District Court
New South Wales
Case Name: XIAN QIAN v RACQ INSURANCE LIMITED
Medium Neutral Citation: [2019] NSWDC 57
Hearing Date(s): 15 August 2018, 16 August 2018, 17 August 2018 & 2 November 2018
Date of Orders: 15 March 2019
Decision Date: 15 March 2019
Jurisdiction: Civil
Before: Strathdee DCJ
Decision:(1) Judgment for the plaintiff against the defendant in the sum of $30,300.(2) Written submissions as to the question of costs to be forwarded to my Associate within 14 days of today.
Catchwords:DAMAGES – Motor Vehicle Accidents – Subsequent Motor Vehicle Accident – Non-CompensableGENERAL DAMAGES – Motor Accidents Insurance Act (Qld) 1994 – Civil Liability Act (Qld) 2003
Legislation Cited:
Civil Liability Act (Qld) 2003Civil Liability Regulation (Qld) 2014Motor Accident Insurance Regulation (Qld) 2004Motor Accidents Insurance Act (Qld) 1994
Cases Cited:
Colorado Products Pty Ltd (in provisional liquidation)[2014] NSWSC 789Hartin v Rigel constructions Pty
Ltd & Anor [2013] QSCWhitfield v Melenewycz [2016] NSWCA 235
Category: Principal judgment
Parties:Xian Qian (Plaintiff)RACQ Insurance Limited (Defendant)
Representation:
Counsel:Mr M. Claridge (Plaintiff)Mr G. O’Driscoll (Defendant) Solicitors:JX Legal (Plaintiff)Jensen McConaghy Lawyers (Defendant)
File Number(s): 2018/00085301
JUDGMENT1 By way of a Statement of Claim filed in the District Court on 14 March 2018 the
plaintiff seeks damages arising from a motor vehicle accident which occurred
on 22 August 2013 in Queensland.
2 It is alleged by the plaintiff that at the time of the accident, she was driving a
motor vehicle in the opposite direction of a vehicle registration number 618-
HCJ, when the other vehicle travelled onto the incorrect side of the road and
collided head on with the vehicle being driven by the plaintiff.
3 Liability has been admitted by the defendant in regard to this accident.
4 The Statement of Claim further pleads that the plaintiff was involved in a
second accident on 16 October 2013 in NSW and details the injuries and
impairments that she is alleged to have sustained as a consequence of the
second accident.
5 At the commencement of the hearing I enquired of both counsel as to the
position with regard to the second accident, which occurred in October 2013,
as the injuries sustained in that accident are particularised in the Statement of
Claim.
6 Counsel for the plaintiff indicated that the second accident in October 2013 was
a blameless accident and thus the plaintiff cannot receive damages in respect
of that accident. (see Whitfield v Melenewycz [2016] NSWCA 235)
7 At the commencement of the trial, I invited Counsel for the plaintiff to address
this issue with regards to the pleadings, and he chose not to do so. However,
during closing submissions, and after counsel for the defendant had finished
his submissions, Counsel for the plaintiff sought to amend his pleadings and to
put on further evidence. Both applications were refused.
8 It was agreed between the parties that the Queensland accident is governed by
the following legislation:-
(a) Motor Accidents Insurance Act (Qld) 1994;
(b) Civil Liability Act (Qld) 2003;
(c) Motor Accident Insurance Regulation (Qld) 2004;
(d) Civil Liability Regulation (Qld) 2003.
9 It was further agreed between the parties that the substantive law affecting the
calculation of the plaintiff’s damages is governed by the law of Queensland and
the procedural law is that of New South Wales.
10 The main issue between the parties is the effect of the second accident on the
plaintiff’s physical and mental health, as it was agreed between the parties that
injuries and disabilities arising as a consequence of the second accident are
not compensable by the insurer of the other vehicle in the first accident.
11 The plaintiff’s position is that although the second accident was a more serious
one in the sense that it involved a brain injury, in actual fact the first accident
caused more serious injuries to the plaintiff’s neck, back, right shoulder,
psychological injuries and the onset of amenorrhoea.
