Boulter v Crouch & Anor [2010] QSC 258

SUPREME COURT OF QUEENSLAND CITATION: Boulter v Crouch & Anor [2010] QSC 258 PARTIES: ISABEL ELIZABETH BOULTER (plaintiff) v MICHAEL CROUCH (first defendant) AND NICOL ROBINSON HALLETTS LAWYERS (second defendant) FILE NO/S: SC No 8481 of 2007 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 July 2010 DELIVERED AT: Brisbane HEARING DATE: 31 March – 1 April 2010 JUDGE: Atkinson J ORDER: The plaintiff’s claim is dismissed. CATCHWORDS: TORTS – NEGLIGENCE – GENERAL MATTERS – where plaintiff was injured in an accident involving a council bus – where plaintiff sued her former lawyers for their negligence in failing to commence a personal injury claim within the statutory limitation period – where defendants admitted that the plaintiff’s claim for damages in respect of her personal injury would have succeeded – where the issue in dispute was the quantum of damages that the plaintiff would have been awarded had the proceedings commenced in time COUNSEL: The plaintiff appeared for herself J Wiltshire for the defendants SOLICITORS: The plaintiff appeared on her own behalf Brian Bartley & Associates for the defendants [1] The plaintiff, Isabel Boulter, sued her former lawyers for their negligence in failing to commence a claim for damages for personal injuries within the statutory limitation period. The defendants admitted that her claim for damages in respect of her personal injury was likely to have succeeded on liability and that they failed to commence proceedings in respect of that claim within the limitation period. What -- 1 of 25 -- 2 is in dispute between the parties is the quantum of damages that she was likely to have received if the defendants had not breached their retainer and had commenced legal proceedings within time. It is admitted that that is the quantum of damages that she should be awarded in this matter. [2] In order to determine the quantum of damages that Ms Boulter would have received for her personal injury claim, and thus the quantum of her loss in this claim, it is necessary to detail the subject matter of the claim for personal injuries and the quantum of damages she would have received had that claim been commenced within the statutory limitation period and been resolved in a timely manner, probably by late 2002 or early 2003. Because the accident, the subject of her claim, occurred in September 1998 it would not have been subject to the provisions of the Personal Injuries Proceedings Act 2002 and the Civil Liability Act 2003. [3] As was admitted by the defendants, Ms Boulter was injured in an accident involving a Brisbane City Council bus (“the bus”) on 26 September 1998 (“the bus accident”). The bus accident occurred when Ms Boulter was boarding a bus from her home at Bellbowrie to Kenmore. The front doors closed on her, catching her head between the doors, and when the doors opened and she freed her head from the doors she fell out of the bus and onto the ground. The defendants accept that the accident as alleged occurred, that the Brisbane City Council would have been wholly liable in negligence for the accident and that there was no contributory negligence on Ms Boulter’s part. Liability was admitted by the Brisbane City Council’s insurer on 22 April 1999. [4] Ms Boulter’s account of the incident in her evidence was that she was on her way to a dental appointment, boarding a bus with the assistance of her walking stick with one foot on the bus step and one on the ground, when the front doors shut hitting her on each side of the head. She was frightened that the bus would depart with her head stuck in the doors. She pulled back as the doors opened and she fell heavily onto the footpath on her buttocks. When cross-examined, she asserted that as well as falling backwards onto her buttocks she hit the side of her right knee. Another passenger who had been a nurse assisted her and she got back on the bus to go to see the dentist. She said the effect on her of the bus accident was headache, neck and jaw pain, jaw and ear clicking, and pain in her shoulder, chest, back and knees. She developed a dry cough. She found sexual intercourse painful. She suffered nightmares and flashbacks. She lost the capacity to garden and engage in other work and leisure activities. The pain has stayed constant, she says, in the 12 years since it happened. [5] Ms Boulter acted for herself and any difficulty in assessing her damages arises from a number of factors. She had a number of pre-existing conditions. She also suffered from incidents and circumstances both prior to and after the bus accident which caused her both physical injury and mental anguish for which the defendants were not responsible. Additionally she was an unreliable historian and witness. Injuries caused by other accidents [6] Before the bus accident, the plaintiff was injured in an incident in the car park of a shopping centre in Kenmore on 29 January 1998. Her injuries occurred as a result of a reversing car hitting her (“the car park accident”). Ms Boulter retained the defendants to act for her in a personal injury claim in respect of the car park -- 2 of 25 -- 3 accident. Judgment was entered for her by consent in the Magistrates Court for $25,000 plus Magistrates Court costs in May 2001. [7] Various allegations were made by Ms Boulter in her statement of claim about the defendants in relation to the claim for the car park accident; however, she sought relief only in relation to the defendants’ actions or omissions relating to her compensation claim with regard to the bus accident. The relevance of the car park accident is therefore limited to determining what pre-existing injuries she had before the bus accident and what was compensated for by the judgment relating to the car park accident which cannot, of course, be the subject of further compensation. [8] Ms Boulter gave evidence about the injuries she suffered as a result of the car park accident at the trial in relation to that accident in the Magistrates Court in May 2001. She said that as a result of the car park accident she suffered from a swollen throat, neck and head. She could hardly swallow and had difficulty breathing. She had nightmares. She had a grinding sensation of bone on bone in her lower back and thoracic spine. She could not put down her right foot and had to rely on her left leg. She suffered from a bleeding bowel because of severe constipation caused by the medications she was taking. Her tailbone felt like it was broken. She could not sit. She could not stand up or walk for long. She had difficulty sleeping and felt like she had a knife digging into her lower back. She said the symptoms and pain had only diminished a little between the car park accident and the trial in May 2001. When asked about the effect of the bus accident on her compared with the car park accident, her evidence in the Magistrates Court was: “The worse one is the – the – the ever worse ever happen – the worse one is the car that has slammed onto my back that I carried away on that car. Press down on my lower back. That’s the worse ever happened to my life.” This is consistent with instructions she gave to her then solicitors by letter dated 10 March 1999 that the car park accident rather than the bus accident was the primary cause of her injuries. [9] In the trial in the Supreme Court, Ms Boulter asserted that her symptoms improved and she was “fine to go back to work” after the car park accident and before the bus accident. When confronted by what she had said about the car park accident she asserted that the bus accident was “worse as well, worst”. The change in her evidence was due to her desire to emphasise in the trial in the Magistrates Court the comparative seriousness of the injury suffered as a result of the car park accident, which was the incident over which she was suing in that court, and her desire in this court to emphasise the comparative seriousness of the injury suffered in the bus accident, which was the incident which was the basis of her suit in this court. This led her to exaggerating in this court the seriousness of the injury said to have been suffered in the bus accident while trying to minimise the seriousness of the injury said to have been suffered in the car park accident. This tailoring of evidence was designed to maximise the compensation which she sought to be awarded and made her an unsatisfactory and unreliable witness. [10] Ms Boulter was also injured in a single vehicle motor vehicle accident on 17 December 1998 when she failed to apply the brakes while she was driving through a roundabout at Kenmore and, as a result, the vehicle she was driving collided with a bus shelter and the motor vehicle behind the bus shelter (“the bus shelter accident”). -- 3 of 25 -- 4 [11] Ms Boulter was apparently injured in another motor vehicle accident on 28 July 2000 (“the July accident 2000”).1 She described that accident to Dr Peter Steadman, 2 orthopaedic surgeon, as follows: “On 28 July 2000 she said she was driving to Corinda. She said she was struck from behind in her 1974 BMW 525. It had a headrest and a seatbelt without airbags. She said she hit the dashboard and describes an acceleration and deceleration pattern. She said she did not get a cut on the forehead. She said her neck swelled up immediately and she attended the local doctor the same day. She went on to develop headaches. She went to physiotherapy and a chiropractor. She saw a neurosurgeon at the Princess Alexandra Hospital, and subsequently saw Dr. Geoff Askin and Dr Gary Nielson, Orthopaedic Surgeons. She said she had an x-ray and physiotherapy, an