Boskovic v Boskovic[2007] QDC 186

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was born in the former Yugoslavia on 16 November 1971. She is presently 35 years of age. The plaintiff is married to the first defendant, Lozan Boskovic. They have three children. Jovana was born on 5 December 1995 and is presently 11 years of age. Tamara was born on 3 January 1997 and is presently 10 years old. Lazar was born on 8 October 2004 and is presently 2 years of age.

2. [2]
   The plaintiff claims damages for injuries sustained in a motor vehicle collision on 24 May 2003. Liability is admitted. I am required to assess the quantum of the plaintiff’s damages.

3. [3]
   On 24 May 2003 the plaintiff and her husband were shopping at the Indooroopilly Shoppingtown. Mr Boskovic was driving the vehicle when they were returning home. He was attempting to overtake another vehicle when that vehicle changed lanes and a collision resulted^[1].  The accident was reasonably serious causing significant damage to the motor vehicle^[2].

4. [4]
   The plaintiff suffered injuries to her neck, lower back, left hand and chest. She also suffered post-traumatic stress disorder. The plaintiff also claims to have suffered a major depressive disorder and chronic pain due to physical and psychological factors. She claims that these injuries have precluded her from returning to work and have significantly interfered with her ability to care for herself and her family.

5. [5]
   The second defendant accepts that the plaintiff suffered soft tissue injuries to her neck and back and seat belt injuries to her chest that would have caused pain and difficulties for a number of weeks or perhaps months after the accident. The second defendant contends that by late 2003 the plaintiff’s physical symptoms were either non existent or intermittent.

6. [6]
   The second defendant accepts that the plaintiff developed a post-traumatic stress disorder as a consequence of the accident but submits that this condition had resolved by mid 2005, leaving her with mild residual symptoms in the nature of traffic anxiety. The second defendant also accepts that the plaintiff became depressed in part due to the accident but argues that this was contributed to by her difficult family circumstances, in particular by her husband’s serious mental illness. The second defendant submits that the plaintiff’s depression had resolved by late 2005.

7. [7]
   The second defendant contends that the plaintiff has either feigned or exaggerated her difficulties for the purpose of maximising her damages.

Background

8. [8]
   The plaintiff attended school in the former Yugoslavia^[3]. She then completed a bookkeeping course.  After that she worked in a boutique^[4].  The plaintiff then worked at a café for a short period.  In 1992 the plaintiff and her husband moved to London.  She then worked at a hotel where she performed housekeeping and cleaning duties. After that she worked at a café^[5].

9. [9]
   The plaintiff and her husband migrated to Australia arriving on 6 March 1995. They settled in Melbourne, living in a house owned by Mr Boskovic’s parents. The plaintiff and her husband later purchased that house.

10. [10]
    Shortly after arriving in Australia the plaintiff became pregnant. As mentioned, Jovana was born on 5 December 1995 and Tamara was born on 3 January 1997.

11. [11]
    The plaintiff subsequently did some casual work at a Melbourne restaurant owned by friends. She continued to do casual work at that restaurant after it was sold^[6].  According to the plaintiff’s employment schedule^[7], she worked at that restaurant between 1998 and 2001.  The plaintiff was unable to estimate her earnings at the restaurant because she was paid small amounts from time to time^[8].  She did not receive Group Certificates and did not lodge taxation returns^[9].

12. [12]
    In 2002 Jovana commenced Year One and Tamara started at preparatory school. The plaintiff then commenced work at a sandwich bar called the “The Filling Station” on 11 February 2002. The sandwich bar was owned by Mr Goran Savic, who employed the plaintiff to conduct the business for him^[10].  At that stage Mr Boskovic was employed as a manager at Kirby Refrigeration^[11].

13. [13]
    The plaintiff said that she would drop the two children at school before 9.00 am and arrive at The Filling Station shortly thereafter.  Her duties included assisting in food preparation, placement of orders, management of the money, washing dishes and supervising staff.   She would generally finish work at about 3.20 pm and collect the children from school on the way home^[12].

14. [14]
    On 10 July 2002 the family travelled to Serbia for a holiday^[13].  By that stage Mr Boskovic had become deeply depressed.  The plaintiff said that he spent most of his time sleeping.  The plaintiff attempted to encourage him to go to work but there were days when he would not get out of bed.  She said that he cried a lot.  Mr Boskovic insisted that the blinds were drawn so that the room remained dark^[14].  The purpose of the family holiday was to assist Mr Boskovic overcome his depression^[15].   However, while the family was in Croatia Mr Boskovic’s behaviour became erratic.  The plaintiff described her husband’s conduct as including driving fast, spending large amounts of money and being rude^[16].  As the plaintiff explained, her husband was suffering a manic disorder^[17].

15. [15]
    The family returned to Australia on 28 August 2002^[18].  The plaintiff returned to work at The Filling Station.  In October 2002 Mr Boskovic announced that he was returning to Croatia.  He gave no explanation for making the trip, simply saying that he “needed to go”^[19].  He was away for about three weeks^[20].  After his return the plaintiff discovered that Mr Boskovic had accumulated a significant debt through borrowings.  In order to overcome his financial difficulties, Mr Boskovic proposed that the home in Melbourne be sold and that the family relocate to Brisbane where he said house prices were cheaper^[21].  Mr Boskovic secured an employment opportunity in Brisbane with the firm, Kirby Refrigeration for whom he had been working in Melbourne.

16. [16]
    The plaintiff did not wish to move to Brisbane, but she ultimately agreed to do so^[22].  The family purchased a house at 22 Livingstone Road, Darra and moved to Queensland on 23 December 2002.  The family resided with Mr Boskovic’s aunt and uncle while the house was renovated^[23].

17. [17]
    Mr Boskovic commenced employment at Kirby Refrigeration, but within two weeks he ceased work because of his depression^[24].  The family lived on the proceeds of the sale of the house in Melbourne^[25].