12 The plaintiff’s case is that as at the date of trial the plaintiff has fully recovered
from the effects of the second accident, such effects are as follows:
(a) head injury/possible brain injury;
(b) aggravation of back pain;
(c) aggravation of anxiety and depression.
13 The plaintiff’s case is that her health, mental and physical, is how her health
would have been if she had not had a second accident. It is submitted that her
present situation has the continuing effects of a neck injury, right shoulder
injury, a back injury and ongoing anxiety and depression, all of which originated
with the first accident, and have remained with her ever since.
14 The defendant’s position is that the only damages that can flow from the
Queensland accident are such that flows from a minor soft tissue injury to the
cervical spine. Their position is explained as follows:-
(1) They admit the plaintiff sustained a sore neck but stated that she was cleared of any serious injury at the Gympie Hospital and discharged with simple pain killers.
(2) They admit the plaintiff sustained a minor injury to her right arm in the area of her wrist but say no abnormality was detected when examined in the Gympie Hospital.
(3) There was no injury to the back occasioned to the plaintiff in the first accident but in fact any injury to her back was occasioned in the second accident.
(4) They submit there was no injury occasioned to the plaintiff’s left hip as a consequence of the first accident, as there is no contemporaneous record of any such injury.
(5) They submit that the plaintiff has not suffered any psychological injury as a consequence of the first accident, and there has been no diagnosis of a mental disorder recognised under the DSM4 as required under the Civil Liability Act 2003 (Qld) [CLA Qld].
(6) They state that dry wrenching or shock are not injuries as they are merely reactions rather than injuries in accordance with the CLA Qld.
(7) They note the injuries that are complained of are injuries to the lower back, the neck, the knees and the left shoulder which they say all occurred in the second accident and thus are not compensable as they are causally independent of the first accident.
(8) They say that any effect of the minor neck injuries sustained in the first accident which are the only injuries compensable under the CLA Qld of Queensland have been completely subsumed by the effects of the second accident and both doctors in the conclave discussion confirmed that none of the plaintiff’s current conditions, whatever they may be, relate to the first accident.
15 The issue has recently been encapsulated by a decision of Applegarth J in
Hartin v Rigel Constructions Pty Ltd & Anor [2013] QSC at 320 in the following
terms:
‘[41] The relevant principles are summarised by Professor Luntz, citing the authorities of Fishlock v Plummer and State Government Insurance Commission v Oakley:
‘The relevant rules where a plaintiff sustains a further injury in a distinct subsequent accident have been conveniently restated as follows:
1. where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury the subsequent accident and further injury should be regarded as causally independent on the first.’’
16 This accident falls into scenario 3, it is independent. The plaintiff has led no
medical evidence or other evidence to the contrary.
BACKGROUND
17 The plaintiff gave evidence with the assistance of an interpreter. She was born
on 26 August 1972 and arrived in Australia on 7 April 2007 on a Student Visa.
Before she arrived in Australia she had worked as a midwife in China. Upon
arriving in Sydney she commenced to study aged care in the Cambridge
College in Bathurst Street, Sydney where she obtained a Certificate 3 & 4 in
Aged Care, however, had a far greater interest in massage and obtained a
Certificate of Proficiency in Massage from the Concord Holistic Centre. These
were services for which Medicare benefits could be claimed.
18 Prior to the first motor vehicle accident on 22 August 2013 the plaintiff was in
good health doing remedial massage work throughout New South Wales and
Queensland and had specifically, not had any injuries to her neck, back, right
shoulder or hips.
19 The massage business that the plaintiff was running had commenced in 2010
and she was effectively the manager of the operation. She would make
bookings for a massage tent to be set up at various music festivals which
would normally occur on a Thursday or a Friday night and they would remain in
that position until the conclusion of the music festival.
20 The plaintiff usually did not perform many of the massages herself as she had
other people employed to do the actual massages, she was more involved in
the administrative side of the business. She employed staff to do the actual
massages.
21 Generally the events would start on a Thursday or a Friday and continue until
the Sunday afternoon. After the conclusion of the festival the plaintiff and her
colleagues would return to Sydney.
22 On the date of the first accident the plaintiff was driving from Sydney to the
Gympie Muster which was a music festival to occur in Queensland. The plaintiff
had been driving from Sydney just before the accident occurred. The plaintiff
was the one who usually drove.
