Harris v State of Queensland[2014] QDC 35

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 30 October 2009 and in the course of her employment, as an admissions clerk at the Maryborough Correctional Centre and whilst on a walkway at that centre, the plaintiff was struck from behind by a trolley that was being used by another employee. Consequently, the plaintiff suffered injury in the nature of ruptured ligaments in her left ankle.

2. [2]
   Liability for that incident and for that physical injury was admitted by the defendant. However, the plaintiff’s claim was also made for a psychiatric condition or injury, described as “depression”^[1]and preceded upon the basis of seeking compensation by way of damages, for the entire composite state of her resultant condition from this incident.

3. [3]
   Apart from admitting the occurrence of the physical injury, the defendant put in issue the nature and extent of any consequent liability for injury of the plaintiff, on the basis that:

“(i) It is a matter for expert opinion;

2. (ii)
   There is conflicting evidence as to the nature and cause of the plaintiffs’ alleged injuries;

3. (iii)
   The plaintiff fully recovered from her left ankle injury after surgery which took place on 14 April 2010;

4. (iv)
   Any ongoing physical symptoms experienced by the plaintiff are unrelated to the circumstances of the accident referred to in paragraph 5 of the statement of claim (‘the accident’);

5. (v)
   Any ongoing psychiatric injury is a result of non accident related factors including the plaintiffs’ relationship issues;

6. (vi)
   The plaintiff has fully recovered from her accident related injury;

7. (vii)
   The plaintiff has no entitlement to seek damages in respect of any injury for which she has not been assessed or otherwise accepted as complying with the requirements of Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003.”^[2]

4. [4]
   Despite the pleading set out in (vii) above and having regard to the decision in Barraclough v WorkCover Queensland^[3], it was later expressly conceded that:

“Despite the plaintiff being assessed only for the injury ‘soft tissue injury – lateral ligament rupture’, that she is entitled to damages at common law for the full extent of the illnesses and injuries flowing therefrom. This includes chronic regional pain syndrome or neuralgic pain, if the court comes to the conclusion that the plaintiff is suffering from those conditions.”^[4]

5. [5]
   Accordingly the issues to be determined are as to:

1. (a)
   The nature and extent of the injuries suffered by the plaintiff and any consequential disability or incapacity, in respect of her left lower limb and any psychiatric or psychological injury, as caused by the defendant’s negligence;

2. (b)
   Whether the plaintiff has breached her duty to mitigate her loss; and

3. (c)
   The assessment of damages.

The nature and extent of the plaintiff’s injuries

6. [6]
   It is not in issue that as a consequence of the incident for which the defendant has admitted liability, the plaintiff suffered ruptured ligaments in her ankle. After this injury was initially not diagnosed, with a period of non-beneficial physiotherapy being endured by the plaintiff, her ruptured ligaments were surgically repaired by Dr Mullen, on 14 April 2010.

7. [7]
   That surgery was considered to be successful and from a mechanical perspective, the evidence supports relatively minor residual impairment and not such as would have prevented a return to work, before now.

8. [8]
   The complication is that the plaintiff has and still continues to present as suffering pain in her left lower limb, to such an extent that she has not been able to return to any work and claims to be hampered and limited in respect of mundane ordinary activities of life and, in addition to her physical injuries, the plaintiff claims for a depressive illness, as evidenced by symptomatology that emerged in March or April 2011. However, and as will be seen, the development of that condition is itself complicated, in being also contributed to by other significant circumstances and which are not related to the incident for which the defendant is liable.

9. [9]
   Whilst it was not in contention and may be accepted that the plaintiff is entitled to damages for the full extent and effect of the injuries that are found, on the balance of probabilities, to be causally related to the incident for which the defendant is liable, this is not a case where all of the intricacies of the differing expert medical assessments and diagnoses may be avoided. This is because there are differences of view expressed in the evidence, as between the experts from different specialties and revision of earlier expressed views, by some expert witnesses, in the light of later reports obtained from other experts. Moreover some findings in relation to the explanation for the plaintiff’s ongoing symptoms, particularly in relation to her pain, will be necessary in order to deal with the contentions as to failure to mitigate loss.

10. [10]
    For the plaintiff and although in some of the earlier diagnoses of her condition, various references are made to causalgia or Complex Regional Pain Syndrome (“CRPS”), she seeks to place particular emphasis upon concessions made by the medical witnesses as to the potential for there to be a neuropathic contribution to her ongoing pain. That is, a contribution having a basis in nerve sensitivity, as a consequence of her physical injuries. However that contention is also not without complication, particularly as arising from the more recent psychiatric assessments of the plaintiff.

11. [11]
    It can first be noted that Dr Mullen, an orthopaedic surgeon, conducted surgery to repair the plaintiff’s ankle ligaments on 10 April 2010 and after noting a slow progress of post operative recovery and the plaintiff’s ongoing presentation of painful symptoms, he expressly recognised the possibility of a Complex Regional Pain Syndrome. However his description was of a mild condition and after radiological investigations, by way of bone scan, MRI and x-ray, his view, after his last consultation with the plaintiff in November 2010, was that she would be able to return to full work duties within three months and with full resolution of her condition.^[5]

12. [12]
    The defendant draws attention to some counter indications particularly noted by Dr Mullen^[6]of absence of any observable signs of significant physical restriction or of colour changes or swelling, as reported by the plaintiff^[7]and his observation of her wearing toe rings and ankle jewellery on the affected limb.^[8]However and as pointed out for the plaintiff, she was not actually challenged on the basis of malingering or that she is, apart from the influence of her psychiatric disorder, feigning or exaggerating her symptoms.

13. [13]
    The plaintiff gave evidence of her continued experience of pain in her ankle. Initially it affected her sleep and she needed the assistance of a walking stick.^[9]She described the pain as being always there, although it varies with what she does but being present just generally walking around the house and being involved in normal everyday household duties. It is worse in the afternoons.^[10]A description recorded by Dr Varghese in mid 2011 was:

“She describes the pain as affecting the whole of her ankle and half up the calf. It’s a dull ache but to the extent that she cannot function. She has 50% to 60% movement but this is restricted because of ‘sharp pain’. She does not describe pain on light touch but ‘guards’ her ankle for fear of pain. Hard pressure will hurt and cause severe pain. Tapping of her ankle will cause pain. She states the ankle still swells and is worse with use and ‘sometimes changes colour going purple to pink’. It also gets ‘hot and cold’…  She has numbness in the same area as the pain.”

The plaintiff described that the pain affects her concentration and that it is a “huge factor.^[11]  She wears a brace on her ankle which was recommended to her by a physiotherapist, except that she uses one with magnets in it.^[12]

14. [14]
    Otherwise the defendant draws attention to the plaintiff’s concessions that:

1. (a)
   She chose to move from a property “in town” with a smaller yard to live on a 5 acre property, which requires a lot of upkeep;

2. (b)
   She can drive both a manual and automatic vehicle;

3. (c)
   She is the captain of a darts team and goes to play darts regularly;

4. (d)
   She goes to watch bands regularly and recently saw Bruce Springsteen perform at a concert;

5. (e)
   She travels into town to regularly catch up with her girlfriends;

6. (f)
   She used to catch up with her father at a café each fortnight or so although that has dropped off  more recently;

7. (g)
   She enjoys a couple of glasses of wine each evening and a few more on weekends;

8. (h)
   She enjoyed a two week holiday in Thailand in April 2012;

1. (i)
   She has a busy household with five children aged between 10 and 17, although the oldest daughter comes and goes;

10. (j)
    She enjoys five minutes here and there of gardening.^[13]

15. [15]
    In short the defendant’s contention is that the physical injury has been repaired by way of surgery and there is only mild ongoing physical impairment, such that if the plaintiff’s psychiatric injury is treated, she will be left with limited ongoing loss of function.