18. [18]
    The plaintiff said that she commenced looking for employment. She said that she was offered a position by Alex Prodanovic at Café At Knittex^[26].  Mr Prodanovic said that he interviewed the plaintiff on 20 May 2003 and offered her the position in charge of the café^[27].  He said that he gave the plaintiff a letter dated 20 May 2003 offering her the position^[28].  The second defendant contends that the offer of employment was not genuine.

The accident and events that followed

19. [19]
    As mentioned the motor vehicle accident occurred on 24 May 2003. The plaintiff was taken by ambulance to the Mater Hospital and discharged later that evening^[29].  She visited her general practitioner a couple of days later^[30].

20. [20]
    In the week following the accident the plaintiff said that she experienced considerable pain^[31].  She said that she received domestic assistance from members of the extended family.

21. [21]
    On 31 May 2003 Mr Boskovic suddenly announced that he wanted to travel to Melbourne^[32].  The plaintiff asked him why he wished to go to Melbourne.  She said that Mr Boskovic was experiencing another manic episode and he simply packed up and left without explanation^[33].  Some time later the plaintiff discovered that Mr Boskovic was hospitalised in a mental hospital at Box Hill in Victoria.   He had been diagnosed with bipolar disorder^[34].  On 8 July 2003 the plaintiff travelled to Melbourne for the purpose of bringing Mr Boskovic home.  The plaintiff spoke to Professor Keks at the hospital who explained that she was the only person who could sign for him to come home.  The only alternative was to leave Mr Boskovic in hospital for a six month period^[35].  Mr Boskovic was released into the plaintiff’s care and they travelled back to Brisbane.

22. [22]
    The plaintiff said that upon their return to Brisbane Mr Boskovic was heavily medicated and spent most of the time in bed^[36].

23. [23]
    Between 5 June 2003 and 2 December 2003 the plaintiff underwent a course of physiotherapy with Ms Bernadette Ha^[37].  The plaintiff said that the physiotherapy helped her a lot but she continued to experience pain in her hands, neck and spine^[38].

24. [24]
    In August 2003 the plaintiff organised for Mr Boskovic to receive the Disability Pension. The plaintiff commenced receiving a Carer’s Pension^[39].

25. [25]
    In late 2003 the plaintiff began to feel depressed^[40].  She described her feelings as follows:

“I wasn’t up to anything.  Didn’t want to talk to anyone, didn’t want to answer the phone, didn’t want to do anything.  I wasn’t – I was actually swapping the role with Lozan, going in my bedroom, crying a lot, thinking what would happen if accident hadn’t occurred, because I was full of life before.”^[41] 

26. [26]
    The plaintiff developed a major depressive disorder and post-traumatic stress disorder. ^[42] 

27. [27]
    In late 2003 the plaintiff was referred to Ms Nadia Brandon-Black, a muscoskeletal exercise physiologist. She was required to design a physical conditioning program that included attendance at a gym and exercise at home. She supervised the plaintiff as she undertook a rehabilitation program, but considered that the plaintiff had not benefited from it. She stated that the plaintiff’s lack of improvement was a direct result of her lack of attendance and effort during supervised sessions^[43].

28. [28]
    Ms Brandon-Black was not aware that the plaintiff was suffering from a psychiatric condition^[44].  In cross-examination she accepted that a person suffering from a psychiatric disorder might have a heightened perception of pain^[45].

29. [29]
    The plaintiff was referred to a psychologist, Dr Brona O'Dowd. The initial consultation was on 22 April 2004^[46].  By April 2006 the plaintiff had seen Dr O'Dowd on  approximately thirty occasions^[47].  The plaintiff was also referred to Psychiatrist Dr Richard Pryor^[48].

30. [30]
    The plaintiff says that she continues to experience pain in her neck and lower back. She described feeling a “shooting sensation” in her right leg, hip and right hand^[49].  The plaintiff said that she continues to experience headaches frequently.  She said that on some days she is unable to lift her head off the pillow^[50].

Orthopaedic and neurological evidence

31. [31]
    The plaintiff has been examined by Dr Gillett, Dr Pincus and Dr Tomlinson.

32. [32]
    Mr Feely for the defendants submits that the plaintiff’s significant variation in presentation to these medical practitioners affects her reliability. Mr Mullins for the plaintiff submits that the inconsistencies in the plaintiff’s presentation are readily explicable in the context of her serious psychiatric disorder.

33. [33]
    The plaintiff was seen by Dr Gillett on 23 June 2005^[51].  She then saw Dr Tomlinson on 11 July 2005^[52].  She saw Dr Pincus on 29 July 2005^[53].

34. [34]
    The plaintiff made no complaint of pain or numbness in her arm to Dr Gillett or Dr Tomlinson but complained of altered sensation in her entire right arm to Dr Pincus.  Dr Pincus was unable to find an anatomical or organic basis for the symptoms in the plaintiff’s right arm^[54].  When examined by Dr Pincus the plaintiff had a full range of movement of her lumbar spine with no tenderness or spasm.  Her neck movements were limited only in extension.  Dr Gillett and Dr Tomlinson recorded quite different ranges in movement of the neck.

35. [35]
    The plaintiff underwent further medical examinations shortly before the commencement of the trial. On 6 February 2007 she saw Dr Tomlinson^[55].  She then saw Dr Pincus on 13 February 2007^[56].

36. [36]
    The plaintiff complained to Dr Tomlinson of pain or numbness in both arms.  Her range of movements of neck and back were different from those recorded in 2005 and inconsistent with the ranges obtained by Dr Pincus a little over one week later.  In his report dated 13 February 2007^[57], Dr Pincus stated:

“I would continue to feel that Ms Boskovic’s major problems are related to her psychiatric and psychological conditions.  Her clinical signs were once again inconsistent, but in a totally different way than they were when I saw her in September of 2005.  These signs of abnormal illness behaviour would raise the possibility of exaggeration of symptoms and signs.”^[58]

37. [37]
    Dr Gillett, who was called by the plaintiff agreed that there was a significant variation in the findings upon clinical examination^[59].