23 After the collision, the motor vehicle in which she and her colleagues were
travelling had flipped over and they had to crawl out from the car. An
ambulance arrived and the plaintiff gave evidence that she told the ambulance
officers that she had a lot of pain and could not move her neck. She also
indicated she could not move her right shoulder and had pain in her lower
back. She said she was not able to communicate very well with the ambulance
officers because they did not speak Mandarin.
24 The plaintiff was taken to the Gympie Hospital where a CT scan of her neck
and head were performed. X-rays of her chest, pelvis and right wrist were also
performed at the Gympie Hospital. She recalls feeling pain in her pelvis but
was not admitted to the Gympie Hospital and left after a few hours having been
offered some over-the-counter pain killers.
25 Upon the plaintiff’s return to Sydney she saw her General Practitioner, Dr Wan,
on 27 August 2013. When she attended upon Dr Wan she told him she felt
pain in her neck, right shoulder and lower back and that she felt dizzy. The
plaintiff was recommended to undergo some physiotherapy which she did.
26 The plaintiff indicated in evidence that prior to the accident she was a very
happy person but after the accident she had trouble sleeping and she saw a
doctor because she remembered that she wished to commit suicide, she stated
“I was really anxious and I couldn’t do anything” (Transcript P21 L12).
27 The plaintiff continued to seek some physiotherapy treatment on her neck,
shoulder and back.
28 Some weeks later the plaintiff was referred by Dr Wan to a psychologist, Miss
Isabelle Ma, as she felt she was in very poor mental health. The plaintiff recalls
being put on some medication but cannot recall the names. I note there is no
report from Miss Ma.
29 The plaintiff states that she is currently using medication (Norgesic) for her
neck and for her sleep.
30 The plaintiff was asked how her condition was after the first accident, that is as
at September 2013, where she indicated that she could drive, but only for a few
minutes to take her daughter to kindy, and she did not drive when it rained or
when it was dark (Transcript P20 L13).
31 The plaintiff further stated that before the Queensland accident she had never
had any headaches or felt ill.
32 Dr Wan also referred the plaintiff to an orthopaedic surgeon at the Royal North
Shore Hospital. Her evidence was that she did not attend him as she did not
have the $200.00 to pay for the consultation. She did however continue with
physiotherapy treatment up until the second accident.
33 The plaintiff also indicated that between the two accidents she noticed that her
periods had stopped, and that she had sought medical attention for that
condition and was prescribed a strong medication. She cannot remember the
name of the medication.
34 The plaintiff was specifically asked how she felt just before the second accident
and she replied as follows:
“I feel pain in my neck, my right shoulder and my lower back” (Transcript P27
L26).
35 On the day of the second accident the plaintiff was driving with her co-workers
towards Mildura as they had booked to set up their massage tent at the Mildura
Show. She had paid a deposit of $124.00 with a balance owing of $366.00 and
she had also booked and paid for accommodation near Mildura for the duration
of the Mildura event. A Tax Invoice was tendered and marked ‘Exhibit C’ from
the Mildura show and hotel evidencing an application to conduct Chinese
herbal massage at the show.
36 The plaintiff stated in evidence that she had made another booking to attend an
agricultural show in Tasmania but did not attend because she had suffered the
second motor vehicle accident (Transcript P28 L10). A further document was
tendered and stated to be an application to run a stall at the Mildura Show
dated 14 August 2013, a document relating to a hotel reservation dated 15
October 2013 and invoices from the Royal Agricultural Society of Tasmania
dated 27 May 2013 were tendered and marked ‘Exhibit D’.
37 The plaintiff was asked questions about how she felt before she set off to
Mildura on 16 October 2013 and she indicated that she thought she was ready
to work but was not doing any physical massage work. She also gave evidence
that she had pain in her neck, back and right shoulder before the accident.
38 There were four people travelling in the car on the way to Mildura and at the
time of the accident the plaintiff was driving.
39 The plaintiff agreed (Transcript P31 L44) that it was a serious accident and that
she was taken to Wagga Base Hospital. She remained in Wagga Base
Hospital for a few days and the medical records indicate that she was intubated
and suspected to have suffered a head injury.