16. [16]
    In these circumstances, it is convenient to initially review the evidence relevant to the psychiatric condition. Significantly it was not until the plaintiff saw Dr Journeaux on 12 November 2010, that any psychological or psychiatric explanation for the plaintiff’s significant reported incapacity in her activities of daily living, was adverted to^[14]. The plaintiff’s evidence was that she had no depression before the accident.^[15]She was first placed on anti depressants by her general practitioner on 22 March 2011, although she had been to counselling sessions earlier in March 2011.^[16]Although the plaintiff was challenged over some inconsistencies in the records relating to various consultations she had in March and April of 2011, it is correctly pointed out that the entry in the medical practice records^[17]reveal references to both marital problems and pain management for her ankle injury in the period from March 2011 to November 2012. The plaintiff’s position is that particularly in circumstances where she was, at that time, consulting Dr Carter in respect of pain management issues relating to her left foot injury, it can be accepted that there may have been some compartmentalisation of her condition, with an emphasis upon her marital situation when dealing with her emotional state in terms of counselling consultations.

17. [17]
    Dr Varghese saw the plaintiff on 23 August 2011. He expressed an opinion that a significant proportion of the plaintiff’s symptomatology was a reflection of her depressive illness, but that such illness was multi-factorial in origin and also due to factors such as the breakdown of the plaintiff’s marital relationship and her ongoing responsibilities to the care of five children.^[18]On that basis, Dr Varghese further opined that the plaintiff’s condition was not completely attributable to any work place injury but rather that any such injury would have been an additional factor in the genesis of her depression and its prolongation.^[19]

18. [18]
    Dr Varghese assessed the plaintiff at the defendant’s request and in his report dated 13 October 2011,^[20]he identified a need for psychiatric treatment, with an increased dosage of anti-depressant medication and some cognitive behaviour therapy, from a psychologist. He diagnosed a depressive disorder and observed:

“With respect to Ms Harris’ physical injury as a result of the trolley accident, I note that her most significant symptom is pain and she reports that this has been diagnosed as CRPS (Chronic Regional Pain Syndrome) otherwise known as Reflex Sympathetic Dystrophy. I note that she had surgery some time after the accident. The overall picture including Ms Harris’ description of pain and disability suggests that psychological issues are of importance in the presentation. This is often the case in CRPS. In other words, it is probable that a significant proportion of Ms Harris’ symptomatology is a reflection of her depressive illness. The implication of this is that as the depression improves with treatment there will be improvement in Ms Harris’ physical symptoms. Given the level of depressive illness it would be unsafe to diagnose a primary somatoform condition.

Ms Harris’ depressive illness is of multifactorial origin meaning that several factors are likely to be of importance including constitutional factors, personality factors and the development adversity. I note that a significant psychosocial stressor is the breakup of the marital situation and she reports difficulties in the relationship for several years. Although she has taken the initiative in leaving the relationship, she reports significant distress.

If Ms Harris has indeed suffered physical injury to her foot impacting on her functioning and bringing about long term impairment, then even after resolution of the depression she may well be left with a chronic adjustment disorder as a reaction to her physical injury and its impact.”

Then and after a review of the “longitudinal history” as disclosed in the then available medical history and reports, Dr Varghese further observed:

“(i) The nature of Ms Harris’ physical injury as a result of the work related incident is not clear to me. I note she has been diagnosed as suffering from CRPS Type (I). This is regarded as being ‘mild’ but on the other hand Ms Harris reports quite severe symptoms impacting on function. What is curious is the longitudinal history of the CRPS symptoms. I note that some four months after the operative procedure done by Dr Mullen, on 19 August 2010 he reported that Ms Harris had recovered pretty well from the CRPS. She was walking well and her range of movement was almost full. Since then there appears to have been deterioration and I do not believe that this is consistent with the natural history of CRPS although admittedly this is not an area of my speciality.

2. (ii)
   The above observation, I believe, lends support to my suggestion in the provisional formulation that a significant proportion of Ms Harris’ physical symptomatology was related to her depressive mood, the implication being that there will be improvement with treatment of the depression. I note Ms Harris is on an anti-depressant (Endep [Amitriptyline]) but in a dose of 50mg which is quite insufficient to have an anti-depressant effect. It appears to have been prescribed for pain.

…

5. (v)
   This depressive illness is of multifactorial origin as discussed in the provisional formulation. A significant issue in the genesis of the depression is the breakup of her marriage. The marriage difficulties appear to precede the injury. If in addition Ms Harris has suffered significant physical injury impacting on her function, then this would be another factor in the genesis and prolongation of the depressive illness.
6. (vi)
   I would expect the depressive illness to respond to psychiatric treatment, in particular use of anti-depressants, and with the treatment of the depression I would expect that the physical symptoms will also improve.”

Further, the following is this doctor’s responses to the respective specific questions that were asked of him:

“3. If Ms Harris has been subjected to other stressors outside of her employment, please estimate the extent to which her current condition is attributable to those outside stressors.

 I consider that her depression is predominantly as a result of outside stressors. It is difficult to assess the extent to which the physical injury has contributed to Ms Harris’ depression as it is likely that a significant proportion of her physical symptoms are in fact a consequence of depression by way of somatimisation. If she has suffered significant physical injury, then this would be an additional factor in the genesis of the depression and its prolongation.

 ….

7. Your assessment of the ability of Ms Harris to work until normal retirement age and the nature of the work and activities she should be able to perform.

 Currently Ms Harris has some impairment from a psychiatric perspective with respect to her ability to work however this is not a permanent state of affairs. I do not believe she suffers from any psychiatric condition that would impact on her ability to work once her depressive illness is treated.”

19. [19]
    Dr Mungomery first saw the plaintiff on 1 May 2012 and provided a report to and at the request of QSuper, in which he recorded the following diagnosis:

“Ms Rosemary Harris is a 37 year old woman who presents with having sustained a psychiatric injury as a result of a work related left ankle injury on 30 October 2009, during her employment with Department of Community Safety. This injury would be considered consistent with a Major Depressive Disorder. Additional precipitating stressors for this psychiatric injury would also include separation from her husband in April 2011, financial hardship associated with difficulties in their family transport business, and the demands of providing care needs for her five children.

Since starting anti-depressant medication and undergoing regular psychotherapy, she has had a partial improvement in the severity of her mixed depressive and anxiety symptoms. Ms Harris currently presents with features consistent with a Major Depressive Disorder in partial remission.

This injury would not be considered an aggravation of any pre-existing psychiatric condition.