MRI, bone scan and plain x-rays. She thinks she saw them one month ago but cannot recall. …” [12] She told Dr Steadman that as a result she had symptoms over her whole body with low back pain, knee pain, headaches and flashing lights before her eyes and anterior chest pain. She said her symptoms had not changed at all since the July 2000 accident. The only abnormality shown on x-rays was her disc prolapse in the lumbar spine which is the degenerative change already noted. She told Dr Steadman that she had become more functionally impaired since the July 2000 accident. [13] She told the ophthalmologist Dr. Lawrence Lee that she tripped over a hole in the pavement and fell on her face in May 2004 (“the footpath accident”). The plaintiff’s condition at the time of the bus accident [14] Isabel Boulter was born in a rural area of the Philippines on 4 October 1951. As she reported to the psychiatrist Dr Persley, her mother died when she was 11 years old. The local people had referred to her mother as being a witch. She believed this was because her mother had glaucoma. Her mother died of pneumonia. She had limited education and engaged in unskilled work. She migrated to Australia in 1978 with her Australian husband. They had twins together but were divorced after one year because of his abuse. [15] Ms Boulter was 46 years old at the time of the bus accident. She was only 125cm tall. She was married with five children. She lived with her husband of 15 years, Peter Boulter, and their 15 year old son. Peter Boulter had been unemployed for five years and according to what Ms Boulter told Dr Rice, was seeking a disability pension. By other accounts he had been a disability pensioner for some time. [16] Ms Boulter was not in paid employment from 1978 until late 1996. She is now 58 years old. She is in receipt of a disability support pension from the Commonwealth government. Between June and August 1995, she undertook various word processing and office skills courses but has never worked in an office. [17] She told Dr Cooke, an orthopaedic surgeon whom she attended for treatment, that she and her husband were interested in returning to the Philippines once they “got 1 See opinion of KR Geraghty at C-141 of Exhibit 2. 2 Report by Dr Steadman 26 February 2001, Exhibit 19. -- 4 of 25 -- 5 some money”. Her husband, Peter Boulter, told Dr Rice that he had a goal “to get an income, go to the Philippines, purchase a small house and live there.” He was at that time seeking compensation for loss of “conjugal rights” as a result of the car park accident. [18] At the time of the bus accident Ms Boulter had a 26 year old son and a 22 year old daughter living in the Philippines and 19 year old twin girls to her first Australian husband and a 15 year old son to her second Australian husband. She told her general practitioner, Dr Loth, that her three daughters had been taken into custody by the Department of Children’s Services in about 1992. She was accused of physical abuse and her husband, Peter and son, Edwin, of sexual abuse. She gave evidence that she took the Department to court and regained custody of the children because, she said, she had been unaware of the sexual abuse. However in 2001, Peter Boulter was imprisoned after allegations were made by her daughter of his sexually abusing her when she was a child. She denied any knowledge of the cause of his imprisonment because she was “outside during the hearing”. [19] It appears that she suffered from Type 2 diabetes at the time of the bus accident. She denied that she suffered from that condition from 1998, in spite of that being written as part of her medical history in a draft statement of loss and damage signed by her on 2 October 2008. At her trial she said that her husband had written that document to assist her but admitted she signed it. She asserted that she did not suffer from diabetes until 2005. [20] Dr Cooke said that prior to any accident, Ms Boulter was afflicted with degenerative spondylotic osteoarthrosic changes involving the L5/S1 segment. She told Dr Cooke that she suffered no symptoms referrable to her lower back prior to the accidents. Dr Cooke reported that this is not an uncommon situation because as people age and reduce their physical activities, they make less physical demands on their degenerating segment or segments while the degenerative change progresses in parallel causing little in the way of symptoms. [21] After the car park accident on 29 January 1998, Ms Boulter attended her general practitioner Dr Garry Buchan-Hepburn at the Kenmore Family Medical Practice who told her she was suffering from severe bruising and should rest at home. He said that his examination revealed she was walking normally and had a full normal range of spinal movements but was tender over the right iliac crest and lumbar spine. He ordered her to rest and apply ice packs. [22] Dr Stokes, who is also a doctor at the Kenmore Family Medical Practice, saw Ms Boulter on 3 February 1998 when she complained of a lot of tenderness of the right lower chest, the right side of the back and the right sacroiliac area. She appeared to be tender in those areas on examination so Dr Stokes prescribed anti-inflammatory drugs and analgesics and arranged an x-ray. Dr Stokes saw her with a normal x-ray on 9 February 1998 and Ms Boulter said she was feeling better. [23] Dr Buchan-Hepburn next saw Ms Boulter for this on 12 February 1998 when she complained of a clicking spine and tenderness and was injected with a steroid. She was given an exercise sheet for home physiotherapy. She subsequently received physiotherapy from Ms Denise Elkins and chiropractic treatment from Dr John Loveday. -- 5 of 25 -- 6 [24] On 18 February 1998 Ms Boulter and her husband attended Dr Stokes complaining that she had an episode of bed wetting. She enquired whether the car park accident had weakened her bladder muscle. Dr Stokes told her that was impossible. She complained of many more symptoms: sore knees, sore lumbar spine and coccyx, painful pelvis making intercourse impossible, and painful lower right ribs causing shortness of breath. Dr Stokes noted that she was “amazed at the sudden increase in number and severity of symptoms”. She observed that Ms Boulter was walking hunched and seemed unable to bend but nevertheless when she was explaining how the accident happened she was able to demonstrate with full, apparently painless, back movements. [25] Dr Stokes said she saw her again on 20 February, 27 February and 9 March 1998 and each time there was an increasing “array of symptoms” which Dr Stokes found hard to attribute to the car park accident. Dr Stokes said there was no sign of those symptoms resolving and that she suspected that while the compensation case loomed her symptoms might not readily settle. [26] At the same time Ms Boulter was attending the general practitioner, Dr Loth, in relation to her increasing symptomatology. In spite of seeing him often, before and after the bus accident, she did not mention it to him until January 1999. The symptoms she ascribed to the car park incident were dramatic and increased as time went on. [27] Ms Elkins provided a report that said that Ms Boulter was referred for physiotherapy by Dr Stokes on 13 February 1998 and presented for treatment on 23 February 1998. An x-ray report stated there were no adverse findings. There was no visible bruising from the car park accident but Ms Elkins noted tenderness on palpation of the right anterior lower ribs and posterior right upper lower thigh and ischial tuberosity. She complained of pain and clicking when asked to bend forwards, backwards and sideways in standing but could move through three- quarters of the normal range in the neck and spine. When lying down her straight leg raising was restricted in the right leg to 65 degrees and produced pain in the right hip and knee. Straight leg raising on the left side was 80 degrees pain free. Ms Boulter told her that there was pain in her symphysis pubis and that she could only sit on the right buttock when driving. Ms Elkins noted that the symphysis pubis looked uneven in the x-ray. Ms Boulter told Ms Elkins that she had difficulty sleeping on the right side and experienced pain in the right ribs on straining leading to constipation after the injury. Ms Elkins said that sometimes she reported improvement after treatment but she continued to mention clicking in the neck, back, hips and knees and weakness in the right leg leading to difficulty for example in mounting bus steps. [28] Ms Elkins used electro therapy to reduce pain and inflammation as well as mobilisation, massage and exercise to increase strength and flexibility. On 14 April 1998 gentle lumbar traction was used after Ms Boulter complained of numbness in her right leg for the first time on that date. Ms Elkins reported that Dr Stokes referred Ms Boulter to a chiropractor on 12 March 1998 and she continued to present for physiotherapy as well as undergoing chiropractic treatment twice a week. She started using a walking stick on 21 April 1998 and said that she felt her right leg would give way. Ms Elkins also said that Ms Boulter complained of intermittent dizziness and headaches especially in elevators. On 8 August 1998 she said she had been to a psychiatrist to help her to cope mentally. Ms Elkins said that -- 6 of 25 -- 7 she told her about the bus accident in September 1998 and the bus shelter accident in December 1998. [29] Ms Elkins appears to have treated Ms Boulter twice in February 1998, twice in March 1998, once in April 1998, once in June 1998, twice in August 1998, once in September 