40 The plaintiff recalls that when she was in the Wagga Base Hospital after she
woke from her unconsciousness, she had neck pain that was the same as the
neck pain she had experienced prior to the second accident.
41 When the plaintiff returned to Sydney after her discharge from the Wagga Base
Hospital she was referred to the Hunter Brain Injury Service. The plaintiff
believes that that was because of her memory loss and dizziness.
42 The plaintiff gave evidence that her dizziness had commenced after the first
accident, and before the second accident. The plaintiff said that that dizziness
had not gone away by the time of the second car accident, and remained after
the second car accident at a level similar to that which she had experienced
after the first accident.
43 The plaintiff was asked about her power to concentrate (Transcript P35 L45).
She indicated that there was a change after the second accident in that she
couldn’t concentrate on her work. The plaintiff stated that she now can only
work up to 2 hours as after that she gets very dizzy.
44 The plaintiff continued to see her GP Dr Wan during 2014, 2015, 2016 & 2017
predominantly she says, because of problems with her neck, shoulder and
back.
45 In January 2014 the plaintiff returned to China for 3 weeks and stated that her
condition whilst she was away was still the same as it was before the second
accident.
46 Upon returning from China the plaintiff gave evidence that she was unable to
do physical jobs because of her lower back and she couldn’t stand very long.
She could not do the massage work because she used to use the elbow and
she now has no power or energy to do that.
47 By 2016 the plaintiff said she felt better, if she didn’t do any physical work but
her neck was getting worse.
48 An ultrasound of the plaintiff’s right shoulder was performed on 16 April 2016
(Exhibit A P77).
49 By 2017 the plaintiff stated that her neck and shoulder were worsening and she
couldn’t lift her right arm above her shoulder and as such she did not regard
herself as physically fit for work at all.
50 As at the first day of the trial (15 August 2018) the plaintiff indicated that she
couldn’t do much physical work. She stated that she was doing some work
assisting nurses from China to come to Australia and work in the aged care
field, and for that reason she was required to travel to and from China. She has
however subsequently closed down that business because of difficulties she
experienced with using the computer. She would feel dizzy and her neck would
hurt if she used the computer for too long.
51 The plaintiff also tried to set up a business to teach music to children, but as
she could not play an instrument that business was unviable.
52 The plaintiff indicated that after the first accident she had difficulty driving for
more than about 50 minutes (Transcript P49 L47) and did not like driving at
night.
53 The plaintiff was cross-examined about the natural herbal therapy massage
business in which she was self-employed. She indicated that she could make
$2,000-$3,000 per week in that business.
54 Patrons of the business would be charged $45 for a massage of their neck,
shoulder and back. If they wanted the whole body it would cost $180.
55 The plaintiff was cross-examined extensively about her tax returns and the
premises that she operated her business out of at 281-285 Parramatta Road,
Glebe. She indicated that she sold the shop in Glebe in 2012.
56 During cross-examination great moment was made (Transcript P75 onwards)
about the entries in the plaintiff’s tax returns with regard to the business she
was running and the shop from where that business operated from. It was put
to her that it was curious and unusual that the amount in each of the various
years’ tax returns were identical for rent.
57 The plaintiff was also cross-examined about her ability to work after the first
and second accidents. It is difficult to reconcile the evidence that she gave with
the documents that were tendered on her behalf. It did at times appear to me
that she was making it up as she went along.
58 The plaintiff gave evidence that prior to the first accident she did all of the
housework including vacuuming, sweeping, cleaning bathrooms and kitchens,
mopping and doing the washing. She stated that she ceased doing those
duties after the first accident and did not resume them after the second
accident.
59 The plaintiff’s stated that her relationship with her partner, Lindsay Jones,
changed as she found having intercourse painful. Since the accident Mr Jones
has been doing most of the housework and the cooking, and the plaintiff will
cook maybe once per month if need be, as she would feel pain and soreness in
her lower back.