38. [38]
    It is also clear that the plaintiff exaggerated her consumption of painkillers. For instance, she told Dr Persley, psychiatrist, on 7 September 2005 that she was taking three to four tablets of the analgesic Tramal per day. She also said that she was taking eight to 10 tablets of Panadeine Forte per day^[60].  The plaintiff gave similar estimates to Dr Gillett, Dr Pincus and Dr Walden.

39. [39]
    The records of the Darra Pharmacy^[61] established that the plaintiff purchased one packet of Tramal on 10 June 2003 and three prescriptions for Panadeine Forte on 8 August 2003, 10 October 2003 and 10 August 2006 respectively.  The plaintiff was unable to satisfactorily explain the contradiction when challenged in cross-examination, simply saying “I don’t remember” or “I can’t remember”.

40. [40]
    Mr Mullins for the plaintiff accepts that she “may have been incorrect about the amount of and different types of medication that she consumed from time to time”^[62].  However, he submitted that this is a small issue in the context of the plaintiff’s serious physical limitations and the psychiatric injury.

41. [41]
    I do not accept that the plaintiff’s exaggeration of the need for painkillers is attributable to her psychiatric condition. In my view, the deliberate exaggeration of the need for painkillers was designed by the plaintiff to bolster her claim in respect of the physical injuries. The assessment of the medical evidence is also affected by the plaintiff’s significant variation in presentation to the medical specialists.

42. [42]
    Dr Gillett saw the plaintiff a little over two years after the accident. He expressed the opinion that as a consequence of the accident the plaintiff suffered pain associated with a musculo-ligamentous strain injury involving her cervical and thoraco-lumbar spine and left anterior chest injury and injury to the left hand. He said that the hand injury had resolved. He said that orthopaedic sequelae from the accident reflected injury involving the neck, thoraco-lumbar spine and chest^[63].  Dr Gillett expressed the opinion that there was no measured impairment of the chest using AMA 5 guidelines.  He assessed the plaintiff as having a 5 per cent impairment of the cervical spine related to the impact upon activities of daily life.  In relation to the thoraco-lumbar spinal pain Dr Gillett assessed a further 5 per cent impairment related to impact upon activities of daily life.  He considered that the plaintiff’s condition orthopaedically had reached maximum medical improvement based on AMA 5 definitions but that in the longer term there may be some improvement when her psychiatric condition improves.

43. [43]
    Dr Gillett’s assessment was based upon the plaintiff’s presentation on the day of examination. However, he acknowledged that in view of the examinations and findings of Dr Pincus, he would likewise have been unable to make an assessment.  The following evidence was given in cross-examination:

“So, Dr Gillett, when we look at your report and your assessment under the AMA 5 guidelines back in June 2005, bearing in mind what you’ve told us today and having looked at that further material, it would be fair to say that, if you were examining her today, the assessment is very likely to be different or whether you could carry out an assessment at all is problematic?--  Yes, I think, based on the – I mean, I’m flagging that there were some psychological issues as being flagged by the psychiatrist.  There were psychological issues.  Dr Pincus’s two reports flags them and, in the second report, there’s a different presentation to the first report is my reading.  If I was in Dr Pincus’s chair at that point, I would be saying that I can’t assess this lady under AMA in relation to orthopaedic parameters.”^[64]

44. [44]
    In his report dated 28 September 2005^[65] Dr Pincus said that the plaintiff suffered a number of soft tissue injuries.  He noted that the plaintiff continued to complain of pain related to most of those injuries.  He was unable to find any evidence that the plaintiff had a significant injury to the lumbar spine.  He considered that the range of movement was within normal limits and the plaintiff’s symptoms were intermittent.  He said that there was no evidence of any impairment using the American Medical Association Guides to the Evaluation of Permanent Impairment.  In relation to the plaintiff’s injury to the cervical spine, he noted that she continued to complain of pain.  Having regard to the inconsistent clinical findings during the consultation, Dr Pincus considered that it was impossible to find evidence of any permanent impairment.  Dr Pincus considered that the plaintiff’s major problem from the accident was the impact upon her mental state.  In his report dated 13 February 2007^[66], Dr Pincus did not substantially alter his opinion.  He remained of the view that the plaintiff’s major problems were related to her psychiatric and psychological conditions^[67].

45. [45]
    I accept the evidence of Dr Pincus.  He had the advantage of seeing the plaintiff on 29 July 2005 and 13 February 2007.  It is significant that Dr Gillett acknowledged that his assessment would be likely to be different based upon the clinical findings of Dr Pincus.

46. [46]
    Dr Tomlinson, a neurosurgeon, estimated that the plaintiff has a 7 per cent whole person impairment and an additional 3 per cent for pain-related impairment in respect of her cervical spine.  In relation to the lumbar spine, he estimated that the plaintiff has a 6 per cent whole person impairment.

47. [47]
    I do not accept Dr Tomlinson’s assessment of the plaintiff’s impairment.  In my view, the plaintiff was deliberately feigning or at least exaggerating her symptoms.  Dr Tomlinson seemed to adopt a sympathetic view and had insufficient regard to the possibility of exaggeration.  In my view, Dr Tomlinson did not properly consider the permanency of the plaintiff’s impairment.  The AMA Guides to the Evaluation of Permanent Impairment^[68] state that if the impairment is resolving, changing, unstable, or expected to change significantly with or without medical treatment within 12 months, it is not considered a permanent impairment and should not be rated under the Guide’s criteria.  When asked about that in cross-examination Dr Tomlinson responded:

“Whatever it says, but I use the guidelines as a guideline; I don’t use them as, you know, chapter and verse.”^[69]

48. [48]
    In my view it is difficult to adopt an impairment rating pursuant to the AMA Guides when it seems reasonably clear that they have not been applied.