In the absence of any identifiable physical causes for her pain and impairment, Ms Harris’s presentation would also be considered consistent with a Pain Disorder due to a general medical condition and psychological factors.”^[21]

Also and after noting that the plaintiff appeared to have gained some benefit from some initial anti-depressant medication at a relatively low and non-therapeutic dose and some support of psychotherapy, Dr Mungomery noted that she had not been seen by a consultant psychiatrist for treatment and considered that she had capacity to achieve further recovery and reduction in her symptoms. Although he considered it unlikely that she would ever return to her role as an administrative officer within the corrective services environment, Dr Mungomery said:

“With further stabilisation of her depressive illness Ms Harris would be considered likely to be able to return to alternative employment outside the Department of Correctional Services that accommodates the enduring pain and impairment associated with her injury on a part time basis within the next three to six months and a full time basis possibly within the next six to twelve months.”^[22]

20. [20]
    In a subsequent report to Q-Super dated 7 May 2003 and in reference to a review of additional collateral information and documentation, particularly in relation to then available medical reports and although he observed that he was “unable to exclude the intentional or unintentional production of symptoms motivated by external incentives in relationship to her reported levels of pain based upon the evidence provided” and noting the currency of the context of the common law claim which he noted “may also be acting as an additional perpetuating factor for both her depressive symptoms and chronic pain”, Dr Mungomery provided the following diagnosis:

“Primary diagnosis of Ms Harris’s medical condition would be considered consistent with residual features of a major depressive episode. She would also meet criteria for an adjustment disorder with depressive mood of mild severity. She may have also developed a secondary pain disorder given the ongoing reports of pain being a significant focus of her clinical presentation despite medical evidence supporting a general recovery from her work related ankle.”^[23]

He considered her to be presenting with an impairment of 2.5 to 5% based upon AMA guidelines. He also provided the following responses to the respective specific questions:

“6. What is the member’s prognosis?

Ms Harris’ prognosis would be considered good with the anticipation of her capacity to have further recovery from her depressive illness with the passage of time and resolution of a number of the current perpetuating stressors. It would be anticipated that resolution of current common law claim and superannuation matters will facilitate her further recovery and rehabilitation back into the workplace. It would also be anticipated that as the commitments associated with caring for her five children reduces with the passage of time this will also allow her to return to the workforce.

…

7. Is there any other treatment which you would recommend which would assist the member in their recovery?

It is noted Ms Harris since last reviewed has yet to be reviewed by a consultant psychiatrist to explore additional medication and psychotherapy strategies to assist in achieving further recovery from her depressive illness. It is noted she appears to have also been reluctant to be involved in a dedicated pain management program. It would be considered both these treatment strategies would likely facilitate further recovery from her depressive illness and assist with her psychological adjustment to any residual pain issues. Ms Harris does not appear from the information provided to have been trialled on any anti-depressant medication of therapeutic doses despite previous recommendations that further recovery from her depressive illness would be facilitated by such in our last report and by psychiatrist, Dr Varghese. It would be anticipated that her depressive illness is likely to respond to anti-depressant treatment which may also have additional pain modifying benefits.”^[24]

21. [21]
    Returning to other expert medical evidence in relation to the plaintiff’s condition, Dr Carter practices as a specialist in anaesthetics and pain medicine. He began treating the plaintiff in April 2011 and has provided a number of reports in respect of her condition. In his first report, dated 14 April 2011, he diagnosed a neuropathic component to the plaintiff’s symptomatic pain^[25], which he explained as “pain due to nerve sensitivity rather than specific injury to the body”.^[26]Significantly, in that report he also recorded that he had commenced the plaintiff on a dose of antidepressant medication because of his identification of evidence of depression. He subsequently observed that his observation of high levels of depression, anxiety and stress, had not improved on reassessment, eight months later and that her condition was “complicated by psychological/psychiatric factors … best managed by experts in this area of practice”.^[27]

22. [22]
    In later reports he specifically identified her ongoing condition as a Complex Regional Pain Syndrome (“CRPS”).^[28]In a report dated 26 May 2011 and directed to a WorkCover claims manager, he indicated a treatment plan involving a “multidisciplinary pain management program” and otherwise noted improvements in her sleep patterns and reduction in pain levels, as a consequence of treatment by a combination of antidepressant medication and pregabalin, which he described as “a specific agent for the treatment of neuropathic pain”.^[29]He also explained that what was identified as a less than therapeutic dose of antidepressant medication was and could only be prescribed by him (within the constraints of his practicing limitations) for pain management.^[30]He further conceded that he was not referred to the reports of the psychiatrists until about one week before he gave evidence^[31]and he agreed that, in some respects, his treatment of the plaintiff has been hampered by not having more timely access to those reports.^[32]

23. [23]
    In Dr Carter’s report dated 23 February 2012^[33]he repeated his earlier assertions that “with the resolution of much of the plaintiff’s pain she should be in a position to commence a return to work program” and that he supported her involvement in an appropriate pain management program towards this end. His evidence to the court remained supportive of involvement in such a program and in terms of reference to available literature, he initially identified a statistical expectation of a restoration of function in terms of coping with any ongoing pain, at 68 per cent.^[34]However he identified that the data was primarily concerned with upper limb injuries and subsequently clarified that in addition to addressing her psychiatric profile, regard would be necessary to the nature and demands of the proposed work for the plaintiff, particularly as to physical demands such as any requirement to be on her feet.^[35]

24. [24]
    This evidence was, to some extent, in conflict with the evidence of Dr Atkinson, a neurosurgeon and pain medicine physician, who examined and assessed the plaintiff on 23 August 2011, at the request of the defendant. Essentially, that conflict came down to whether or not a diagnosis of CRPS was appropriate and in turn as to whether the so-called “Budapest Criteria” was an appropriate assessment tool for that purpose. The view expressed by Dr Atkinson was that the plaintiff “does not have the symptoms and signs necessary to validate Complex Regional Pain Syndrome type 1 under AMA number 5”, but he assessed under AMA 5, chapter 18, “an additional 1 per cent whole person impairment as a result of her chronic pain” and otherwise noted that her ankle injury is best reported on by an orthopaedic surgeon and her depressive disorder best reported on by a psychiatrist.^[36]

25. [25]
    For present purposes it is neither necessary nor desirable to attempt to analyse the differences between these doctors, or as to whether the Budapest Criteria or AMA 5 presents as the most appropriate assessment tool for diagnosing CRPS. In the first instance it may be noted that Dr Carter concedes a primary issue noted by Dr Atkinson, in that the Budapest Criteria (upon which Dr Carter relied) allows and he acted in this instance upon only subjectively reported symptoms, in making his diagnosis.^[37]On the other hand and whilst he maintained a view as to the predominance of psychological issues in his assessment of the plaintiff’s condition, Dr Atkinson did concede that in determining sources of pain, medicine is not an exact science and that whilst he had in his report expressed some agreement with a reported diagnosis of a Dr Hartshorn that the plaintiff had neuropathic pain associated with her injury, he had modified that opinion, due to the absence of knowledge of mechanism of her injury, to having “reservations” as to neuropathic pain.^[38]

26. [26]
    Moreover, and as Dr Atkinson emphasised and Dr Carter also explained, the final aspect of the Budapest Criteria requires that all conditions be excluded before making a diagnosis of CRPS. In that regard, Dr Atkinson identified the psychological issues as the driving issues with the chronic pain, having the benefit of the psychiatric assessments of Drs Mungomery and Varghese, whereas and as has been noted and whilst Dr Carter identified a depressive aspect at the outset, he did not have this benefit until shortly before he gave evidence.