60 Her partner Mr Jones gave evidence in a very forthright fashion. He agreed
that prior to the first accident, the plaintiff was vibrant and happy, but after the
first accident she became moody and had trouble sleeping. He stated that she
also started to suffer from a lack of confidence driving, and that he had to do
more driving (Transcript P90 L7-12). He agreed that he had to do a lot more
around the home as the plaintiff was unable to do so. He agreed that this was
about “three or four” hours per week (Transcript P92 L47-50). In written
submissions, Counsel for the plaintiff abandoned the claim for past and future
domestic services.
61 When cross-examined, Mr Jones gave the following evidence (Transcript P95
L9-17);
“Q. The back pain came on after the second accident, didn’t it?
A. She had back pain..(not transcribable)..the second accident, that’s right. But I don’t know whether she did have some back after the first. Certainly neck pain, I do remember that. But—
Q. She only injured her back in the second. That you weren’t aware of any injuries to her lower back after the first accident, but before the second, were you?
A. Yeah, I’d say more the second, I think.”
62 I accept the evidence of Mr Jones that the plaintiff’s back pain did not come on
until after the second accident.
63 An arrangement was made between the parties that there be a teleconference
organised by the lawyers, with the aim of producing a joint medical report from
Dr Peter Giblin qualified for the plaintiff and Dr Con Kafataris. Unfortunately,
even though a facilitator was present to help the recording of opinions, the joint
report (Exhibit 2) is of little assistance. A copy of the letter sent to the doctors
(Exhibit 3), is also of no help as the doctors agreed on precious little. The utility
of the whole process was in my view minimal (Exhibit A P12-26).
64 The ambulance notes tendered as part of the plaintiff’s tender bundle, indicate
that the plaintiff complained of pain in her right arm and hip, and then
complaints were made of tenderness and pain on right side of her neck. The
Queensland Government Gympie Hospital Nursing Assessment details the
plaintiff’s presenting complaint as “neck back arm R side pain”. Further in that
bundle of documents an entry at 8.25am on 22 August 2013 records the
following ;
“States she is sore on R side of arm, neck but declined analgesia”.
65 The Gympie Hospital Radiology Report Lookup document details the history
given as “MVA. Right neck and hip pain” (Exhibit A P27). It details x-rays were
taken of the plaintiff’s chest, pelvis and right wrist, and that CT images were
taken of her brain and cervical spine. I note that when the plaintiff was in the
Gympie hospital there was no record of any radiological examination made of
her back.
66 The plaintiff first attended her General Practitioner, Dr Wan. Dr Wan records in
his report of 27 August 2013 (Exhibit A P45) as follows;
“Thank you for seeing Xian, 41 years old for opinion and management. She had a head on vehicle collision on the 22nd of August - travelling at 60km per hour. She has had ongoing neck pain since the accident with radiation to the left hand. I will get her to have a CT scan of her neck to exclude any fractures or disc pathology.”.
67 A medical certificate issued by Dr Wan on 27 August 2013 (Exhibit A P46)
states as follows;
“This is to certify that……Xian Qian…..is suffering from moderate whiplash from a head on collision accident, sustained on the 22nd August. She has persistent neck pain with radiation and neuropathic symptoms in her left hand. I will order another CT scan of her neck. She is unable to attend work duties from Thursday, 22 August 2013 to Tuesday, 10 September 2013.”
68 A medical certificate completed by Dr Wan on 7 November 2013 (Exhibit A
P44), but referring to first initial examination on 27 August 2013 records under
Medic al diagnosis or description of injury the following;
“Whiplash injury, sustained in a head on motor vehicle collision. Post traumatic stress and unable to drive.”
69 It further records under Clinical findings the following (Exhibit A P44);
“Headaches, neck pain with right sided arm radiation/weakness. CT scan (neck) – results enclosed. Physiotherapy and psychologist”.
70 Again, I note that there is no mention of the plaintiff complaining of back pain
and nor does the doctor mention any investigation of any back condition.
71 In a referral to the Pain Clinic at Royal North Shore Hospital (Exhibit A P53) Dr
Wan, writes as follows:
“Xian Qian has sustained a head on collision with another car on the 22 August and another car accident on the 17th October 2013.
She has had persistent symptoms since the accident, including neck pain, stiffness and headaches. This has also affected her general functioning. She experiences daily posterior headache, neck pain/muscle spasm and stiffness, with right arm radiculopathy symptoms. These symptoms significantly affect her ability to function. She is unable to drive or work.