49. [49]
    One factor taken into consideration by Dr Tomlinson was that the plaintiff has back spasm.  One of the criteria for the assessment of a DRE lumbar category II injury in accordance with the Guides to the Evaluation of Permanent Impairment^[70] is a finding of significant muscle guarding or spasm observed at the time of examination.  In my view, Dr Tomlinson was unable to clearly state the basis on which he reached that conclusion.  When asked in cross-examination whether he had tested the plaintiff sufficiently to see whether she was able to relax the contracted muscles, Dr Tomlinson said:

“As I say, what I’ve written down is what I’ve written down; that’s my professional opinion, done under oath, based on what I saw on that day.  That’s all I can say.”^[71]

50. [50]
    Although Mr Mullins for the plaintiff urged me to accept Dr Tomlinson’s opinion, he acknowledged that his evidence was “problematic”^[72].  As I have said, overall I prefer the evidence of Dr Pincus.  Mr Mullins for the plaintiff urged me to have regard to the evidence of Mr Hoey, the occupational therapist.  I have had regard to Mr Hoey’s assessment but his opinion does not cause me to doubt the correctness of the evidence of Dr Pincus.

Psychiatric evidence

51. [51]
    The plaintiff was examined by Dr Persley, psychiatrist on 7 September 2005. He diagnosed major depressive disorder, post-traumatic stress disorder and chronic pain due to physical and psychological factors.

52. [52]
    The plaintiff was examined by Dr Maxine Walden on 4 April 2006. She also expressed the opinion that the plaintiff suffered from symptoms consistent with the DSM-IV diagnosis of post-traumatic stress disorder. She also considered that the additional diagnosis of major depression was warranted, but that its causation was multi-factorial^[73].  She considered that the plaintiff’s depression was partly due to the subject motor vehicle accident as well as in response to her husband’s diagnosis of bipolar disorder and an unexpected and initially unwanted pregnancy.  Dr Walden stated that the depressive disorder had resolved, although the plaintiff described occasional intermittent feelings of depression which were not sufficient to warrant any psychiatric diagnosis.

53. [53]
    Mr Feely for the defendants points out that the plaintiff failed to give a complete and accurate history to the psychiatrists and that this causes difficulties in the assessment of their evidence. He nevertheless accepts that the motor vehicle accident was a significant contributing cause of the plaintiff’s post-traumatic stress disorder.

54. [54]
    I accept the evidence of Dr Walden that by April 2006 the plaintiff had reached maximum medical improvement and that her condition had stabilised and would not change by more than 3 per cent in the following year with or without medical treatment. Dr Walden expressed the opinion that the psychiatric diagnoses were post-traumatic stress disorder, substantially in remission and major depressive disorder, also in remission. In her evidence Dr Walden said that at the time of writing her report the plaintiff’s depression had largely resolved^[74].  In relation to the post-traumatic stress disorder Dr Walden said that the plaintiff had some residual symptoms, mainly related to traffic anxiety.

General damages

55. [55]
    The plaintiff’s damages are to be assessed in accordance with ch 3 Pt 3 Civil Liability Act 2003 (“the CLA”) and the Civil Liability Regulation 2003 (“the Regulation”).  Section 61(1)(a) requires that an injured person’s total general damages be assigned a numerical value (injury scale value; “ISV”) on a scale running from zero to 100.  Section 61(1)(c) requires the court to assess the ISV in accordance with the Regulation and having regard to similar injuries in previous cases.

56. [56]
    Section 3 of the Regulation provides that in assessing the ISV for multiple injuries the court is required to consider the range of ISV’s for the dominant injury. Section 3(2) of the Regulation states that in order to reflect the level of adverse impact of multiple injuries, the court may assess the ISV for multiple injuries as being higher in the range for the dominant injury than would be assessed for such injury alone. However, s 4 of the Regulation permits an assessment of a higher amount than the maximum dominant ISV if the level of adverse impact is so severe that the dominant ISV is inadequate.

57. [57]
    The relevant provisions of the Act and Regulation have been discussed by White J in Ballesteros v Chidlow & Anor^[75].  I adopt the same approach in this case.  It is not necessary to expand upon her Honour’s helpful analysis of the relevant provisions.

58. [58]
    Mr Mullins for the plaintiff identified physical injuries to the left-hand, chest, cervical spine and thoraco-lumbar spine. He accepted that the injuries to the hand and chest were relatively minor and would be appropriately classified under Items 120 and 39 respectively in Sch 4 of the Regulation. He submitted that having regard to the evidence of Dr Gillett and Dr Tomlinson, the injuries to the cervical spine and thoraco-lumbar spine were significant and should be classified under Items 88 and 93 of Sch 4 of the Regulation respectively.  However, I prefer the evidence of Dr Pincus.  I accept that the plaintiff suffered soft tissue injuries to her neck and back and significant bruising to her chest.  She no doubt experienced pain in the weeks following the accident but gradually recovered from the physical injuries.  Dr Pincus was unable to find any evidence of permanent impairment of the cervical or lumbar spine.  Accordingly, I would categorise those injuries under Items 89 and 94 of Sch 4 of the Regulation.

59. [59]
    In my view, the “dominant injury” is the plaintiff’s post-traumatic stress disorder and depression. The parties agree that the injury falls under Item 12 in Sch 4 of the Regulation which is moderate mental disorder with an ISV range of 2 to 10. I accept Dr Walden’s assessment that the appropriate psychiatric impairment rating scale (PIRS) is a 4 per cent whole person impairment^[76].  The example of a moderate mental disorder provided in Item 12 of Sch 4 is a mental disorder with a PIRS rating between 4 per cent and 10 per cent.  Mr Mullins and Mr Feely both submitted that the appropriate ISV for the psychiatric injury was eight.  I accept that joint submission.

60. [60]
    The psychiatric injury is plainly the “dominant injury” when it is considered that the ISV range for both a minor cervical spine injury and minor thoracic or lumbar spine injury is 0 to 4.

61. [61]
    The plaintiff’s physical injuries have largely resolved and in those circumstances it is not necessary to make an assessment beyond the maximum dominant ISV. In order to reflect the adverse impact of the physical injuries, it is appropriate to assess the applicable ISV at the upper end of the range provided in Item 12 of Sch 4. In the circumstances, the appropriate ISV is 10. Pursuant to s 62(b) of the Act, this results in an award for general damages of $11,000.