27. [27]
    The real import of Dr Atkinson’s evidence and upon which Dr Carter specifically agreed and which also gains considerable support from the opinions of the psychiatrists and was also supported by other medical specialists, is as to the expected benefit of the completion of a multi-disciplinary pain management program. This is particularly because he is directly involved in such, as the director of a clinic in the provision of such programs at the Wesley Hospital in Brisbane. In his evidence Dr Atkinson described the Wesley programme (after explaining the importance of modification or cure of any depressive condition) as follows:

“It involves the patient being in a programme with between six and ten people – we find if its less than that or more they don’t get the same advantage. The patient has a programme that goes from eight hours a day for ten days. The idea is to change the patient’s attitude and also to help them get physically fit and to explain and educate them on issues of pain and the meaning of pain and – so they have physiotherapy, occupational therapy, exercise physiology and an educational psychologist, which is supervised by a nurse and – and a medical practitioner and myself. So this is a complimentary programme to rehabilitate the patient and readjust them and get them back to work in normal daily activities and a happy life.”^[39]

28. [28]
    Dr Atkinson went on to observe in his evidence-in-chief that his view was that the plaintiff’s treatment of her depressive disorder had not been adequately managed. He said:

“I think that’s been inadequately managed and, you know, it would be – if she could have multi-disciplinary rehabilitation – I don’t – I think – I think it’s unlikely it would have worked while there was litigation and the stress in her life, but if we could modify that after the litigation has resolved, I think she’ll have a – a positive approach and will be able to go back to employment … . It depends on the patient’s motivation and the resolution of domestic issues, but – but I would expect six months as a – as an average.”^[40]

29. [29]
    Dr Atkinson also confirmed the approximate cost of the programme at the Wesley Hospital at $5,000.00, with an additional $100.00 per night for accommodation. He also explained that five such pain clinics have also been established in the public hospital system, with the nearest for the plaintiff being at Nambour. His description was:

“But there’s quite a vigorous one up at Nambour Hospital, but the waiting lists are longer.”^[41]

30. [30]
    Dr Journeaux, a consultant orthopaedic surgeon, examined the plaintiff, at the request of WorkCover, on 12 November 2010.  He then concluded that there were “certainly some signs of nerve hypersensitivity … and she may have an element of causalgia” (former terminology for CRPS). He noted a poor prognosis given her lack of progress over the preceding six months, in the absence of pain management including attendance at a pain management program, an intervention which he also opined would be of benefit to the plaintiff.^[42]

31. [31]
    Although and in these circumstances and having regard to the table in AMA 4, he then assessed a 13 per cent lower extremity impairment (which may be converted to a 5 per cent whole person impairment).^[43]However when called as a witness in these proceedings by the plaintiff, he explained that his reference to causalgia or CRPS was to a type of neuropathic pain but that having, at the request of the plaintiff’s solicitor reviewed further materials including the reports of Drs Mungomery  and Varghese and having re-examined the plaintiff on 4 June 2013, in a further report dated 4 June 2013 and after noting that the plaintiff had, despite the technical success of the operation performed by Dr Mullen, what can only be described as ongoing neuropathic pain subsequently, he proceeded to record:

“In addition to these comments it should be pointed out the claimant had significant psychosocial aspects in respect of her presentation which have been identified clearly in the psychiatric reports. I note there is essentially a diagnosis of underlying depression as a result which is highly relevant and a negative prognostic factor.

I note the claimant subsequent to the surgery was diagnosed as having the possibility of Complex Regional Pain Syndrome although I note the comments of Dr Atkinson which would tend to refute this diagnosis. I am in general agreement with him in this regard. It is more likely that any pain issues have a basis in the somatic manifestation of psychological distress rather than being related to a diagnosis such as Complex Regional Pain Syndrome.

Clearly the claimant has ongoing and significant symptomatology as described in the body of my report and has not significantly improved in my view. It is highly likely that there are significant psychosocial factors present in her current presentation.”^[44]

32. [32]
    In his evidence-in-chief and when specifically asked his view as to whether the plaintiff had neuropathic pain in her ankle Dr Journeaux’s response was:

“Well you can’t discount it, put it that way.”^[45]

In cross-examination, he agreed that, in the light of the psychiatric assessments and his view of the plaintiff’s pain being related to somatic manifestation of psychological distress, it was now inappropriate to assess her using AMA 5 methodology.^[46]In re-examination, he reasserted his conclusion that the opinions of the psychiatrists supported his premise that the plaintiff has “a somatic manifestation of pain rather than a truly physical basis of pain”.^[47]

33. [33]
    As to the plaintiff’s capacity for, or prospects of, return to employment and whilst Dr Journeaux accepted that this was “in the realms of psychological or psychiatric treatment”, he was prepared to disagree with the opinions of Drs Mungomery, Varghese and Atkinson. He expressed a view based on his understanding as statistical probability, having regard to the period she had been out of the workforce of a less than 1 per cent likelihood of her return to work. However that was based on some unproven statistical data, which Dr Journeaux understood to be kept by WorkCover and upon the premise that her capacity for work is really a matter of her motivation to work and ability to tolerate a level of pain sufficient for her to cope with work.^[48]

34. [34]
    Another orthopaedic surgeon, Dr Saxby, who further specialises in disorders of the foot and ankle, examined the plaintiff on 31 August 2011, at the request of the defendant. He concluded a permanent impairment in the nature of mild restriction of ankle motion, equating to a 3 per cent whole person impairment under AMA guidelines. He did not allow for any addition, as might be allowed under chapter 18 of those guidelines for pain. Whilst he noted Dr Carter’s diagnosis of CRPS and whilst also noting that her history and subjective presentation was consistent with such a diagnosis, he could, on his single examination of the plaintiff, find only very little or no objective clinical or investigative findings to support such a diagnosis.^[49]

35. [35]
    By the time he gave evidence, Dr Saxby particularly saw the reports of Drs Mungomery and Varghese as supportive of his approach and his suspicions of underlying psychological factors in the plaintiff’s presentation.^[50]As to the plaintiff’s capability for return to work, Dr Saxby thought that the restriction in ankle motion would only stop performance of the most strenuous tasks and that it was the “psychiatric issue” or “psychological problem” that was the main reason preventing such a return.^[51]Otherwise he conceded that apart from identifying psychological issues as an explanation for reported pain, that the medical profession has no way of making a definitive judgment about the genuineness of pain as a reported symptom.^[52]

36. [36]
    The plaintiff also relied upon a report prepared by an occupational medicine specialist, Dr Hartshorn, dated 18 February 2011. That report related to his examination and assessment of the plaintiff on 14 February 2011. The plaintiff particularly relies on the diagnosis by that doctor of a “current symptom complex … almost certainly overwhelmingly due to the neuropathic pain process rather than due to the structural aspect of the injury itself”.^[53]

37. [37]
    Some care in the assessment of this evidence is necessary because this doctor was not available for cross examination at the trial and it is apparent that his assessment was conducted without the benefit of the later obtained assessments of the psychiatrists, Drs Varghese and Mungomery and which, as has been already noted, were influential in the opinions finally expressed in evidence by other medical practitioners.