She had a MRI brain and neck scan which shows a C5/6 moderate broad based disc protrusion. She has never suffered from neck problems before.
I would be grateful for your opinion and management of this lady’s pain.”
72 It is unfortunate that Dr Wan’s report does not distinguish between the
accidents, but it is of significance that he does not mention and complaints of
back pain.
73 The report of the Rathmines Physiotherapy and Sports Injury Centre dated 8
October 2013 (Exhibit A P34) indicates that the plaintiff attended on 10
September 2013, complaining of neck pain and dizziness when driving. I note
that this attendance was 3 days prior to the second accident at the time the
plaintiff was driving.
74 The second accident occurred on 16 October 2013 and it is accepted by the
parties that this accident was the more severe of the two, with the plaintiff’s car
hitting a kangaroo and rolling over. The plaintiff was taken to Wagga Wagga
Base Hospital where she was intubated due to a declining Glasgow Coma
Scale. She was referred to the Hunter New England Brain Injury Centre after
her discharge from Wagga Hospital.
75 On the day of the second accident the plaintiff underwent a MRI of her whole
spine which reports as follows:
“There is a small posterolateral protrusion at C5/6 level causing mild central thecal sac indentation. Disc desiccation is seen at L4/5 and L5/S1 levels. No other significant disc herniation is seen. The spinal cord appears normal in signal intensity. No evidence of cord compression is seen. No obvious spinal canal abnormality is noted. No evidence of any bony or paraspinal imjury is noted.
Impression:
No definite cause of patient’s symptoms is seen.” (Exhibit A P36)
76 The Wagga Base Hospital Discharge Referral (Exhibit A P37) records under
Summary of Care the following;
“…..She was stabilized in ED and was intubated due to decreased GCS. She was extubated the following day. She complained of headache and was observed to be unable to move her right lower limb. She was investigated with CT head, cervical spine, chest, and abdomen which did not show any injuries…..”
77 A physiotherapy report (Exhibit A P112) records the date of assessment as
07/01/2014 and date of injury as 17/10/13 (the second accident) records the
following;
“Mrs Qian completed a physiotherapy screening assessment at HBIS on the 07/01/2014 following her accident in October 2013. During the assessment Mrs Qian reported physical limitations were inconsistent with her demonstrated limitations.
A vestibular assessment was completed as Mrs Qian reported episodes of dizziness initially after her accident and have continued to occur. Mrs Qian’s reported symptoms were not reproducible on vestibular assessment.
Her symptoms may be due to a decreased vision/decreased visual processing. Her case manage has been made aware of this and is planning on referring Mrs Qian to an optometrist.
At this stage physiotherapy input is not appropriate as Mrs Qian’s level of function is inconsistent with her demonstrated abilities on assessment and the nature of the accident. (please refer to her Neurospychology report for further information)
A physiotherapy assessment may be beneficial in the future once her current issues have been assessed and stabilised.”
78 The report of Dr Giblin dated 29 November 2017 (Exhibit A P136-139) states
as follows under the heading diagnosis;
“Based upon her history and examination, she has the provisional diagnosis of a soft tissue injury to her cervical spine, and right shoulder and a soft tissue in jury to her low back with referred symptoms to the right lower extremity, reasonably causally related to the subject motor vehicle accident.”
79 The report of Dr Con Kafataris dated 8 December 2014 (Exhibit 1 P9) states as
follows:
“The Claimant essentially presents with non-verifiable symptoms that she alleges were sustained in the motor vehicle accident. The physical examination is non-contributory and essentially is not consistent with what one would normally expect with a significant disc injury, facet joint injury, vertebral injury, or intraarticular pathology of the hip and knee joints. There is no evidence of radiculopathy or neurocompression. The Claimant’s symptoms are relatively non-specific and cannot be verified via objective findings either on physical examination or medical investigation.”
80 Unfortunately the transcript of joint conference between Drs Giblin and
Kafataris (Exhibit 2) is of little assistance. On my reading of the transcript of the
teleconference, the only thing they can agree on is that there was no complaint
of neck pain when they both examined the plaintiff.