1998, twice in December 1998, once in May 1999, once in December 1999, once in November 2000, once in January 2001 and once in April 2001. The cost of treatment was $654. Ms Elkins had not seen Ms Boulter since 3 April 2001. She said that Ms Boulter did not admit to any pre-existing symptoms prior to the car park accident. She opined: “It seems this incident did set off a chain of physical and emotional problems which caused her significant suffering and expense.” [30] All of the physiotherapy given by Ms Elkins as well as the chiropractic treatment can be attributed to the car park accident. [31] Ms Boulter informed Dr Cooke that she was pushing a loaded shopping trolley through the Kenmore Village Shopping Centre car park towards her car after leaving Woolworths. A nearby parked car reversed out from behind, striking her initially below the backs of her knees with its bumper bar and then, as her knees buckled, the boot struck her buttocks, squashing her forwards against the handle of the trolley with the right lower rib cage absorbing much of the force as it struck the handle of the trolley. She retained her grip on the handle of the trolley and did not fall. The impact caused severe lower back pain radiating into her buttocks and some five minutes later she collapsed to the ground landing on her buttocks. She told him that her husband helped her to her feet as she had difficulty in standing on her right lower limb because of pain. She also felt as though her coccyx were out. Her husband helped to unload the shopping trolley into her car and then took her to a general practitioner. [32] She told Dr Cooke that the following morning she had difficulty rising from her bed because of many symptoms of neck pain, right chest pain, left pelvic pain, pain on standing on her right lower limb and difficulty in breathing because of the pain in her right chest. When she started walking, she said, the left side of her pelvis crunched as did her spine. She also felt some swelling developing through her shoulder blades and increased difficulty in her swallowing. She again consulted Dr Buchan-Hepburn who, she said, treated her with laser acupuncture and analgesics but these measures proved ineffective. [33] Dr Cooke reported that she was subsequently referred to the orthopaedic department of the Royal Brisbane Hospital where she was reviewed by the orthopaedic registrar, Dr. Hugh English, or his consultant, Dr Ganko. She was also reviewed by two orthopaedic surgeons in private practice, Dr Johnstone and Dr White, and a psychiatrist specialising in pain management, Dr Graham Rice. Dr Cooke concluded: “The net result of these various consultations was that there was no apparent organic cause for her various symptoms found. It was the collective view that Mrs Boulter was in effect seeking out dollars to cure her psychological illness.” [34] Dr Cooke was of the opinion that as Ms Boulter remained upright on and following the impact, that would suggest that the impact was of low velocity and the driver -- 7 of 25 -- 8 could not have been travelling at the 15 km per hour estimated by Ms Boulter. Dr Cooke gave examples of what would have happened to Ms Boulter had the vehicle been travelling any faster than “barely moving” and given that none of those events occurred he deduced that the vehicle was barely moving when it struck Ms Boulter. He said that her many symptoms have been shown on clinical and radiological investigations to have no organic basis. [35] Ms Boulter informed Dr Greg Gillett, an orthopaedic surgeon, that after the car park accident she suffered severe headaches, visual disturbances, and neck and heel pain. She told him that the car park accident was worse than the bus accident. At the trial of this proceeding she falsely said she could not recall telling him that. This denial was disingenuous. At this trial she wished to emphasise the comparative seriousness of the bus accident; whereas when she saw Dr Gillett she wished to emphasis the comparative seriousness of the car park accident. She told Dr Gillett that from the car park accident she had persistent ongoing severe headaches, flashing lights in her visual field, neck pain, shoulder pain and shoulder blade pain. She had chest pain so that she could not breathe at times. She had pain in her lumbosacral spine and pelvis which was constant and her back gave way. She had pain down her legs associated with knee and heel pain. She had difficulty walking. She felt at times that her coccyx was out of joint. She had troubles with her left elbow and had bowel disturbance associated with bleeding. She had difficulty walking and used crutches. She had sudden weakness associated with collapsing when her back gave way. [36] Plain radiographs of her lumbosacral spine taken on 6 February 1998 showed no abnormality beyond some facet degeneration. Plain x-rays taken on the same day of her pelvis showed no factures, no osteoarthritis and some degeneration of the pubis. A further x-ray of the pelvis on 18 February 1998 was to similar effect. X-rays taken on the same day of her ribs showed no factures and a chest x-ray was normal. [37] Dr Gillett expressed the opinion that Ms Boulter suffered a soft tissue injury involving the lumbar spine and chest and probably the neck. She then had treatment which would be regarded as appropriate for this injury and appeared to have developed psychological sequelae from the accident. Dr Gillett said that from an orthopaedic perspective it would be reasonable to suggest that in the car park accident she had a minor musculoligamentous strain to her lumbar spine associated with aggravation of her pre-existing degeneration. In relation to her cervical spine again it was a minor musculoligamentous injury. [38] Dr Hugh English, on behalf of Dr A Ganko, wrote a report on Ms Boulter on 4 February 1999. The report concerned only the injuries of which she complained from the car park accident. He referred to her numerous symptoms described to him by her. He included the observation that she did all the shopping but had difficulty performing the house work. He reported that she told him that her husband was currently leaving home as he was unable to cope with the marital stress secondary to her disability. [39] On examination he found her to be obese, walking with a stooped gait with her hand on her back and a straight spine. She was able to heel and toe walk, to flex and touch her shins, to extend 50 per cent, and bend laterally to touch her knees. She could bilateral straight leg raise to 70 degrees. Her hips were normal with a full range of movement. Her knees were normal with no effusion, synovitis nor patellar -- 8 of 25 -- 9 tracking. She had stable ligaments and her shoulders had a full range of motion with no exacerbation of the pain. She had grade 5 power and reflexes in her lower limbs. Her abdominal reflexes were not demonstrable secondary to obesity. She had no evidence of clonus. She claimed a sensory change from the umbilical down but no sensory loss. [40] He ordered an MRI scan to exclude the unlikely prospect of a cord problem. He did not think there was any indication for arthroscopy of her knees or further management of her shoulder. He told her that she needed to undertake regular light exercise, lose weight and improve her general fitness. He thought she would benefit from psychological input to assist her with dealing with her problem. [41] Ms Boulter attended the Orthopaedic outpatients clinic at the Princess Alexandra Hospital on 24 May 2000 where she said that she had suffered from neck, back and knee pain ever since the car park accident. The report from that hospital does not refer to her mentioning the bus accident or the April 2000 accident at all. Her evidence was that she walked with the assistance of a walking stick after the car park accident. [42] Ms Boulter was seen three times by Dr Graham Rice, an anaesthetist, psychiatrist and pain management specialist. She was referred to him by Dr Peter Loth, a general practitioner at Corinda. Dr Rice provided a report to Dr Loth on 3 September 1998 and to solicitors on 7 September 1998, before the bus accident. [43] His diagnosis was that she did not suffer from a medical disorder nor did she suffer from a psychiatric disorder. Her disorder was a social one in which she believed she had injuries caused by an accident for which she is claiming compensation. She needed to remain sick in order to have a basis for a claim. [44] In his opinion the compensation claim was the cause of the maintenance of her behaviour, the consequences of which included frustration, agitation, and loss of fitness with soreness upon reuse which was misinterpreted as pain. Her physical and psychological symptomatology was consequential to, rather than prolonged or altered by, litigation. The findings at orthopaedic and radiological examination demonstrated that all her complaints and physical changes were pre-existing and could not have been caused by the car park accident. [45] Dr Rice’s opinion given to the solicitor was expressed in the following terms: “46 year old lady with age and work history related degenerative changes to her spine and knees who sustained minor soft tissue injuries after being hit by a car that was beginning to reverse from a parking place. This has resulted in False Imputation that all her physical and psychological difficulties are related to this incident. The subsequent exaggerated pain behaviour further compounds the inevitable loss of fitness and function resulting from that behaviour (eg using a stick and not returning to normal function). Medical