38. [38]
    It can also be noted that Dr Hartshorn’s assessment occurred before what is otherwise described as the emergence of symptoms of the psychiatric disorder and the plaintiff’s separation from her husband. Significantly, it can also be noted that Dr Hartshorn also expressed an expectation that the plaintiff was:

“Most likely to successfully return to work activity in clerical or administrative – type work that is primarily performed in a sitting position with an opportunity to stand, stretch and move around on an as-required basis and one importantly that does not have requirement for any prolonged walking, standing or other weight bearing activity.”^[54]

That view was expressed on the prescription of review by and formulation of a treatment plan by a multi-disciplinary team, which he specifically anticipated would include:

“The use of medications known to be useful in the treatment of neuropathic pain, clinical psychology input with respect to pain education and pain management strategies, as well as physiotherapy input, looking to provide an exercise – based rehabilitation side by side with the other treatment modalities.”^[55]

39. [39]
    Whilst the defendant points to difficulties in her marriage relationship predating even her injury, including incidence of domestic violence, which were identified as significantly contributing circumstances of the development of the psychological condition, the plaintiff points also to Dr Varghese’s evidence that despite these “psycho/social stressors” the plaintiff’s history was of coping and presenting without psychiatric illness, prior to her injury and that a depressive condition develops gradually and insidiously, rather than suddenly^[56]and to the acknowledgment by Dr Varghese that her injury was a contributing factor to the development of her psychological condition.^[57]

40. [40]
    Whilst it will be necessary to return to some further detail of Dr Mungomery’s evidence in this regard, he also was prepared to identify the work related injury and ongoing pain experienced by the plaintiff, as a substantially contributing factor to the plaintiff’s psychological condition.

41. [41]
    It must be concluded, on the evidence that the plaintiff’s ongoing condition and particularly her ongoing disability due to the painful symptomatology of her left ankle is significantly, if not predominantly driven by psychological factors, but it is not possible to entirely rule out some neuropathic contribution.

42. [42]
    In any event and even were it possible to rule out any neuropathic contribution and subject to the considerations of separation of the effects of concurrent causes of injury and the issue of mitigation of damage, the plaintiff has prima facie established that her condition, including the psychological component, was caused or at least materially contributed to by the incident for which the defendant is liable.^[58]

43. [43]
    In those circumstances, an evidential burden lies on the defendant to adduce evidence that would allow, with some degree of precision, for separation of the effects of any separate causes of that condition and for which the defendant is not separately liable. Otherwise, the plaintiff must on the whole of the evidence satisfy the court as to the extent of the injury caused by the defendant’s negligence.^[59]

44. [44]
    In this regard the defendant points to the evidence of other significant factors identified as making contribution to her psychological condition, including a serious incident of domestic violence in 2012, which Dr Varghese saw as itself capable of having caused her depression.^[60]

45. [45]
    Although the plaintiff did attempt to downplay the significance of this and her other life circumstances, Dr Varghese and Dr Mungomery each identified other factors which were unrelated to the work incident and which were affecting her condition.

46. [46]
    Dr Mungomery identified the three main stressors or contributing factors under the following descriptions:

1. (a)
   The work related injury and ongoing pain;

2. (b)
   Relationship issues;

3. (c)
   Financial stressors relating to the family transport business.^[61]

47. [47]
    Dr Varghese identified the significant stressors affecting his diagnosis of the plaintiff’s condition and which were unrelated to the work incident as her marital situation (which included the disintegration and breakdown of that relationship, including the incidents of domestic violence) and her difficulties in coping with running a busy household (including coping with some problems relating to her older daughters.^[62]Dr Mungomery also saw the July 2012 incident of domestic violence as an extremely distressing event and sufficient in itself to have caused a depressive illness and he sought to indicate his view as to the relative contribution of the three stressors he had identified, by ascribing a one third contribution of each of them to the plaintiff’s current psychiatric state.^[63]

48. [48]
    Where appropriate, adjustment to damages must accord with the assessment of the degree of probability of non-accident related or non compensable condition affecting the losses.^[64]There is no evidence that the plaintiff was suffering a psychiatric condition before she was injured and therefore this case is not simply one of identifying the relevant extent of any contribution of a pre-existing condition, for example. The particular difficulty which belies the simplicity of the approach of Dr Mungomery, is the coincidence and interrelationship of the factors, both injury related and non-injury related, in the assessment of her psychiatric condition and the significance of understanding that condition, as it contributes to the plaintiff’s overall or composite presentation. However the role of that condition in explanation of her current presentation is clear and in turn has been contributed to by both injury related and non-injury related factors, in an intertwined and accumulating sense. There also remains the extent to which there are concessions as to the prospect of underlying neuralgia.

49. [49]
    In these circumstances, the plaintiff has sufficiently established a causal connection between the defendant’s admitted negligence and the full extent of her current incapacity and the defendant has not, on the evidence, sufficiently precisely established any separate effects of the non-compensable contributions to the plaintiff’s psychiatric condition or more particularly, her current incapacity.

50. [50]
    However it is clear that the evidence as to the role played by the plaintiff’s identified psychiatric condition, does serve to highlight not only the need for treatment of it but the particular importance of that treatment occurring in the context of involvement of a multi-disciplinary pain management programme, such as was recommended by Dr Carter and Atkinson and generally endorsed by the other specialists who gave evidence.

51. [51]
    Accordingly and subject to the issue of mitigation of loss, the plaintiff is entitled to recover for the full extent of her current state of incapacity.

Mitigation of damage

52. [52]
    Accordingly the next issue to consider is as to mitigation of damage or loss. At common law a plaintiff is regarded as having a “duty” to take all reasonable steps to mitigate the loss consequent on any negligence for which a defendant is liable, including by undertaking rehabilitation such as by medical treatment.^[65]The defendant bears the onus of proving that the plaintiff unreasonably failed to mitigate the damage.^[66]

53. [53]
    Although there has been criticism of the use of the word “duty” in the common law formulation, as a misnomer^[67], the obligation is statutorily recognised as applicable to claims of this type, in such terms, in s 267 of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”), as follows:

“Section 267 - Mitigation of loss

3. (1)
   The common law duty of mitigation of loss applies to all workers in relation to claims or proceedings for damages.

3. (2)
   The worker must satisfactorily participate in rehabilitation.

3. (3)
   Without limiting subsection (2), a worker must satisfactorily participate in any return to work program or suitable duties arranged by the insurer.

3. (4)
   The worker’s duty mentioned in this section is in addition to any duty the worker may have under section 231.”^[68]

54. [54]
    There is no statutory proscription of consequence for breach of s 267 and no authority dealing with the effect of this provision, was cited. However the defendant contends that some particular significance should be ascribed to the mandatory terms in which sub-sections (2) and (3) are expressed, with the result that the plaintiff’s obligation may be regarded as more stringent than at common law and that any failure to participate in rehabilitation (reasonable or unreasonable) may result in a reduction of damages.

55. [55]
    I do not accept these contentions. First, it can be noted that the section is primarily concerned with stating the application of the “common law duty of mitigation of loss” to proceedings for damages, such as this one. Secondly, the obligations in sub-sections (2) and (3) are expressed in terms of a requirement to “satisfactorily participate” in rehabilitation and/or any arranged return to work programme or suitable duties and that is not inconsistent with an application of a test of reasonableness, which is contextually confirmed by the provisions of s 268. Thirdly, there is nothing to contradict the application of the common law in requiring that the defendant bear the onus of proving the failure to mitigate and do that by establishing that the failure to participate in or undergo some rehabilitative option was unreasonable on the part of the plaintiff. In Fazlic v Milingimbi Community Inc^[69], it was observed:

“The court’s concern is not whether the operation may reasonably be performed on the worker. It’s concern is, rather, with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable.”