Past economic loss

62. [62]
    The plaintiff says that she became aware that Mr Alex Prodanovic was opening a café at Seventeen Mile Rocks^[77].  Mr Prodanovic’s mother knew the plaintiff’s aunt.  The plaintiff was interviewed for a position in charge of the business, a takeaway
    
    food shop called Café at Knittex.  She accepted the position and was given a letter dated 20 May 2003 stating that she was to commence on 2 June 2003.  The letter stated that her working hours were to be from 9 am to 2.30 pm and that she would be paid $14.80 per hour^[78].  Mr Prodanovic completed an employment questionnaire for the solicitors for the defendants in which he stated that the plaintiff was to commence on 26 May 2003, only two days after the accident^[79].  Mr Prodanovic said in evidence that the commencement date was brought forward to 26 May 2003 because he was dissatisfied with an employee and he wished to replace her with the plaintiff^[80].

63. [63]
    Mr Feely submits that the offer of employment was not genuine. He points out that there was no reference to the plaintiff’s position at Café at Knittex in her Notice of Accident Claim Form dated 6 June 2003^[81].  However, the plaintiff does mention the position at Café at Knittex in her Additional Information Form dated 20 May 2005^[82].  Mr Feely submitted that Mr Prodanovic was evasive and lacked credibility.  He points out that Mr Prodanovic was reluctant to give evidence and eventually agreed only to do so by telephone without any satisfactory explanation.  There are a number of unsatisfactory features of Mr Prodanovic’s evidence.  In an e-mail to the defendants’ solicitors on 14 February 2007^[83], Mr Prodanovic stated that he would not be attending the trial and refused to give evidence by telephone.  He stated that his reason for refusal was that he had provided all written information and felt there was nothing more to add.  During cross-examination he was unable to satisfactorily explain his reluctance to give evidence^[84].  There was also some variation between the information contained in Mr Prodanovic’s letter dated 20 May 2003 and the information provided to the solicitors for the defendants in the employment questionnaire.  In the letter dated 20 May 2003^[85], Mr Prodanovic stated that the hourly rate would be $14.80.  However, in the employment questionnaire he stated that the hourly rate was $16.

64. [64]
    Notwithstanding a number of discrepancies in the evidence, I accept that the plaintiff was to commence employment at Café at Knittex on 26 May 2003. Mr Prodanovic accepted in cross-examination that the rate of $16 per hour stated in the employment questionnaire was erroneous.  He agreed that the rate of $14.80 per hour as stated in the letter dated 20 May 2003 was correct^[86].

65. [65]
    The plaintiff was seen by Dr Pincus for the first time on 29 July 2005.  In his report dated 28 September 2005, Dr Pincus stated that the plaintiff’s ability to do café type work was not affected by the accident in any significant way^[87].  The plaintiff was seen by Dr Walden on 4 April 2006.  In her report, Dr Walden stated that the plaintiff had last been in paid employment in 2002.  She expressed the view that the plaintiff’s current level of psychiatric disorder would not preclude a return to such work^[88].  In evidence Dr Walden said that the plaintiff would have been able to return to work a few months prior to her examination on 4 April 2006^[89].

66. [66]
    Mr Mullins submits that the plaintiff would have earned $14.18 per hour for approximately 26.5 hours per week. He submits that this equates to $407 per week, which yields a nett figure of $350 per week^[90].  I will adopt an hourly rate of $14.80because that is the figure stated in Mr Prodanovic’s letter and confirmed by him in evidence.  As mentioned, he also said in evidence that it was agreed that the plaintiff would work for up to 20 hours per week^[91].  That results in a gross amount of $296 per week.  Mr Mullins accepts that in respect of the period of 134 weeks from 26 May 2003 to 1 January 2006, it is appropriate to deduct 52 weeks following the birth of the plaintiff’s son Lazar.  The child was born on 8 October 2004, so it is appropriate to adjust the period of past economic loss as suggested by Mr Mullins.  The plaintiff’s nett earnings per week would have been in the vicinity of $250.

67. [67]
    The plaintiff’s potential nett earnings in the period 26 May 2003 to 1 January 2006 (excluding the 52 weeks following the birth of Lazar on 8 October 2004) were $20,500. Mr Mullins submitted that a 10 per cent discount for contingencies was appropriate^[92], but he conceded that a discount of up to 40 per cent was open^[93].  One consideration justifying a discount is the fact that the plaintiff’s work performance at The Filling Station diminished following the deterioration in her husband’s mental state.  Mr Savic, the proprietor of The Filling Station agreed with Mr Feely that following the overseas holiday in 2002, the plaintiff “wasn’t performing”^[94].  It is necessary to bear in mind that Café at Knittex commenced operating on 16 May 2003 and it was only a few days afterwards that Mr Prodanovic was looking to replace an unsatisfactory employee.  Mr Prodanovic agreed to employ the plaintiff on a trial basis^[95], so there is a distinct possibility that she would not have remained at Café at Knittex.  Moreover, at one point Mr Prodanovic evidently attempted to sell the business but was unable to do so^[96].  He then leased the business to another operator but was unable to say precisely when that occurred^[97].  It is unlikely that the plaintiff would have worked for the entire period from 26 May 2003 to the date Lazar was born on 8 October 2004.  The café was in the nature of a kiosk attached to an industrial factory^[98], so it is likely that the business may have closed at least during the Christmas period.  In addition, the plaintiff may not have returned to the position after taking time off following the birth of Lazar.  In these circumstances in my view, it is appropriate to discount the amount of past economic loss by 25 per cent for contingencies.  This results in an award of $15,375 for the period 26 May 2003 to 1 January 2006.

68. [68]
    Mr Mullins submits that there should be a further award for past economic loss for the period 1 January 2006 to the date of oral submissions on 15 May 2007. He submits that this follows from an acceptance of the evidence of Dr Gillett, Dr Tomlinson and Mr Hoey that the plaintiff would have been incapable of working in the capacity of a food and beverage assistant in the hospitality industry during that 72 week period.  In relation to the medical evidence, I have already said that I prefer the evidence of Dr Pincus^[99].  Moreover, Dr Walden considered that the plaintiff was capable of work outside the home if she chose to do that for a few months prior to the date of assessment on 4 April 2006^[100].