treatment, supportive only, and medication must be kept to a minimum. Her presentation in a dramatic and histrionic manner is consistent with personality structure, her belief that she has been severely injured in this incident, and her claim for compensation. -- 9 of 25 -- 10 It is my opinion that she is Falsely Imputting all her aches, pains and psychological distress on this episode rather than dealing with the issues in her life that are aetiological (age, degeneration, personality structure, personal life events). Other facts which reinforce her pain behaviour may include the ‘competition for the sick role’ at home with her husband being off work for so long, the stressors of domicile with his preferring to return to the Philippines to live, but their needing funds to do so. There is also a conscious component to her maintenance of her symptoms. There is no medical treatment we can offer, because whilst we are aiming to have her symptom free, this is something she cannot afford to do. Thus it is reasonable to conclude that she is in the patient role not to receive health care but to justify her claim.” [46] Dr Gary Persley, a consultant psychiatrist, saw Ms Boulter on a monthly basis on referral from Dr Loth. He gave his opinion only in relation to the effect of the car park accident. There is no mention of the bus accident. His report dated 26 November 1998 concludes as follows: “In summary, this lady is displaying abnormal illness behaviour. She is exaggerating the degree of pain and disability that she has experienced from a motor vehicle accident in a car park. There is little doubt that the exacerbation of her complaints is at least partly motivated by compensation issues. From another view point, she has an unsophisticated view of the illness and is hypochondriacal in her description of the experience of her body. She may be predisposed from an academic view point to an elaboration of illness in view of her death of her mother when she was 11 years of age and also the description by her mother by locals as being a witch. I unfortunately do not feel that I have much to offer in the management of this case. I have suggested an increase in Aurorix from 150 to 300mg twice daily in an attempt to alleviate some of her anxiety. She continues to use Panadene Forte 1TES PRN, Mogodon ½ tablet nocte and Duromine for weight loss.” Treatment after the bus accident [47] After the bus accident on 26 September 1998, the plaintiff first attended at her previously scheduled dental appointment and then attended a general practitioner, Dr Chris Andrews, complaining of pain in her neck and jaw. In oral evidence she said she was unable to open her mouth. However, the contemporaneous evidence by the doctor and the dentist shows they were able to examine her mouth without difficulty. A report from Dr Andrews shows that his records indicate: “You presented to us at 11-15am on 26 September 1998. The history you gave was that you were at the entrance steps of a BCC bus at 10- -- 10 of 25 -- 11 10am that day and the doors closed catching you between them. You stated that there was pain on the L side of the jaw and neck. On examination, the oral cavity was normal, and the mandible and its angle felt normal. Ears were normal and the skull and temporal fossa were normal. An XRay of the jaw was undertaken and this was normal. Bruising and soft tissue was diagnosed and this was expected to resolve quickly. You returned on 29 September 1998, stating that you had fallen backwards onto the buttocks at the same time. You advised us of two previous injuries to your back and knees in which you had been bumped by a trolley and also a car reversing. Legal action for these was in process. You advised us that your back had become somewhat sorer since the bus incident. On examination there was soreness in the coccyx up to the sacrum and low lumbar region, including the R sacro-iliac joint. You had found Chiropractic and Physiotherapy satisfactory and wanted referral to Dr Peter Johnstone. This was provided. You also wanted an XRay of the knees and a form was provided for this. I can find no record of the result. I considered your pain to be a result of a flareup of osteo-arthritis which should settle in short order and required minimal treatment. I note agreement in this from others since.” [48] The report of the x-ray performed on 26 September 1998 says “No abnormality is seen in the mandible or maxilla.” [49] The Brisbane City Council offered to pay for counselling for her and she attended five to six sessions of counselling paid for by the Council. X-rays and scans [50] X-rays of both knees taken on 2 October 1998 revealed no abnormality. A whole body scan of 12 October 1998 showed an increased uptake in the right posterior aspect of L5 which might have represented pars interarticularis stress fractures. No other abnormalities were found. However, the CT scan taken on 20 October 1998 at the L4/5 and S1 level showed facet joint degeneration with no evidence of pars defects. There was no disc protrusion or sign of stress fracture although there was quite severe degenerative change. No other pathology was found. An MRI scan taken at the Royal Brisbane Hospital in February-March 1999 showed no significant bony disc or cord injury or pathology. There was degenerative change at L1/2 and 4/5 in the lumbar sacral spine. An MRI scan performed at Princess Alexandra Hospital on 8 November 2000 also showed L4/5 stenosis. [51] Ms Boulter alleges that a number of tests were carried out on her in 2004. A report of those by a radiologist has a date of 4 June 2004 handwritten on it although there is no evidence as to who wrote that date on the report. It reports on a CT of the brain and cervical spine, an ultrasound of the left shoulder and x-ray lumbosacral spine and both hips. [52] The CT of the brain and cervical spine showed that the brain was normal. The cervical spine demonstrated normal alignment, without evidence of a fracture of subluxation or significant degenerative or inflammatory change. An x-ray of the -- 11 of 25 -- 12 lumbosacral spine showed that the vertebral body and disc heights were preserved. There was no evidence of spondylolysis or spondylolisthesis. There was no sign of an acute fracture or subluxation or significant degenerative change. An x-ray of her pelvis and hips showed that both hips had normal alignment with no sign of a fracture, subluxation or significant degenerative change to account for the symptoms that she said she was experiencing. An ultrasound of her left shoulder showed no abnormality apart from some increased fluid on the acromioclavicular joint. A plain film evaluation of that joint was performed demonstrating normal coracoclavicular and acromioclavicular distances on normal and stressed views. Orthopaedic injuries [53] On 19 December 1998 Dr Peter Johnstone, an orthopaedic surgeon whom Ms Boulter saw for treatment, gave his opinion that her symptoms were due to an aggravation of pre-existing L5/S1 degenerative disc disease. He said that she had markedly severe L5/S1 degenerative disc disease and in particular facet joint arthritis which preceded both the car park accident and the bus accident. He said that the bone scan finding of markedly increased uptake in the right L5 posterior elements have been clarified by CT scan as being due to severe degeneration in the apophyseal joints bilaterally at L5/S1. He said that that did not indicate that there was any type of stress fracture or pars intra-articularis defect. In his opinion her symptoms could have easily been brought on by a simple fall, slip or bending over to pick up an object as opposed to the car park accident or the bus accident. He asked the orthotics department at the Princess Alexandra Hospital to supply her with a lumbosacral brace for “L5/S1 facet degeneration and pain.” [54] Dr Johnstone was also of the opinion that Ms Boulter had a significant and marked non-organic response to her injuries and that in view of that it was not appropriate than any sort of surgical intervention should be contemplated. She was therefore required to continue with non-operative management such as analgesia, physiotherapy or pain clinic management. [55] In a telephone call with a solicitor on 7 January 1999 Dr Johnstone said that Ms Boulter had very severe arthritis before either of the accidents which she said was asymptomatic. He said that if it had not been for the accidents then he would have expected her to be suffering symptoms within five years although it was difficult to be precise. While he said it was impossible for him to differentiate between which accident had caused how much of the onset of her symptoms, he expected that a vehicle backing in a car park would not be travelling very fast and therefore it was more likely that the bus accident was the cause of her symptoms than the car park accident. He was not able to say whether Ms Boulter was feigning symptoms or whether she was suffering much more significant symptoms because of “cultural, emotional and psychological” factors. [56] She was referred to the Pain Clinic at the Royal Brisbane Hospital. Dr Tess Crammond did not accept her into the clinic for treatment. She suggested that Ms Boulter obtain “psychology support”. [57] When the orthopaedic surgeon Dr Cooke first saw Ms Boulter on 23 July 1999 she was unhealthy and obese. She moved about leaning heavily on her Canadian type crutches and was wearing a brace. However on removing the brace and discarding the crutches, she was able to walk securely with a normal heel toe motion. She was -- 12 of 25 -- 13 able to sit, stand, walk, and