56. [56]
    Further and in this respect, it is of importance to understand the statutory context for s 267 WCRA, whereby:

1. (a)
   s 208 states that the object of Chapter 4 of the WCRA provides for the management of the injuries of workers and that chapter is “to provide for appropriate medical treatment, hospitalisation and rehabilitation of a worker who has sustained an injury for which compensation is payable.”;

2. (b)
   In the first instance, the statutory insurer is made responsible for the cost of medical treatment and hospitalisation considered reasonable having regard to a worker’s injury and required for the management of an injury sustained by that worker^[70];

3. (c)
   The insurer also has a statutory duty to take “the steps it considers practicable to secure the rehabilitation and early return to suitable duties of workers who have an entitlement to compensation”.^[71]In this regard and although the broader context of the WCRA is concerned with injured workers and their capacity for and return to work, it is of significance to note that this requirement extends beyond return to work or suitable work duties and also to rehabilitation in the sense of the “maximisation of a workers’ independent functioning”.^[72];

4. (d)
   Obligations are placed on larger employers to appoint rehabilitation and return to work coordinators^[73]and to have work place rehabilitation policies and procedures^[74]and s 228 places an obligation on all employers of any injured worker to:

“take all reasonable steps to assist or provide the worker with rehabilitation that the period that the worker is entitled to compensation”; and

5. (e)
   Sections 222 and 223 make more specific provision for the liability of an insurer for rehabilitation fees and costs and whilst there are some limitations provided and also conditions that may be imposed by work cover under a table of costs. For present purposes, it is only necessary to note that, in s 222, it is provided that:

“(1) This section applies if an insurer considers rehabilitation is necessary for a worker for whose injury the insurer has accepted liability.

3. (2)
   In addition to compensation otherwise payable, the insurer must pay the fees or costs of rehabilitation that the insurer accepts to be reasonable, having regard to the workers injury.

…

3. (4)
   The insurer’s liability under this division stops when the worker’s entitlement to compensation stops.”

57. [57]
    All of these provisions are in Chapter 4. However Part 8A of Chapter 3 is headed “When entitlement to compensation stops” and s 144A is directed as the entitlement to weekly payments in lieu of wages. It is then necessary to note s 144B, which provides:

“The entitlement of a worker to the payment of medical treatment, hospitalisation and expenses under chapter 4 for an injury stops when—

1. (a)
   the entitlement of the worker to weekly payments of compensation under part 9 stops; and

2. (b)
   medical treatment by a registered person is no longer required for the management of the injury because the injury is not likely to improve with further medical treatment or hospitalisation.”

Otherwise, the effect of s 119 is that the outer limit of any entitlement to compensation, is the point at which “settlement for damages is agreed or judgment for damages is given”.

58. [58]
    Although there is an essential distinction drawn in this legislation, as between compensation (or statutory entitlements) and damages^[75], there is a necessary interrelationship where damages are recovered and the amount of any damages that is to be paid to a claimant for an injury is to be reduced “by the total amount paid or payable by an insurer by way of compensation for the injury”.^[76]

59. [59]
    The provisions of s 231(4) and 267(4) make it clear that independent or coexistent duties of mitigation of loss are to be applied to all injured workers. Whilst there is specific sanction, relating to suspension of compensation entitlements, provided for breach of the duty in s 231^[77], this will only apply while an entitlement to compensation exists. The difficulty in envisaging any separate operation of these duties, lies in the provisions of s 144B(b) and the need for a determination as required by that provision.

60. [60]
    However the effect of s 267 of the WCRA is to specifically apply the common law duty of mitigation of loss to workers in relation to claims or proceedings for damages. However the further immediate context to that section, in Part 3 of Chapter 5, is that:

1. (a)
   Section 268(1) provides that an insurer may make rehabilitation available to a worker on its own initiative or if the worker asks and subsection (3) makes it clear that where liability has been admitted for damages or an insurer has agreed to fund rehabilitation without such admission, “the insurer must, if the worker asks, ensure that reasonable and appropriate rehabilitation is made available to the worker”; and

2. (b)
   s 269 is directed to dealing with the methodology by which the cost of any rehabilitation provided at the cost of the insurer is to be taken into account in the assessment of damages and particularly when there is an issue as to contributory negligence.

61. [61]
    Whilst none of this detracts from the statutory recognition of the plaintiff’s obligation to mitigate loss, there is also statutory recognition of opportunity for a defendant to identify and propose funding of specific rehabilitative measures.^[78]In the context of the onus upon a defendant, to prove an unreasonable failure to mitigate and depending upon the relevant circumstances consideration as to whether or not such an opportunity was taken advantage of, may be a relevant consideration.

62. [62]
    In this case, the defendant contends that there is proof of a failure to mitigate loss, in respect of a failure of the plaintiff to make reasonable attempts to return to work and her failure to undertake a pain management programme and/or receive appropriate psychiatric treatment.

63. [63]
    The defendant correctly points out that:

1. (a)
   Despite the plaintiff’s return to work on 20 August 2010, as recommended by Dr Mullin and her confirmation that she was provided with the lightest duties that were available in her work place, together with appropriate assistance being made available from co-workers, particularly to assist with lifting tasks and many of the requirements for her to move around the work place and also an escort in and out of the correctional facility^[79], she was only able to complete one half day of the return to work programme^[80]; and

2. (b)
   That, in this context, there is some difficulty in accepting at face value the plaintiff’s contention that she had to cease work because of problems she experienced with memory and concentration issues and pain, when no such issue had been raised with any supervisor at the time.^[81]

64. [64]
    Further the defendant contends that in respect of the broader context of the plaintiff’s return to work generally:

1. (a)
   She conceded that she had not applied for any work or even enrolled in job agencies since the failed return to work programme in August 2010;

2. (b)
   The evidence of Mr Zietek, an occupational therapist, disclosed that he had been prepared to conduct a return to work programme, if the plaintiff had been prepared to volunteer sometime in host employment and that the cost would have been approximately $2,000, when by way of some comparison, the plaintiff had spent $2,735 on a life coaching course; and

3. (c)
   That as the plaintiff confirmed, she was offered assistance with return to work by Q Comp sometime prior 20 October 2011^[82], but when asked in evidence-in-chief as to her response to that she said:

“I recall a man from Q-Comp called me in relation to that. Basically he was trying to assist me to get back to some form of employment. I explained to him that as far as I am concerned I am still employed and I still hold my position and I can’t attend that position, so how – how would I be able to attend another position?”^[83]

65. [65]
    On the other hand, there is some force in the plaintiff’s contentions that all of this proceeds upon the assumption that she was indeed fit for work at these times and therefore ignores the complications of her ongoing pain and disability due to that. Further some consideration must necessarily be given to her personal circumstances as the primary carer for five children in a regional area. It was pointed out that in evidence, the plaintiff explained her position as:

“I feel I’ve done everything that’s been recommended to me by my doctor and – and also things like the alternative therapies and essentially (sic) oils and crystals that are worth a try. I’ve tried everything I can come up with to - to get through this.”^[84]

66. [66]
    Emphasis is also placed upon the reliance of the plaintiff upon the medical advice given by those who were treating her and it was suggested that the following passage is insightful^[85]:

“How do you rate yourself now compared to, say, when you first started to see Dr Carter? --- I have got a better understanding of where I’m at and where my pain is, why its there sort of thing. I’m a lot better with the medication. Prior to that, I really didn’t sleep at all, I was in pain really, really badly. So the medication’s definitely helped. Yeah, he’s – his advices and the way he explained things was very thorough and made me feel like this – this is a real thing, this is not just something that’s in my head.”^[86]

67. [67]
    The plaintiff’s response of course touches on the issue as to the need identified by the psychiatrist for appropriate psychiatric treatment of her and particularly as to the dosage of anti-depressant medication. That was first identified by Dr Varghese in late 2011 and subsequently confirmed by Dr Mungomery. Of particular importance is Dr Carter’s concession of the expected value of the plaintiff’s participation in a pain management programme. He gave the following evidence in cross-examination:

“So if – I certainly won’t ask you to do any crystal ball gazing, but had Ms Harris undertaken a multi-disciplinary pain programme at the times that you recommended it, firstly back in 2011 and, secondly, in 2012, is it likely, in your opinion, that her current symptoms would be far less than they are? - - - Oh, I’d go so far as to say, you know, it is unlikely that she would have needed to come and see me had she been able to attend the pain management set up that she was offered first.”^[87]

Dr Carter then went on to confirm that he had spoken directly to the plaintiff and recommended such a programme to her but that the explanation given to him had been an inability to participate, due to family commitments.

68. [68]
    Further and as has already been noted, the general consensus of the medical evidence was that it could be reasonably expected that participation in such a programme would be an important adjunct to appropriate psychiatric treatment, towards resolving any impediment to the plaintiff’s incapacity for work and in improving her ability to function generally, including as to her ability to manage and live with any ongoing neuropathic pain.

69. [69]
    In this regard and particularly because of the identified extent to which it is likely to be exacerbating the plaintiff’s condition, the identified psychiatric component of it and the identified need for co-existent treatment of an ongoing monitoring of the plaintiff’s psychiatric health, is also an important component. It is of course a concerning feature that the psychiatric component of the plaintiff’s condition has only relatively recently been recognised and acted upon in respect of her treatment, for instance by increased dosage of anti-depressant medication, and it was conceded that there had been some positive responses to this.^[88]Also and as Dr Carter explained, he had first seen the reports of the psychiatrist only shortly prior to giving evidence at the trial.

70. [70]
    Particularly in the context of the recommendation of Dr Carter for engagement with a pain management programme, as recorded in his report of 26 May 2011^[89]and again in his report of 23 February 2012^[90]and Dr Carter’s evidence that he had discussed this face to face with the plaintiff,^[91]and without ignoring the complications of the plaintiff’s location and obligations as a single parent, the evidence indicates that an essential reason why no such programme had been undertaken has been the plaintiff’s own choice not to do so. Such an attitude was evident at trial.^[92]The plaintiff did also concede that had she been convinced as to the benefit of such a program, her family commitments would not have prevented her participation.^[93]However, Dr Mungomery recorded in his report dated 7 May 2013, that the plaintiff was reluctant to participate in such a programme and the plaintiff agreed that when she saw Mr Zietek on 14 February 2013, she told him that she felt that she did not need such a programme and was already seeing Dr Carter.^[94]

71. [71]
    These particular aspects of the evidence seem to confirm a general impression of the plaintiff’s evidence, as typified by the passage described as insightful above, of a person who has been caught in the grip of her painful symptomology, without preparedness to recognize or attempt to deal with anything other than a physiological solution to the problem and her evidence about the way she has sought to manage her condition, has to be seen in that light.

72. [72]
    Bearing in mind that it is the defendant who bears the onus of demonstrating that a plaintiff has unreasonably failed to mitigate loss, the complicating psychiatric contribution to the plaintiff’s condition and which was not discerned until a later point in time, prevents any conclusion that this onus is satisfied in respect of the failed return to the plaintiff’s work place.

73. [73]
    Further and whilst it can then be discerned that over a period of time there was the emergence of a critical need for the plaintiff to have appropriate pain management treatment of the kind that was the subject of the recommendations of both doctors Atkinson and Carter, in conjunction with ongoing treatment for the psychiatric issues, the identification of a point at which there is evidence capable of being regarded as a rejection by the plaintiff, is not in my view, established at any point prior to February 2013, when Mr Zietek was told by the plaintiff that she did not need to be involved in such a programme.

74. [74]
    As pointed out by the plaintiff:

1. (a)
   Although she conceded that there had been discussion with WorkCover of her involvement in a multi-disciplinary pain management clinic or programme in Brisbane, in late 2010 and in the light of Dr Journeaux’s recommendation in that regard, she then had particular difficulties in relation to the care of her children^[95]; and

2. (b)
   Moreover, a distinct problem is the lack of evidence produced by the defendant as to precisely what was then proposed and discussed and that position is not advanced by the record of a communication on 9 December 2010, which on the face of it records an understanding by the WorkCover representative that the plaintiff’s WorkCover claim was expected to end on 18 December 2010 and that this provided no realistic prospect of liability for such a programme being assessed before then. The note goes on to record that any permanent impairment payment made to the plaintiff could be then utilised in that regard.

75. [75]
    The position in this regard is also affected by the evidence as to the emerging nature of the understanding gained, over time, in respect of the full implications of the plaintiff’s condition and particularly the psychiatric component. Although that was evidenced from the point of Dr Varghese’s report of 13 October 2011, there is an absence of clear evidence as to when and how this was specifically brought to the attention of the plaintiff.

76. [76]
    Whilst the defendant correctly contends that the obligation to mitigate is that of the plaintiff, the statutory context as to the defendant’s role in the rehabilitation process, may, as I have noted, be instrumental in demonstrating an unreasonable refusal to so mitigate. There is no contention that there was any subsequent proposal put by the defendant as to the plaintiff’s participation in an appropriate form of multi-disciplinary pain management programme.

77. [77]
    Otherwise the plaintiff points to her reliance upon her medical advice and particularly Dr Carter, who she travelled to Bundaberg to see^[96], that she consulted Dr Winstanley in an attempt to find some surgical solution for her ankle pain and her regular attendance upon a psychologist and a mental health nurse. It is further pointed out that in her Notice of Claim, dated 13 May 2011 (and at p 48), the plaintiff recorded:

“I have asked to do a pain management course but as my file was closed this was not available. I have arranged to see a pain management specialist myself. I have been seeing the pain management specialist each fortnight.”^[97]

It is further pointed out that despite the defendant’s response, on 24 May 2011, being that it was not prepared to meet the costs of any rehabilitation of the plaintiff^[98], there was subsequently, on 17 February 2012 and after the compulsory conference, an offer to fund rehabilitation supported by medical referral, with a suggestion of seeking same from Dr Mullen.^[99]

78. [78]
    The plaintiff then points to some correspondence between the lawyers for the parties, in December 2012 and January 2013 and in which there is reference to the prospect of the funding of a pain management programme, in the context of the functional capacity evaluation to be conducted by Mr Zietek. Notwithstanding that Dr Carter’s recommendation had been made in February 2012 and it is clear from his evidence, that it was not what he was recommending should be undertaken (but nevertheless was approved by him), the defendant approved the cost of the plaintiff’s preference for a pain management course to be provided by a Desley Fraser.^[100]On the plaintiff’s evidence that treatment was provided by Ms Fraser in January 2013 and did not provide any real lasting benefit.^[101]

79. [79]
    In these circumstances, the plaintiff was obviously aware of the need for her to address her pain management. By this time, some steps had been taken in order to address her anti-depressant medication dosage. She must have also been aware by this point in time, that all other attempts to address the disability preventing any return to work, had failed. By then, it must have been apparent to her that she did not “[have] it covered”, as was her evidence.^[102]

80. [80]
    However and in relation to her indication to Mr Zietek on 14 February 2013, there still remains impediment to concluding that this was an unreasonable refusal to seek appropriate rehabilitation towards mitigating her loss. First, it is not necessarily a refusal to do so as opposed to the manifestation of a resistant mindset. Secondly and in respect of the issue of unreasonableness, there is the complication of the psychiatric evidence and co-incidental need for treatment of the psychiatric component of the plaintiff’s condition and the circumstances that have been outlined as to how the position in respect of the plaintiff’s overall condition and precise needs of treatment had been substantially clarified at trial.