81 The medical evidence presented on behalf of the plaintiff is not particularly
helpful in determining what injuries the plaintiff sustained in the first accident,
and what related injuries she continues to suffer from now. It is alleged that the
plaintiff has suffered a gynaecological injury, amenorrhea, as a consequence of
the first accident, as her periods stopped after the first accident. The letter from
Dr Steven Tan, Obstetrician and Gynaecologist of 1 June 2015 (Exhibit A P78)
addressed to the plaintiff’s GP, Dr Wan states as follows:
“Xian is 42 years of age who has been generally fit and well up till her two motor vehicle accidents in 2013. Xian developed severe stress and anxiety since her accident and is under the care of a psychologist. Xian has been unable to drive due to stress since her accidents.
Xian’s periods have been mostly absent for 18 months. She trialled a course of Progesterone which did elicit a withdrawal bleed but Xian is very reluctant to continue any hormonal therapy due to headaches and the desire to be hormone-free.
…..I have reassured Xian she is medically and biochemically well. Her amenorrhea is likely secondary to severe mental stress supressing her ovarian function.”
It is also alleged that the plaintiff has a psychological condition as a consequence of the first accident and the injuries sustained in that accident. I have seen the referral letters to Ms Isabel Tan, psychologist, but there is no report from her, or any other practitioner indicating whether or not she has in fact had any psychological injury or treatment for it.”
82 The evidence given by the plaintiff can be summarised as she feels that any
injuries she sustained in the second accident have resolved, and that it is as a
consequence of the injuries that she sustained in the first accident, that is
stopping her form working, and leave her with significant pain and disability.
83 It was apparent to me when giving evidence, that the plaintiff spoke far better
English than she suggested. On occasions she would answer the question
before it had been translated, yet on other occasions wanted every word to be
translated. This was particularly so when she was asked questions that may
not have been supported by any other evidence. She was not, in my mind, a
reliable witness, and in my view was severely exaggerating her injuries and
symptoms after the first accident, and deliberately playing down the symptoms
and disabilities she experienced after the second accident.
84 I have difficulty accepting her as a witness of truth.
85 The question of how a trial judge deals with a plaintiff’s evidence in
circumstances where the judge is not confident as to the honesty of such
evidence was dealt with by Black J in In the matter of Colorado Products Pty
Ltd (in provisional liquidation)[2014] NSWSC 789 at [10]:
“I recognise that, as the Plaintiffs point out, the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his or her motives, and to the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57. I have also had regard to Atkin LJ's observation in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 LI L Rep 140 at 152 that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour", recently cited by Sackar J in Craig above at [141]. In Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34], Keane JA (as his Honour then was) similarly noted that:
"[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation."”
86 Based on all the evidence, I make the following findings:
(1) The plaintiff sustained a soft tissue injury to her neck in the first accident, which may have caused some referred symptoms into her right arm.
(2) The plaintiff was initially unable to work due to neck pain up until about mid October 2013. The plaintiff did not feel comfortable driving due to dizziness until about mid October 2013.
(3) By mid-October 2013, and certainly by at least 16 October 2013, the plaintiff had returned to driving and was capable of driving long distances. The second accident occurred when she was driving from
Sydney to Mildura. The fact that the plaintiff was driving a long distance to fulfil a pre-existing commitment is, to my mind, exemplary of her condition in at least the days prior to the second accident, being such that she could, in fact, drive long distances and work as a manager of her massage business.
(4) There is no evidence before me that the gynaecological condition is related at all, or solely to the first motor vehicle accident, or that the plaintiff is having any treatment for that condition.
(5) The only evidence that the plaintiff is suffering from a psychological condition, now, or has done after the first accident is contained in referral letters from her GP, Dr Wan, to Ms Isabel Ma psychologist. There is no report from Ms Ma or any other psychologist or psychiatrist. I am not satisfied that the plaintiff suffers from any psychological or psychiatric condition.
(6) There is no evidence to satisfy me that the plaintiff sustained a back injury in the first accident. There is no reference to her having symptoms in her back recorded in the ambulance notes, the Gympie Hospital notes, and I note that her back was not radiologically investigated at the Gympie hospital. In the days immediately after the first accident, the records and certificates from her GP, Dr Wan, make no mention of her having complained about back pain. I do not accept that the plaintiff injured her back in the first accident, nor do I accept that she suffered any injury to her right shoulder and arm.