climb on to and off an examination couch without assistance and to crouch down. She was able to undress and dress without difficulty or assistance. Her posture was poor on standing but her spine was otherwise normal. [58] Dr Cooke observed that her spinal musculature was of reasonable bulk, tone and strength with no areas of tenderness or muscle spasms. She exhibited a good range of pain free active movements of her cervical, thoracic and lumbosacral spine with straight leg raising being unrestricted to 80 degrees on either side. He observed that the musculature of both shoulder girdles was of reasonable bulk, tone and strength with no areas of tenderness or muscle spasm. There was no evidence of swelling of or effusion into either glenohumeral compartment of either shoulder. She exhibited a full range of pain free active movements of both the scapulothoracic and glenohumeral compartments of both shoulders. Both hips were clinically stable while the musculature of both these joints was of reasonable bulk, tone and strength. She exhibited a full range of pain free active movements of both hip joints. Her pelvis was clinically stable. [59] Both knees were clinically stable with no evidence of swelling of or effusion into either joint. The musculature controlling these joints was of reasonable bulk, tone and strength. Both cruciate and collateral ligaments were intact and there was no clinical evidence of disruption of the menisci in either joint. She had a full range of pain free active movements of both joints. He observed anterior bowing of both tibiae which was most likely of developmental origin. The remainder of her musculoskeletal system was unremarkable. There were no abnormal neurological signs or deficits and her peripheral circulation was intact. [60] Dr Cooke’s diagnosis was rather brutally frank. He was of the opinion that she suffered from what he referred to as “dollar poultice syndrome”, advanced degenerative L5/S1 spondylosis and osteoarthrosis and obesity. [61] Dr Cooke said that Ms Boulter first mentioned the bus accident to him on 5 April 2000 some nine months after he first reviewed her. She wrote him a letter related to a request for him to complete various forms for her to gain superannuation benefits. The bus accident was merely a postscript in that letter. He presumed from that that the incident was so insignificant that it left little impression in her memory. He was of the opinion that there was no organic basis for her complaints and that she had little insight and would appear from her various comments and actions to be determined to benefit financially particularly as a result of the car park accident. He was of the view that she required ongoing medical support until her legal actions came to an end and in the interim she would have to come to terms with the fact that the various accidents were minor and did not in any way cause “body damage” as she claimed. She would need to be weaned from the various drugs on which she was currently dependent and use simple analgesics as necessary. [62] Ms Boulter told Dr Gillett that the bus accident jolted all the injuries and pain she suffered from the car park accident. Dr Gillett was of the opinion that the bus accident produced an injury to the region of the neck, jaw and lumbar spine in the form of a direct blow injury to the head and neck and some strain injury of the musculoligamentous structures of the neck and lumbar area. Again psychological sequelae would have occurred related to that accident. In his opinion her ongoing symptoms and complaints were out of proportion to what would be regarded as -- 13 of 25 -- 14 orthopaedic pathology from the accident. Her complaints of pain were not supported by Dr Gillett’s observations and clinical examination. He reported: “She indicates pain globally in the cervical, thoracic and lumbar areas. Her overall movement in moving from my chair to the examination couch is indicative of quite free spinal movement. Observed specific examination of her neck, thoracic and lumbar area produces generally good movement with a range of motion generally from a half to three quarters of normal. There is no objective neurological deficit in the upper or lower limbs. Specific examinations of the shoulders, elbows, knees, feet, ankles and heels are normal. She has positive signs in orthopaedic criteria of abnormal illness behaviour.” [63] Dr Gillett said that from the combined effects of the car park accident and the bus accident the maximum impairment of bodily function that could be apportioned would be a four percent impairment relating to the cervical spine and a five percent impairment related to the lumbar spine. Dr Gillett was the only medical witness who gave evidence at the trial of the plaintiff’s case in respect of the car park accident. The transcript of that trial was part of the agreed bundle of documents tendered at the trial of this matter. On cross-examination at that trial he said that this was the maximum impairment from which she could be said to suffer if her impairment and ongoing pain had a genuine organic pathology which he did not think was the case. In his report, he said that Ms Boulter’s multitude of physical complaints were unrelated on orthopaedic grounds to her injuries. Her injuries would not preclude her from undertaking recreational, domestic and work pursuits although she may have some residual minor discomfort. [64] Ms Boulter attended at the orthopaedic outpatients’ clinic at the Princess Alexandra Hospital, as previously mentioned, on 24 May 2000 complaining of neck, back and knee pain from which she had suffered since the car park accident. She was examined and sent for plain film x-rays of her lumbar sacral spine and placed on some non-steroidal anti-inflamatories. She returned in August 2000 still complaining of back, neck and knee pain. She was again examined and sent to physiotherapy and an MRI scan was organised of her spine. After the MRI scan showed L4/5 stenosis she was seen by the spinal surgeons. She was seen on 9 February 2001 where it was noted that she was likely to have a poor outcome following surgery. She had no neurological deficit and her spinal stenosis was only at one level. She was discharged from the spinal clinic on 6 April 2001. She returned on 29 August 2001 for persisting pain. She was sent for physiotherapy which she had not attended. [65] In summary, Ms Boulter had pre-existing L5/S1 degenerative disc disease. The car park accident and the bus accident both produced some musculo-ligatmentous strain of the back and the bus accident caused some soft tissue injury to the jaw and neck. Both could have been expected to resolve relatively quickly if it were not for the abnormal illness behaviour which has no organic basis. Physiotherapy [66] Ms Boulter presented at the physiotherapist Richard Nall for treatment on 26 October 1998. She attended for treatment in respect of long standing osteoarthritis caused by the car park accident and the bus accident. Her x-rays showed -- 14 of 25 -- 15 osteoarthritis but no fractures. She attended for treatments from 26 October 1998 until April 1999. She had five treatments in November, four in December, two in January and only one in April 1999. She attended again in November 2007 for one treatment and two treatments in December 2007. The total cost of the treatment was $689.50. [67] Mr Nall described her symptoms on presentation as chronic low back pain and weakness with pain to the right leg and buttocks, and pain on the right-hand side of the ribs after the car park accident. She also complained of bilateral jaw pain and exacerbation of her lower back pain attributed to the bus accident. Mr Nall found her to be palpably tender about the right side L4/5 and L5/S1 which was consistent with the radiation of pain to the right posterior hip and posterior upper and lower leg region. She was grossly restricted in her range of movement and hypo reactive about the lower lumbar spine. He said the complaints she presented with were consistent with the injuries one could suffer in the accidents referred to. [68] Mr Nall provided her treatment and she experienced a slight improvement of her condition. He said in his experience such injuries would lead to up to five years of spinal irritability and a concurrent accelerated degeneration of the spinal joints. However Ms Boulter re-presented for treatment on 27 November 2007 describing the same symptoms about the jaw and lumbar spine as she suffered in 1998 and 1999. She told Mr Nall that she had not had treatment between 1999 and 2007 because of her impecuniosity. He estimated she needed 12 weeks of treatment twice weekly which in 2008 would have been $58 for each consultation. That is a total of $1,392. However, more than 9 years after it occurred, the need for treatment is not attributable to the bus accident. Dental Injuries [69] On the day of the bus accident, Ms Boulter already had an appointment to see a specialist periodontist, Dr John Carrigy. She told Dr Carrigy about the bus accident and told him that she had been to a medical practitioner prior to attending at the dentist. In her oral evidence, Ms Boulter asserted that she went to the dentist before her general practitioner. Dr Carrigy’s clinical examination revealed the following: • Ms Boulter reported a history of periodontal treatment but had not attended for follow up care; • The oral examination revealed “advanced attachment loss” due to periodontitis with probing depths of 5mm to 8mm throughout the mouth; • Many teeth were quite mobile due to the degree of attachment loss and Ms Boulter was