69. [69]
    The plaintiff was assessed by Mr Stephen Hoey, occupational therapist, on 28 June 2005. In his report dated 28 June 2005, Mr Hoey said that the plaintiff was now capable of occupations in the sedentary to light range only (as detailed by the Dictionary of Occupational Titles)^[101].  He conducted a further assessment of the plaintiff on 5 February 2007.  In his second report dated 6 February 2007, Mr Hoey expressed the view that the plaintiff was capable of occupations in the sedentary range only^[102].  Mr Hoey said that at the time of his second assessment there had been some improvement in the plaintiff’s range of movements^[103].  Mr Hoey explained the variation between his first report which stated that the plaintiff was capable of occupations in the “sedentary to light range only” and the second report that stated she was capable of occupations in the “sedentary range only” as being an error on his part^[104].  He said that he had incorrectly interpreted the Dictionary of Occupational Titles.  He maintained that the plaintiff was incapable of lifting 9 kg from floor to waist or waist to shoulder for a third of the working day and, accordingly, she was properly categorised as being capable of sedentary work only^[105].

70. [70]
    When Mr Hoey carried out his assessment on 28 June 2005, he had limited information concerning the plaintiff’s psychiatric state. He noted in his report dated 28 June 2005 that:

“Ms Boskovic was taken by ambulance to the Mater Hospital, but not admitted.  She has subsequently required extensive physiotherapy, psychology and psychiatry.”^[106]

71. [71]
    In cross-examination Mr Hoey seemed to accept that a proper assessment would involve ascertaining the extent to which the plaintiff’s condition was affected by her physical injury and whether it related to her depression. He gave the following evidence:

“Right.  Well when you prepared your report you, and I suggest, really made no comment, made no allowance for the possibility at the very least that this lady was suffering from a depressive condition which might impinge upon her physical capacities in the way that you were indeed describing to my learned friend Mr Mullins?--And as you rightly pointed out without a barrage of medical specialists reports it is impossible, for me, to act fully without those reports.

I am not criticising you in the least Mr Hoey.  You obviously go on what you’re told by the person-----?--Certainly.

And the other material that’s in front of you.  You can only deal with the matters in front of you, I am not criticising the examination at all.  But what I am suggesting is that you were not provided with sufficient information either by the person, Mrs Boskovic, when she came to see you to draw your attention to the fact that she was depressed and that there maybe something else going on behind the scenes nor by the material in front of you.  Correct?--Not by the materials and not from her self report.

Is there anything in either your report or your treatment notes or your file to suggest that when you saw her June 2005 she, the way she presented, was of someone who was having problems, psychological problems, depression, other hints you’re an experienced occupational therapist -----?--Yep.  Yep.

-----you would have met these people?-- She presented to my rooms distinctly with features that I have seen in patients before who have been diagnosed with perhaps a chronic pain syndrome-----

I see?--Or post traumatic chronic pain syndrome.

Uhh mmmm?—Now I didn't have medical specialists report to hand, all I had to hand was the knowledge that she was certainly quite significantly functionally impaired by pain-----

Yes-----?-- -----and my experience is that the key contributors to that are usually chronic pain, depression or post traumatic stress disorder.

Mr Hoey you would really need to be able to separate those things out, wouldn't you?--I guess.

You’d need to know – if you’re really going to sit down and say, ‘All right how much of this lady’s problem is based on an actual physical organic injury or problem and how much is related to depression which can heighten or even create a perception of pain, you would really need to have everything in front of you in order to be able to make that meaningful, wouldn't you?--Well, that’s, yeh-----

Isn’t that true?--I certainly feel better informed having a full barrage of medical specialists reports when I met with this woman in February 2007.”

72. [72]
    I do not accept that the plaintiff is capable of sedentary work only. Mr Hoey’s assessment cannot easily be reconciled with the opinions of Dr Pincus and Dr Walden.  In my view there is merit in Mr Feely’s submission that Mr Hoey’s evidence is “ultimately unhelpful”^[107].  Moreover, as Mr Feely submitted, the impression Mr Hoey gave was that he had adopted a position as an advocate for the plaintiff^[108].  In these circumstances, I would make no further award for past economic loss for the period from 1 January 2006.

73. [73]
    The plaintiff is entitled to interest pursuant to s 60 of the CLA.  Mr Mullins submitted that the interest should be calculated on the basis of one-half of the rate for 10 year Treasury bonds published by the Reserve Bank of Australia.  Mr Mullins submitted that the current rate for 10 year Treasury bonds is approximately 5.9 per cent.  He submitted that interest should be allowed at the rate of 2.95 per cent for the period commencing on the date the plaintiff was to start employment.  Mr Feely did not challenge the interest rate or the period.  Accordingly, interest will be allowed on past economic loss of $15,375 at the rate of 2.95 per cent for 4.25 years.  This results in an award of $1928 for interest on past economic loss.

Future economic loss

74. [74]
    Mr Mullins submitted that the plaintiff’s future employment prospects are relatively bleak. He submitted that Mr Hoey’s evidence was particularly significant. He submitted that prior to the accident the plaintiff was readily employable on a part-time or full-time basis as a cleaner, housekeeper, kitchen hand, personal carer, car washer and factory or process worker. He submitted that an appropriate award for future economic loss is $100,000.

75. [75]
    Mr Feely submitted that on the better view of the acceptable medical evidence, the plaintiff does not have any appreciable orthopaedic restrictions that would prevent her from performing the type of work for which she is trained or suited. He also submitted that the psychiatric evidence supported the contention that the plaintiff was unlikely to be prevented from working in the future as a consequence of her mental state. He submitted that the plaintiff was not presently working due to her family circumstances and because she was feigning or exaggerating her difficulties for the purpose of maximising her damages.