(7) The only qualified report on the plaintiff’s behalf is that of Dr Peter Giblin. Unfortunately Dr Giblin does not make the causal connection between the plaintiff’s presenting complaints on his examination of her, with the first accident. His opinion does not distinguish between the two accidents, and as such is of little utility in my determination of the consequences of the first accident.
(8) Dr Kafataris’ report does not assist the plaintiff’s case as he is of the opinion that the plaintiff has not sustained any significant injuries in either accident and that he can see no reason why she could not return to her previous duties.
(9) The transcript of the expert evidence is of little use, and it has not persuaded me as to what injuries and disabilities flowed from either accident, cumulative or individually.
(10) Any effects of the minor neck injuries sustained in the first accident have been completely subsumed by the effects of the second accident.
QUANTUM
87 The plaintiff’s damages are to be assessed pursuant to the provisions of the
CLA and the associated Regulation (the Regulation).
General Damages
88 I accept that the dominant injury is a moderate cervical injury and falls under
item 87 of the fourth schedule to the Regulation. That provides for an Injury
Scale Value of 5 to 15. I do not accept that there should be any uplift on the
basis of multiple injuries, as I do not accept that there were any other injuries
occasioned to the plaintiff as a consequence of the first accident.
89 The applicable amounts are to be found in Table 5 of Schedule 4.
90 In making my determination I have taken into account the plaintiff’s age as at
the date of the accident and the date of the trial, the suffering that I accept that
she has endured and her likely prognosis.
91 According to the commentary to item 87 and ISV near the top of the range will
be appropriate if;
(a) there is a disc prolapse for which there is radiological evidence at an anatomically correct level; and
(b) there are symptoms of pain and 3 or more objective signs that are anatomically localised to an appropriate spinal nerve root distribution -
(i) sensory loss;
(ii) loss of muscle strength;
(iii) loss of reflexes;
(iv) unilateral atrophy; and
(c) the impairment has not improved after non-operative treatment.
92 I determine that the appropriate ISV, after taking into consideration all matters
referred to above, is 15. This realises an award of $ 24,300.00.
Economic Loss
93 The evidence in respect to the plaintiff’s pre-accident earning and post-
accident earnings was very difficult to understand. I have trouble in accepting
that the plaintiff was earning the sums she alleges prior to the first accident, as
I do not accept that she was telling the truth when giving evidence about these
matters. The plaintiff clearly understood more English than she let on as
evidenced by her answering questions in English before they had been
translated to her. I am of the view that she was either fabricating, or at least
grossly exaggerating her earnings prior to the first accident.
94 I also find that she was able to return to work by at least 16 October 2013, as
that is what she was in fact travelling to do when she had the second accident.
I find that she had no ongoing economic incapacity after that date which arose
from the injuries sustained in the first accident.
95 I do accept that between the two accidents the plaintiff’s earning capacity was
to some extent compromised as a consequence of the neck injury. Having
regard to all the evidence I believe it is appropriate to allow $5000.00 for that
period. As the plaintiff was self-employed there will be now award for past loss
of superannuation.
Out of Pocket Expenses
96 There was no agreement as to past out of pocket expenses. I note the plaintiff
tendered a Medicare Notice of Past Benefits (Exhibit E). It does not distinguish
those items claimed as related to which accident. Doing the best I can, and
based on the concession made by the defendant in its Schedule of Damages, I
will allow $1,000 for out-of-pocket expenses.
97 There is no evidence before me that the plaintiff is undergoing any medical
treatment at present for the injuries sustained in the first accident. I therefore
make no allowance for future out of pocket expenses.
98 The plaintiff is entitled to a judgment for $30,300 made up of $24,300 for pain
and suffering, $1,000 for past out-of-pocket expenses and $5,000 as for past
economic loss.
ORDERS
99 Judgment for the plaintiff against the defendant in the sum of $30,300.
100 Written submissions as to the question of costs to be forwarded to my
Associate within 14 days of today.
**********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on
any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Top Related