warned that the prognosis for the remaining molar teeth was “questionable to poor”; • It was also noted that tooth 21 required endodontic attention and an upper partial denture was in need of a remake. [70] Dr Carrigy reported that he spent over 40 minutes explaining these matters to Ms Boulter, including the pathogenesis of periodontal disease and the importance of seeking long term treatment. She denied that he did so, saying she was in too much pain even to sit down. It was recommended that she make an appointment for -- 15 of 25 -- 16 further formal periodontal examination including formulation of an ongoing treatment plan. However she did not attend Dr Carrigy again. [71] In evidence at the trial she falsely denied that she had loose teeth before she saw Dr Carrigy. It was because of her loose and crooked teeth that she had made an appointment to see him. [72] The dental surgeon, Mr McDermott at Kenmore extracted tooth number 37 that is the second last tooth on the left-hand lower side of the mouth on 2 December 1999. On 15 August 2000 he extracted two teeth, numbers 17 and 16 which are the second last and third last teeth on the right anterior upper side of the mouth. There is no suggestion that those extractions were related to, or caused by, the bus accident. They were caused by her underlying periodontal disease. [73] A Registrar from the maxillofacial unit at the Princess Alexandra Hospital reported that Ms Boulter had been seen many times by the maxillofacial outpatients’ clinic regarding right sided temporomandibular joint (TMJ) pain which she believed related to the bus accident. She was first seen in the clinic on 1 August 2001 by Dr Hoffman who investigated her complaints by examination clinically and via a magnetic resonance imaging scan of her joints. Both of these investigations showed no pathology. She was referred to a local dentist for treatment of her teeth which Dr Hoffman felt may have been causing the problem as they were in a state of advanced disrepair with decay and periodontal disease. [74] Ms Boulter was seen again on 13 May 2003 by Dr Matthew Voltz complaining of hypermobility of the right joint and an inability to chew on the right side. Intraoral examination revealed poor dental condition with multiple missing teeth. An ultrasound of her parotid was ordered but minimal pathology was detected. Ms Boulter was discharged from the maxillofacial clinic as no joint problems could be definitely identified. [75] Ms Boulter returned to the maxillofacial clinic at the Princess Alexandra Hospital on 25 November 2003 complaining of right TMJ clicking and an altered bite as a result of injury and tooth loss which she related to the bus accident. An examination showed that the joint was normal with a normal range of movement but possible increased hypermobility but no crepitus. No pathological findings requiring treatment were identified and Ms Boulter was again discharged from the clinic. [76] Ms Boulter attended at a dental surgery, Absolute Dental Care at Taringa, where she saw the dentist Paul Rollason on 7 September and 15 September 2004. Ms Boulter complained of pain in her jaws, neck and head and a swelling on the left side around her TMJ. She told Mr Rollason that she had been in three accidents which had contributed to her injury: the car park accident, the bus accident and the footpath accident. She was diagnosed as having bruxism, that is teeth grinding and clenching, causing muscle spasm and “possibly worsened by any of the stated accidents”. Mr Rollason was of the opinion that the bruxism had most likely been there for many years and probably prior to the accidents. The treatment he prescribed was the provision of an NTI splint to help protect the TMJ dysfunction from worsening and help reduce any muscle spasm, clenching/bruxing and associated headaches. She was also advised that she should have some physiotherapy and Dr Patrick Sweetkelly was recommended. Ms Boulter declined -- 16 of 25 -- 17 any treatment from Mr Rollason and did not attend at the physiotherapist as recommended. [77] Apart from Mr Rollason’s suggestion that it was possible that some of her accidents had worsened her tooth and jaw problems, there is no evidence to suggest that her problems were caused by anything other than periodontal disease, tooth decay and bruxism. None of those conditions was caused by any of the accidents, let alone the bus accident. She suffered only temporary discomfort to her jaw as a result of the bus accident. Eye injuries [78] Ms Boulter first saw an ophthalmologist on 16 March 1999 when she attended Dr Lawrence Lee. Her visual acuity on that day was 6/6 in the right eye and 6/5 in the left eye. The anterior segment examination was normal, both lenses were clear and intraocular pressures were also normal. There was swelling of the nerve fibre layer in the right retina which could be described as a “cotton wool” spot. Dr Lee saw her again on 15 June 1999. On that day the visual acuity in her right eye was 6/12 and 6/6 in the left eye. The right cotton wool spot had nearly resolved. He was unable to say whether or not the cotton wool spot, which was a small infarct in the right eye was due to the bus accident or to retinal vascular disease from such conditions as hypertension and diabetes. He suggested she see her general practitioner for assessment regarding those conditions. [79] He reported that trauma can be responsible for a cotton wool spot but he did not know if it had developed immediately after the accident because it was some six months after the bus accident that he saw her. The reduction in her right eye visual acuity suggested that she might have some other cause for reduced vision and therefore she would be followed up by Dr Lee. [80] Ms Boulter failed to attend a scheduled appointment with Dr Lee on 11 June 2003. He saw her again on 1 June 2004 where she complained of the footpath accident leading to complaints of pain in the back of her neck and some pain in eye movements. Her visual activity in the right eye was 6/7.5 and 6/6 in the left eye. All other aspects of her eyes were normal except that she had a small spot scotoma in the right eye, from previous injuries. He could not find any obvious cause for her ocular pain on eye movement. [81] A second ophthalmologist, Dr Mark Harrison, examined Ms Boulter on 2 February 2000. Dr Harrison was of the opinion that due to the retinal lesion she had lost 20 per cent of the visual efficiency of the right eye, equivalent to five per cent loss of efficiency of the visual system which represents a five per cent permanent impairment of the whole person. He was of the opinion that she almost certainly had had a small retinal embolus or other form of retinal arteriolar obstruction. He said that there were numerous possible causes of such a condition but the most common was atherosclerotic disease and if she had not been examined for that it should be done. He noted that she was on oral morphia and he was unable to exclude intravenous drug abuse. He said that although neither the car park accident nor the bus accident was inherently likely to be associated with retinal ischemia, he could not exclude the possibility of either accident being the sole cause of her eye problem. He said that the natural history of a retinal infarct is such that it is most -- 17 of 25 -- 18 unlikely to be due to the car park accident and unlikely to be due to the bus accident. [82] I am not satisfied on the balance of probabilities that any eye problem was caused by the bus accident. Psychiatric injury [83] The most vexed question in this case is to what extent the pain and discomfort from which Ms Boulter suffers, which is partially explained by underlying degenerative disease but otherwise appears to have no organic cause, is as a result of a psychological reaction to the bus accident and other adverse events or is contrived in order to benefit financially from this litigation. To the extent that her pain and suffering is not contrived, then it is necessary to separate the psychological effects of the bus accident from the psychological effects of the other adverse incidents in her life. [84] There is no doubt that she was frightened by the bus accident when it happened. In oral evidence she said she had nightmares after the bus accident and was unable to use a bus for the following year or two. However, immediately after the bus accident, she got onto the bus and undertook the journey she had been about to embark upon when the accident happened. [85] Robyn Murray a consultant psychologist saw Ms Boulter for a medico-legal assessment on 4 February 2000. She noted that Ms Boulter moved freely in the interview chair with no apparent restriction of movement. [86] Ms Murray administered a number of tests. Ms Boulter’s score on the Beck Depression Inventory was suggestive of extremely severe depression. Her responses on the Depression, Anxiety and Stress Inventory were suggestive of extremely severe levels of depression, anxiety and stress. The State Trait Anxiety Inventory responses suggested that her situational and general anxiety were both at an extremely high level. Her answers on the coping strategies questionnaire suggested her strategies were predominantly passive, such as praying and hoping, or catastrophising. Her responses on the McGill pain questionnaire indicated that she had pain in most parts of her body which varied from distressing to excruciating. A Personality Assessment Inventory performed on her showed some inconsistent responses. It showed her as hostile and emotionally labile. Her results suggested a ruminative