76. [76]
    As I have said, I do not accept Mr Hoey’s assessment of the plaintiff’s limited employment capabilities. I am satisfied that the plaintiff has exaggerated the effect of the injuries. Moreover, Mr Hoey’s assessment is inconsistent with the evidence of Dr Pincus and Dr Walden, which I do accept. Mr Feely submitted that there should be no allowance for future economic loss.

77. [77]
    Dr Walden said that at the time of her assessment on 4 April 2006, the plaintiff was still experiencing some symptoms such as occasional nightmares^[109].  She expects that the plaintiff will continue to have such symptoms indefinitely^[110].

78. [78]
    Dr Walden expressed the opinion that the plaintiff faced an increased risk of suffering a major depressive disorder in the future. She gave the following evidence:

“A person who has suffered a major depressive episode or a major depressive disorder is significantly higher at risk at suffering a further major depressive disorder or episode by reason of having suffered one in the first instance?--Yes, the risk goes up.  As I say from about 20 per cent of the population at some point will have a diagnosable depressive disorder that is or should be treated.  Once people have had one defined episode and treatment, they’re risk of a second is about 50 per cent.  So, their risk is increased compared to the general population.”^[111]

79. [79]
    In the circumstances, this is a suitable case for a global assessment of future economic loss. Section 55 CLA provides:

“55When earnings can not be precisely calculated

3. (1)
   This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

3. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

3. (3)
   If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

3. (4)
   The limitation mentioned in section 54(2) applies to an award of damages under this section.”

80. [80]
    I am required by s 55(3) to state the assumptions on which the award is based and the methodology used to arrive at it. In Ballesteros v Chidlow & Anor^[112] Fryberg J said:

“What is sufficient to enable compliance with the subsection? ‘Assumptions’ and ‘methodology’ operate in tandem in the provision, and the one throws light on the other.  Both words have overtones of at least quasi-mathematical meaning.  ‘Assumptions’ could, of course, refer to the facts found by the judge upon which the award is based.  In my view that would be a most inappropriate use of the word, and it seems unlikely that it was intended in this context.  Apart from anything else, the subsection would be unnecessary if that were the meaning, since judges must in any event state their findings of fact.  In the context of making a global award where, ex hypothesi, precise calculation by reference to a defined loss is impossible, it is much more likely to have been intended to refer to assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure; or to similar facts; or to similar facts or sets of facts used by the judge to confirm or cross-check a global figure selected by making an experienced guess.  That in turn suggests that ‘methodology’ does not refer to anything too demanding.  In this context, an experienced guess is a legitimate methodology, although if possible it should be dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude.”^[113]

81. [81]
    In arriving at the appropriate award I have had regard to the following factors:

• the plaintiff is presently 35 years of age and has a further 30 years of working life until normal retirement age;
• she suffered relatively minor physical injuries from which she has made a good recovery;
• she suffered a moderate psychiatric injury from which she has also made a good recovery;
• while there is no present obstacle to the plaintiff working in the fields in which she has experience, there is some prospect that she will suffer a major depressive disorder in the future.
• the plaintiff will respond to psychiatric treatment so that any absences from work are likely to be relatively short.
• the plaintiff’s employment is likely to be in the same fields she has previously worked in.

82. [82]
    In the circumstances, I would allow $40,000 for future economic loss.

Past Care

83. [83]
    Damages for gratuitous services are governed by s 59 CLA which states:

“(1)Damages for gratuitous services are not to be awarded unless –

1. (a)
   the services are necessary; and

2. (b)
   the need for the services arises solely out of the injury in relation to which damages are awarded; and

3. (c)
   the services are provided, or are to be provided –

1. (i)
   for at least 6 hours per week; and

2. (ii)
   for at least 6 months.

…”

84. [84]
    The plaintiff cannot recover damages for any inability to render gratuitous services to her husband and children: CSR Ltd v Eddy^[114], and Kriz v King & Anor^[115].

85. [85]
    Apart from the plaintiff’s own evidence of a need for gratuitous assistance, the following witnesses were called in her case:

• Vera Boskovic, aunt of the plaintiff’s husband;
• Divna Boskovic, Vera’s daughter.

86. [86]
    Mr Mullins submits that the provision of care for the children and the plaintiff is not easily divisible. He submits that the provision of care by Vera Boskovic and Divna Boskovic was to the plaintiff on the one hand and to the family as a whole on the other. He submits that apart from the specific care that was given to the children alone such as dressing and preparation for school including making school lunches, the care provided to the plaintiff by way of cooking, cleaning, washing, housework and other assistance would have been the same whether the children were present or not. He submits that the length of time in carrying out cleaning, cooking and washing would have been similar and accordingly no discount should be made in respect of such matters.

87. [87]
    The plaintiff said that for the first six months after the accident she required domestic assistance every day for approximately three to four hours^[116].

88. [88]
    On 8 July 2003 the plaintiff travelled to Melbourne and secured the discharge of her husband from the Box Hill Mental Hospital. She said that following his release Mr Boskovic was so heavily medicated that he required very little actual care^[117].

89. [89]
    In my view, it is necessary to bear in mind that the children would have required considerable assistance. Jovana was seven years of age and Tamara was six years old. I do not accept the evidence of the plaintiff and the other witnesses that Mr Boskovic did not require considerable care.  In my view, much of the domestic assistance provided would have been devoted to caring for him.

90. [90]
    In November 2003, Mr Boskovic’s mother travelled from Croatia and stayed with the family for six months^[118].  Mr Boskovic’s mental state was plainly a source of considerable concern to the family.

91. [91]
    It is perhaps surprising that Mr Boskovic was not called as a witness.  Mr Feely submits that in the circumstances the rule in Jones v Dunkel^[119] applies.  He submits that the unexplained failure by the plaintiff to call Mr Boskovic leads to an inference that his evidence would not have assisted her case.  The plaintiff was unable to state why her husband was not being called to give evidence^[120].  Mr Feely recognised that pursuant to s 53 Motor Accident Insurance Act 1994, the insurer could call the insured person as a witness and with the court’s leave cross-examine him.

