaedic diagnoses and prognoses, I prefer those of Dr Williams if only because he has continued to be in clinical practice (in contrast to Dr Pentis’ last engagement in at least 1994), has had regard to the AMA 5 Guide (used by his peers), and used an inclinometer (noting that Dr Pentis did agree that use of the scale as Dr Williams did would lead to the assessment Dr Williams had made). [61] Dr Williams, in his report dated 11 July 2013 (Exhibit 5), diagnosed the physical injury as a musculo-ligamentous injury of the cervical spine with associated headaches. His prognosis was for the resolution of symptoms which “as per the majority of similar cases” would generally resolve within the period of three months. In his evidence at trial, while he accepted that it would be a permanent problem if there were really quite different headaches in a different location from before the accident which had persisted for three years, stated he was not able to establish that she had “a permanent impairment” within the methodology dictated by AMA 5. See, in particular, s 12(2) of the CLR for the relevance of that assessment. When pressed, he stated that the two issues of disability and impairment were being confused and used the analogy of two people who lose the tip of their little finger, where they would have the same impairment but, if one was a brick layer, the disability would differ substantially due to their occupational requirements. With respect to the use of the digital inclinometer, he considered that to be a reasonably accurate method for the measurement of the range of motion of the cervical spine. The use of it showed no measurable asymmetry, being within normal limits. This led to his conclusion that there was “no” whole person impairment, despite the continuing headaches. -- 15 of 18 -- 16 Assessment of injury under CLA [62] Accepting the opinions expressed by Dr Oelrichs and Dr Williams and using the relevant tables in the CLR, I find that there is a moderate mental disorder, falling under Item 12 of Schedule 4, with ISV Range of 2-10 (where the Example is of a mental disorder with a PIRS rating of between 4% and 10%). [63] I accept that the dominant injury is clearly the moderate mental disorder. Even taking into consideration the multiple injuries, because the whole physical impairment assessed by Dr Williams is zero, applying s 2 and s 3 of the CLR, the appropriate ISV in the circumstances is 7. This gives a sum of $9,000.00 (under Schedule 6A for the relevant period). Past economic loss [64] I have already identified the times of work up until the date of trial. I have also accepted, on balance, that the resignation on 16 November 2012 was not causally related to the liability accepted by the defendants. [65] I have determined that the average loss of wages for the period from 21 May 2012 to 16 November 2012 was $534.00 per week [(based upon the analysis done by the defendants in their written submissions using, as a baseline, the plaintiff’s 2012 Income Tax Return (Exhibit 18)] [66] As the actual income earned by the plaintiff was $2,087.00, the loss, before any discounting, would be $11,263.00. [67] Because of the findings that I have made concerning the non-accident stressors in the plaintiff’s life, no discount should apply on Malec v JC Hutton principles (for the reasons that there has been insufficient evidence to cross the threshold discussed in Medlin: see Allianz Australia Insurance Ltd v McCarthy10 at [49]). As analysed, the liability has not been proved to be a contributing cause, either direct or indirect, to that intervening decision to resign – and therefore, the consequences of attempts of return to work afterwards – or any ongoing inability to obtain work after January 2013. [68] Interest on such past economic loss, based on the average of the statutory rate (being 3.59% per annum) for 2.75 years (being from the mean of the weeks over which the loss was suffered to judgment) is $111.94. That interest rate of 3.59% per annum, using the formula mandated by the “example” under s 60(3) of the CLA, for special damages (excluding WorkCover expenses) yields $18.21. [69] Any loss after 16 November 2012 has resulted from the plaintiff’s own choices, particularly in light of the conclusions that I have reached about both her capacity to drive (though with assistance from the program fashioned for her) and her capacity to undertake work generally, there being no evidence of extremely long car trips (for which she could not take appropriate breaks) or significant lifting or bending. [70] Accordingly, no further amount will be allowed for past economic loss. 10 [2013] 1 Qd R 503 -- 16 of 18 -- 17 Future economic loss [71] The circumstances of this case draw in, for possible application, s 55 of the CLA. It deals with the circumstance when earnings cannot be precisely calculated. [72] That provision was examined in Allianz by White JA. She observed that the provision applies only if the court is satisfied if the person injured “will suffer loss and damage”, noting that it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms (being characterised as “the diminution of … earning capacity (that) is or may be productive of financial loss”): at [47]-[49]. Consistently with those principles, in a trial such as this (where it is not been proved that the plaintiff has either lost employment or, in seeking employment, has reasonably rejected work because of the ongoing effects of the injury), there is a failure to establish that there is any real prospect of such a diminution of earning capacity. [73] Thus, as in this case on my acceptance of the relevant medical evidence that the plaintiff has no impairment of her working capacity by any accident-related consequence of injury, there is no principled basis upon which to conclude that there is any future economic loss. Loss of capacity to develop other careers [74] The plaintiff gave evidence that she had enrolled in a Diploma course on 15 October 2008. She asserted that she intended to complete that course and that that would permit her to pursue a career as a child counsellor and guidance officer. [75] The evidence at trial showed that she had only completed one unit of that course; and that was in 2009. This was despite the fact that she obtained the course materials by October 2008. When she started work with the Commission in 2011, where I accept that she had greater flexibility to study, she did not undertake any further units or even do any work in relation to that course. [76] Given the other conclusions that I have reached about the plaintiff’s stressors other than that which flowed from the motor vehicle accident, it is not possible to draw any causal relationship between such injuries that I have found did result from the accident and any prevention of the plaintiff which obstructed her from completing the course and engaging in work which would result from such a qualification. [77] Hence, I have determined that there is no loss established by the plaintiff with respect to income that might be earned were she to have completed that course. Even if Malec v JC Hutton principles were applicable, the likelihood would be only “speculative”. Summary of damages [78] I find that the following heads of damage have been suffered: Head of damages Amount 1. General damages $9,000.00 2. Special damages $16,501.93 -- 17 of 18 -- 18 3. Interest on special damages $18.21 4. Past economic loss $11,263.00 5. Superannuation at 9% $1,013.67 6. Interest on past economic loss $111.94 7. Fox v Wood damages $5,481.00 8. Future special damages $4,000.00 TOTAL $47,389.75 [79] I accept with respect to those future special damages the defendants’ submission that, while the plaintiff gave some evidence about the medication which she was taking, the evidence did not detail when, how much or at what cost per taken dosage. The only continuing medications which are common to the plaintiff’s evidence, Exhibit 21, and Dr Chung’s reports and Dr Williams’ evidence are “Sertraline” and headache medication. Furthermore, Exhibit 21 (which contained admitted past special damages) did not, I conclude, establish any precise basis for any future medication costs. Therefore, a global estimate has been determined. Outcome [80] Because of the conclusions I have reached, there will be judgment for the plaintiff against the defendants; but the terms will be subject of short minutes to be filed by the parties. [81] I will reserve the matter of costs in the order that I make. -- 18 of 18 --