pre-occupation with physical functioning and health matters and severe impairment from somatic symptoms. She was suspicious, hostile, mistrustful, emotionally labile, and subject to rapid and extreme mood swings. Her thought processes were marked by confusion, distractibility and difficulties in concentration which was consistent with her high intake of narcotic medication. [87] Ms Murray said that Ms Boulter’s current symptomatology was consistent with somatisation disorder and a major depressive episode. In addition she met the criteria for a diagnosis of opiate dependence. [88] With reference to Dr Rice’s report that Ms Boulter was falsely imputing all her aches and pains and psychological distress to the car park accident, Ms Murray thought it was possible that the manner in which she was attributing her current physical and psychological distress to the accidents might also be influenced by unconscious psychological processes. -- 18 of 25 -- 19 [89] She said that the post-trauma type symptoms which she reported (nightmares and hypervigilence) only emerged after the bus accident and it would appear that those symptoms were specifically related to the bus accident. Whilst distressing they were not sufficient to fulfil the diagnostic criteria for post-traumatic stress disorder. Ms Murray was of the opinion that it was likely that Ms Boulter was suffering from depressive symptomatology prior to the bus accident which had been exacerbated by that accident. [90] Ms Murray concluded that the litigation process might well be maintaining the symptoms that Ms Boulter was experiencing and that it was probable that there would be some resolution of symptomatology when the case settled. [91] Dr Ian Curtis, a psychiatrist, saw Ms Boulter on two occasions in May and June 2000. On the first occasion she was referred by Dr Cooke who was concerned about her drug use. [92] Dr Curtis was of the opinion that she suffered from depressive dysthymia and from a continuing generalised anxiety disorder. Those conditions appeared to derive from a combination of the accidents. In addition she suffered from abnormal illness behaviour where the compensable accidents became a watershed in her life. She saw all of her detriments and difficulties to have been derived from those accidents. She suffered from acute stress disorder after the bus accident of middle range mild nervous shock. The depressive dysthymia and generalised anxiety disorder were now chronic illness behaviours and continuing psychiatric illnesses derived from the psychological trauma of the accidents. [93] Dr Curtis attributed the nervous shock and psychiatric illness components as 66 per cent to the car park accident and 34 per cent to the bus accident. Dr Curtis was hindered by not having any other documentation available to him. She told him that the car park accident and the bus accident were the worst and only accidents of her life. In his opinion abnormal illness behaviour from which she suffered did not necessarily equate with malingering. He thought on a spectrum from malingering on one end to the other end where abnormal illness behaviour represented an unconscious expression of the loss of security and loss of personal independence as a result of the accident he leant towards the unconscious components. [94] It is relevant to causation and the relative contribution of the bus accident to her psychological state that Ms Boulter did not tell either Ms Murray or Dr Curtis about the other troubling aspects of her life history such as the allegations of sexual abuse by her husband Peter Boulter which led first to her daughters being removed from her care and later to his imprisonment. Nor did she disclose to them the accidents other than the bus accident and the car park accident. It is also relevant that her abnormal illness behaviour was entrenched by the time of the bus accident. She was already using a walking stick despite there being no organic injury which required such mobility assistance. [95] So far as psychological injury from the bus accident is concerned, I accept that she suffered some trauma as a result which lasted no longer than a year or two. She was by the time of the bus accident already in the grip of abnormal illness behaviour which continued partly because of her histrionic personality but even more because of her desire for financial gain. -- 19 of 25 -- 20 Damages [96] I shall examine the quantum of compensable loss under the headings, general damages (pain, suffering and loss of amenities of life), interest on general damages, past economic loss, interest on past economic loss, loss of earning capacity, past gratuitous services, future gratuitous services, past special damages, interest on special damages and future expenses. [97] Ms Boulter called evidence from a chartered accountant, John Swayne, who provided a schedule of damages based partly on information provided by Ms Boulter and partly on his own knowledge or expertise. The utility of the calculations is limited by the validity of the information he was given, the relevance of the material to compensable loss and the limits on his experience. [98] This injury occurred before the Personal Injuries Proceedings Act and the Civil Liability Act 2003 which have for many years governed the likely award of damages. In addition to the other evidence led before me, Ms Boulter was aware of advice given to her by counsel at a time more proximate to the injury: • an opinion given by Peter Matthews of counsel on 26 July 1999; • a letter by the plaintiff’s then solicitors Bennett & Philp dated 3 August 1999; • an opinion of Malcolm Harrison of counsel dated 30 May 2000; and • an opinion of by KR Geraghty of counsel dated 27 September 2000. General damages [99] Mr Swayne’s damages calculation used injury scale values (“ISVs”) applicable to injuries under the Civil Liability Act. That Act came into effect after this injury and so has no relevance to the calculation of damages. The ISVs used by Mr Swayne to calculate general damages were irrelevant. Further he did not distinguish in his calculations between the effect of the car park accident and the bus accident and the subsequent accidents. He relied uncritically on the plaintiff’s accounts of her symptoms. [100] Mr Jeremy Wiltshire, counsel for the defendants in this case, submitted that, being relatively generous to the plaintiff, an appropriate award for general damages, as likely to have been assessed in 2002, would be $7,500. [101] Mr Matthews of counsel was of the opinion in his 1999 advice that she would be entitled to an award of around $6,500 to $10,000 for general damages relating to the bus accident with interest at 2 per cent on about one-third of any such sum. In their letter to Mr and Mrs Boulter of 3 August 1999, Bennett & Philp related a telephone conversation that they had subsequently had with Mr Matthews and reiterated their view that general damages for the bus accident would be assessed in the vicinity of $4,000 to $5,000. [102] In Mr Harrison’s advice of 30 May 2000 he considered that the plaintiff could anticipate an award relating to both the car park accident and the bus accident in the -- 20 of 25 -- 21 vicinity of $5,000 to $10,000 with interest at 2 per cent per annum on approximately one half of that award. [103] On 5 July 2000 solicitors acting for Ms Boulter, Watling Roche Lawyers, advised her that she had been offered a settlement of $45,000 for the car park accident and the bus accident and they advised her that that was in excess of what she was likely to be awarded at trial. They told Ms Boulter that they would terminate their retainer from her if she did not give instructions to agree to that settlement. Ms Boulter did not accept this advice and retained the defendants to act for her instructing them that she did not want the claims resolved jointly but rather separately. [104] On 30 March 2001 the defendants advised Ms Boulter that she was in breach of her retainer with them when she refused to accept their advice to accept a reasonable offer from the third party insurer in respect of the car park accident in mediation in the Magistrates Court on 27 March 2001. That was settled at trial for $25,000 and costs. [105] Mr Geraghty’s advice on 27 September 2002 was that, while it was difficult to make any worthwhile assessment, at best damages for physical harm would be lucky to reach $1,000 and possible damages for the psychiatric element might be around the $5,000 mark. He could not see any basis for a claim for economic loss. In other words he was of the view that the costs involved might not make it a viable proposition to commence action against the defendants in the District Court. He observed that the settlement of $25,000 for the car park accident was quite generous and it was important that it be determined exactly what had been claimed because it could not be claimed again. Mr Geraghty recommended trying to reach a negotiated solution with the defendants rather than commencing proceedings. If it were to be commenced in court, his advice was that the matter should be commenced in the Magistrates Court. [106] It is apparent from the evidence that Ms Boulter gave in the Magistrates Court that the settlement in that court included not only general damages for pain, suffering and loss of amenities but also special damages, damages for gratuitous care and loss of income and loss of earning capacity which included time for periods after the bus accident. [107] For general damages for pain, suffering and loss of amenities for the bus accident alone, I accede to the defendants’ submission that Ms