92. [92]
    I do not attach any significance to the fact that Mr Boskovic was not called as a witness because in my view the necessary findings of fact are able to be made on the evidence that was adduced.

93. [93]
    I accept the evidence of Divna Boskovic that by November 2003, the plaintiff was capable of performing all of the usual household chores, although perhaps a little more slowly and with a degree of discomfort^[121].  Divna Boskovic said that after November 2003, her visits to the family were largely social occasions^[122].  By that stage, of course, Mr Boskovic’s mother had travelled from Croatia to stay with the family.

94. [94]
    The plaintiff’s evidence of the extent to which she required gratuitous assistance is unsatisfactory. In my view, Divna Boskovic’s evidence is consistent with statements made by the plaintiff in November 2003. The plaintiff was assessed by Nadia Brandon-Black, musculoskeletal exercise physiologist on 26 November 2003. In her report dated 26 November 2003^[123] Ms Brandon-Black said:

“(The plaintiff) reported that she was under ‘a lot of stress at home’ as her husband is suffering from ‘bipolar disorder’ and she states that she ‘has to do everything’ around the home.”^[124]

95. [95]
    In her discharge report dated 5 January 2004 Ms Brandon-Black said:

“Ms. Boskovic states that she would continue with her home program 3 times per week.  She reported that she ‘does not have the time’ to attend the gym as she is ‘constantly’ looking after her ‘sick husband and children’”.^[125]

96. [96]
    As I have mentioned, in July 2003 Mr Boskovic was released from the Box Hill Mental Hospital to the plaintiff’s care. In August 2003, the plaintiff commenced receiving a carer’s pension^[126].  It was common ground that the carer’s pension was payable to an Australian resident providing constant care to a person on the disability support pension.  The expression “constant care” is defined as providing personal care to the person on a daily basis for a significant period.  The term “significant period” is defined as meaning that the carer is reasonably expected to provide the equivalent of a full-time working day of personal care to the person.  The expression “personal care” is defined as care to the actual person, such as assistance with showering, dressing and feeding^[127].  The plaintiff claims that she did little more than watch her husband^[128], but I cannot accept that.

97. [97]
    Curiously, the plaintiff’s statement of loss and damage^[129] claims that from the date of the accident Mr Boskovic provided gratuitous assistance to the plaintiff.  That cannot be reconciled with the plaintiff’s evidence.

98. [98]
    I am satisfied that the plaintiff required gratuitous assistance for two hours per day for a period of six months. Allowing two hours per day for that period results in a total of 364 hours (182 days x 2 hours). Mr Mullins submitted that the appropriate rate was $16 per hour. Mr Feely did not suggest that a different rate was appropriate, although he submitted that the plaintiff had not satisfied the prerequisites for an award of gratuitous services. For the period of six months commencing from the date of the accident I would therefore allow $5,824 for gratuitous services.

99. [99]
    The evidence of Divna Boskovic satisfies me that from November 2003 the plaintiff was capable of performing domestic chores. Moreover, Dr Pincus in his report dated 13 February 2007 said:

“With respect to limitations, Ms Boskovic volunteered – ‘I do everything that I have to do as mother and wife’.  She does all the home duties, getting some assistance from her husband and mother-in-law.  She told me specifically that she is able to do all the household chores.  She was not able to indicate any limitations with these activities.  She does avoid gardening.  She does avoid bike riding with the children.  She did start playing tennis again recently with her daughter and she has kept playing, though she said it hurts afterwards.  She can pick up her baby, but she is sore afterwards.”^[130]

100. [100]
     In respect of the period after November 2003, there are aspects of the plaintiff’s statement of loss and damage that cannot be reconciled with the evidence. According to the statement of loss and damage, Divna Boskovic provided gratuitous assistance to the plaintiff from the date of the accident to 21 July 2006^[131].  Divna Boskovic denied performing the tasks that are set out in the statement of loss and damage^[132].

101. [101]
     As indicated, I am satisfied that the plaintiff was capable of performing domestic chores from the end of November 2003. Although the plaintiff’s depression precluded her from returning to work until the beginning of 2006, it is clear from Divna Boskovic’s evidence that the plaintiff was performing household chores by November 2003. I would therefore make no further allowance for past gratuitous assistance.

102. [102]
     Interest will be awarded at the rate of 2.95 per cent on the sum of $5,824 for a period of 4.25 years ($730).

Future Domestic Care

103. [103]
     Mr Mullins submits that the plaintiff will require ongoing domestic care and assistance for the rest of her life. He submitted that based on Dr Tomlinson’s evidence the plaintiff requires four hours per week. He submitted that allowing that sum for a period of 48 years yielded $69,624.  However, in the event that Dr Tomlinson’s evidence was not accepted, Mr Mullins submitted that an appropriate award for future domestic care and assistance was $25,000^[133].

104. [104]
     I do not accept Dr Tomlinson’s evidence, nor do I accept Mr Hoey’s evidence in relation to the plaintiff’s ongoing difficulties.  In the circumstances, any award for future domestic assistance must be limited to any period during which the plaintiff suffers a major depressive episode.  In the circumstances, only a global assessment can be made.  In my view, the plaintiff is likely to respond to appropriate psychiatric care and remain capable of performing domestic chores notwithstanding that she may be unable to carry out paid employment due to relatively short periods of depression.  In the circumstances, an appropriate award for future domestic assistance is $5,000.

Special damages

105. [105]
     The parties agreed that special damages amounted to $11,467.40^[134].

Future special damages

106. [106]
     Mr Mullins submitted that $2,000 should be awarded for future special damages. Mr Feely did not dispute that^[135].

Rehabilitation and other costs paid by the second defendant

107. [107]
     It was agreed that the plaintiff’s damages should be reduced by the amount of rehabilitation and other costs already paid by the second defendant amounting to $9,120.64.

Summary of damages

108. [108]
     There will be judgment that the second defendant pay the plaintiff $84,203.76.

109. [109]
     I will hear submissions in relation to costs.