Boulter is entitled to $7,500. As this award relates to general damages suffered entirely in the past, she is now also entitled to interest at 2 per cent per annum which equates to $1770. Past economic loss [108] The plaintiff asserted in her oral evidence that she lost her job as a cleaner with the Department of Education as a result of the bus accident and has never been able to work again. In a letter signed by Ms Boulter and her husband, Peter Boulter, dated 17 June 1999, she said: “Information shows that Mrs Boulter was employed up to 18 April 1997 and pending verification in writing possibly 3 January 1998.” However that is not a complete picture of her employment history. -- 21 of 25 -- 22 [109] She first worked in Australia from 28 November 1996 as a casual school cleaner for the Department of Education. She worked until May 1997 as a substitute for a cleaner who was sometimes incapacitated. In the 20 years between her arrival in Australia in 1978 and the car park accident and the bus accident in 1998, she had engaged in paid work for only 106 hours over a period of just over five months. [110] A group certificate from the Queensland government HR Archive for the financial year ending 30 June 1997 showed she was employed from 28 November 1996, her gross earnings were $1468.68 and her tax instalments were $138.80. Her pay slips in relation to the Toowong State High School show the following: Date Hours Gross Income Tax Net income 22.11.96-18.12.96 8 108.34 Nil 108.34 13.12.96-31.12.96 16 220.40 4.70 215.70 24.01.97-12.02.97 10 135.42 Nil 135.42 14.02.97-26.02.97 44 612.64 94.90 517.74 18.04.97-07.05.97 28 391.88 39.20 352.68 106 1468.68 138.80 1329.88 [111] This demonstrates that her income as a school cleaner for the financial year ending 30 June 1997 was wholly derived from her work at the Toowong State High School and that her work had ceased by 7 May 1997. [112] She asserted that she subsequently worked as a school cleaner before the car park accident. A letter from the Right of Information and Privacy team in the Department of Education and Training dated 4 December 2009 said that it no longer has any records of time and wages books or records showing her earnings as a casual cleaner between 1995 and 1999. Given the general unreliability of her oral evidence which is not supported by, or is contradicted by, the documentary evidence, I do not accept that she worked as a casual school cleaner after May 1997. She was at best waiting, hoping for a regular position as a casual cleaner. [113] A letter from QSuper dated 18 May 1999 showed that the last employer contribution received on her behalf was for the amount of $22.76 on 7 May 1997. As a result she was not covered by the insurance associated with QSuper when she was injured in the bus accident because insurance premiums had reduced the balance in her account to nil by 1 July 1998. [114] Further it appears that it was the car park accident on 29 January 1998 which prevented her taking up any work offered in the school year 1998. [115] She has already been compensated by the settlement in the Magistrates Court for any lost earnings between 1998 and May 2001 and for her loss of earning capacity due to the car park accident. No loss of income subsequent to May 2001 can be attributed to the bus accident. -- 22 of 25 -- 23 Loss of earning capacity [116] She is not able to undertake secretarial work but Ms Murray attributed that to her lack of relevant skills rather than any injury. Her physical condition would appear to prevent her from undertaking unskilled labour in the future. In his report to QSuper on 16 March 2001, Dr Curtis said that she suffered disablement from the car park accident of such a degree that she was rendered unlikely ever to be able to work again in a job for which she was reasonably qualified by education, training and experience. [117] Accordingly, there is no evidence from which I could be satisfied on the balance of probabilities that any loss of earning capacity is related to the bus accident. Special damages [118] Ms Boulter is entitled to compensation for the payments she has made for physiotherapy reasonably undertaken since the bus accident. She paid $689.50 to Mr Nall which can be attributed to the bus accident. Otherwise, she is entitled to the cost of two visits to Dr Andrews, on 26 and 29 September 1998 costing, according to the schedule of damages, $80 for the visit on 26 September 1998, $750 for Ms Murray and $590 for Dr Curtis, although I note that he saw her on a speculative fee basis. Counselling was provided by the Brisbane City Council at no cost to her. There are no other expenses which can properly be attributed to the bus accident. She has already been compensated for those expenses attributable to the car park accident. Expenses caused by degeneration or other accidents or a desire for financial gain are not compensable in these proceedings. The amount of special damages is $2109.50 plus interest of $377.72 being 2 per cent interest on $1519.50 (($2109.50 - $590) x 11.8 years)). [119] She claimed $12,100 accountancy fees for the cost of preparing the schedule of damages by Mr Swayne. The schedule was however virtually useless since it was based almost exclusively on Ms Boulter’s oral instructions and therefore no more reliable than those instructions. She is not entitled to be compensated for that cost. [120] There are a number of other claims for damages for which there is no basis. [121] Ms Boulter gave information to Mr Swayne from which he prepared a table of economic loss which claimed interest on a loan from Liberty Finance. She had to borrow money from Liberty Finance because an insurance company obtained judgment against her in respect of her liability for the bus shelter accident. That is not compensable. [122] She claimed loss of income from a rental property. The house was run down so she rented it to her husband at a lower rate. She asserted that because of her injuries she was unable to repair it. She said she was unable to repair her house or buy and sell investment houses. That is too remote from any injury caused by the bus accident to be capable of being claimed. [123] She said she had suffered financial hardship which meant she was not able to visit her sister in America whom she had not seen for 25 years and was unable to attend her father’s funeral in 1999. Once again, these amounts are not claimable in this action. -- 23 of 25 -- 24 [124] She claimed the cost of medical insurance which is not compensable. Future special damages [125] Ms Boulter will need future physiotherapy because of the entrenchment of her abnormal illness behaviour and its effect on her physical functioning. This is not however attributable to the bus accident. Gratuitous assistance Past gratuitous assistance [126] Ms Boulter claimed $31,500 for “help from husband and son”. In her oral evidence she said her son vacuumed the carpet, mowed the lawn and did shopping for her after the bus accident for two years till he left home. She said her husband cooked and washed the clothes for 12 hours every week until they separated in 2003. In fact she told Dr English that they were in the process of separating in February 1999. In February 2000, she expressed to Robyn Murray that she was extremely dissatisfied with her marriage and wished to divorce her husband Mr Boulter was in jail at the time of the hearing in the Magistrates Court on 21 May 2001. At that time she said that he had been in jail for 10 months. He was obviously not in a position to provide her with gratuitous assistance once he was incarcerated. She has already been compensated for the gratuitous assistance received until 21 May 2001 and no further award could or should be made. Future gratuitous assistance [127] There is no evidence of any need for future gratuitous assistance that can be attributed to the bus accident. Summary [128] Ms Boulter would be likely to have been awarded $7,500 for general damages on which she is now entitled to an additional $1,770 in interest. In my view she would not have received any award for loss of earnings or loss of earning capacity nor for past or future gratuitous assistance. For special damages she would have been entitled to $2487.22 being $2109.50 plus interest of $377.72. If the defendants had commenced proceedings within the limitation period a report by the cost assessors Hickey & Garrett shows that the standard cost of proceeding to trial would have been in the order of $4,828 costs and outlays of $8,069. The total amount of $12,897 would have been recovered from the defendants. However her real costs would have been in the order of $15,932.40 and her outlays $10,367. Together indemnity costs and outlays would have been $26,299.40. There would have been a shortfall between the costs she would have recovered from the defendants and the actual cost of the litigation of $13,402.40. The amount of damages she would have received ($11,757.22) would have been less than the cost of taking the matter to trial. That is why, although the plaintiff would have been successful in proving liability, no damages would have been ordered. In those circumstances no judgment can be entered for her in this court. [129] This case should never have been brought in the Supreme Court. It has always been within the jurisdictional limit of the Magistrates Court and Ms Boulter was advised of that by counsel’s advice on 27 September 2002. Further she was advised that the -- 24 of 25 -- 25 cost of the litigation was not warranted given the damages she was likely to be awarded. [130] I dismiss the plaintiff’s claim. -- 25 of 25 --