81. [81]
    However it is abundantly clear that by the time of this trial, that position in its entirety must not only have been clear to the plaintiff but also that any refusal to engage in the suggested rehabilitative treatment would necessarily be unreasonable. In that regard, it is notable that although it was contended in the written submissions for the plaintiff, that allowance be made for the cost of the multi-disciplinary pain management program at the Wesley Hospital, no such claim was included in the Ex 2, the plaintiff’s written statement (including the schedules setting out the particulars of her claim).

82. [82]
    However that does not transpose to a finding that the plaintiff’s damages should be, in any way, limited to that point in time. Whilst the defendant does not have to demonstrate that the treatment will alleviate the plaintiff’s incapacity^[103], the evidence is very predominantly optimistic, in that regard. However the necessary assessment is as to prospect that it will have that effect and the necessary corollary is that there is the need to assess and allow for the risk that the treatment would not be successful in the plaintiff’s rehabilitation^[104].

83. [83]
    Also, there is the need to have regard to the time that would be involved in arranging and completing such a course and in achieving the necessary outcomes, particularly in terms of regaining sufficient capacity for a relevant return to work. This consideration is particularly caught up with the resolution of the psychiatric component of the plaintiff’s condition and in that regard and notwithstanding that he earlier suggested allowing a period of some six months, after completing a multi-disciplinary pain management programme, Dr Varghese, in his evidence, said he would not in the end disagree with Dr Mungomery’s suggestion of a period of 12-18 months.

84. [84]
    The appropriate approach is to assess the plaintiff’s damages to date, without specific limitation and for the future, to allow for the appropriate rehabilitation and time to effect it and otherwise proceed upon the basis of the overwhelming preponderance of the evidence, that it is likely that the plaintiff’s pre-injury earning capacity will be substantially restored.

Assessment

85. [85]
    It is common ground that as the relevant accident in which the plaintiff was injured, at work, pre-dates the 2010 amendments to the WCRA, damages here fall to be assessed according to common law.

86. [86]
    At the outset, I should record that I am not satisfied that any allowance should be made for any ambition of the plaintiff to take on work as a prison officer, in the future. First and given the issues that have emerged in respect of the plaintiff’s family commitments and the extent to which this has in the past impeded the completion of a two week pain management programme, the prospect of the completion of the necessary 10 week training programme to become a prison officer, appears unlikely.^[105]Further and on the evidence it would appear that it is unlikely that such a position would in any event be sufficient attractive to make it likely that the plaintiff would seek to do so. This is because whilst there is the prospect of increased remuneration, including overtime, the evidence is that the availability of such positions is currently limited and it is not clear that such work would necessarily be more remunerative for her, at least in the shorter term.^[106]

87. [87]
    As was conceded in the plaintiff’s submission the only basis on which she could be found to have been likely to have proceeded down that path was if the income was more attractive. The difficulties in that prognosis were recognised and the submission was that this factor could be taken into account in respect of the extent of discounting of future economic loss.^[107]

General damages

88. [88]
    I accept that this is a case where the medical assessment of percentage impairments, whether in respect of physical and/or psychiatric components, do not provide particular assistance in assessing the plaintiff’s disability and the effects of this on her and more particularly in determining the award.

89. [89]
    The plaintiff was born on 7 April 1975 and is therefore now aged 38 years and the evidence supports a conclusion that she has, to date, suffered from a painful condition which has to a significant extent interfered with her enjoyment of life, generally in the way that she has described in Ex 2 and quite apart from her incapacity for return to work. However the assessment for the future will necessarily be on the premise that has been indicated above, but allowing for the risk that the plaintiff may have to adapt to the management of some pain in her ankle..

90. [90]
    Having regard to the circumstances generally and the cases referred to, an appropriate assessment is $45,000.00.

91. [91]
    Interest is allowed on $30,000.00 (two thirds) at 2% for a period of 226 weeks. That is an amount of $2,607.69.

Past economic loss

92. [92]
    The plaintiff’s net weekly wage after tax was agreed for past loss, at $630.00. It was also agreed that the appropriate figure if the plaintiff returned to work at the time of the plaintiff’s written submissions, as at 26 July 2013, was $650.18.

93. [93]
    It is accepted that as the plaintiff ceased work on 30 October 2009 and from that time was paid compensation, which forms part of the refund claimed by the defendant, it is appropriate to allow for that whole period, to date, which is:

1. (a)
   $122,850.00 to 26 July 2013 (195 weeks at $630.00); and

2. (b)
   $20,155.58 to 28 February 2014 (31 weeks at $650.18)

That is a total of $143,005.58.

94. [94]
    Loss of superannuation contributions at 9% is $12,870.50.

Interest on past economic loss

95. [95]
    On the authority of Evans v Port of Brisbane Authority & Ors^[108], it is not appropriate to deduct any payments made to the plaintiff by Q Super in calculating the interest on past economic loss. Accordingly such interest will be allowed at the rate of 5% per annum for a period of 226 weeks, on an amount of $105,370.74 (being $143,005.58 less the total amount of compensation paid to the plaintiff of $37,634.84). That is an amount of $22,897.87.

Future Economic Loss

96. [96]
    In relation to the assessment of future economic loss, this is not a case where the reliance that the plaintiff sought to place on the obvservations in Koven v Hail Creek Coal Pty Ltd^[109] is appropriate. This is because, in the light of the findings I have made in respect of the issue of mitigation of damages and general approach to assessment of damages, this is not simply a case of assessing the likely consequences of a settled condition of the plaintiff and as to her ongoing incapacities and the effects of that for her.

97. [97]
    It is therefore unnecessary to review the evidence of the occupational therapists in any detail, as their evidence was necessarily premised upon the unsettled condition of the plaintiff, as she presented to them. However the general effect of their evidence as to the likely difficulties that will confront the plaintiff’s return to the workforce should be taken into account. In that regard, much will necessarily depend upon the plaintiff’s motivation to do so and that is an aspect that is likely to be facilitated by the expected outcomes of the rehabilitative treatment.

98. [98]
    As to the allowance of an appropriate period for undertaking the proposed rehabilitation of the plaintiff, the importance of the evidence of the psychiatrists in respect of the psychiatric component has been noted. Otherwise various and generally shorter estimates were provided by other doctors, with the exception of Dr Journeaux, whose evidence stood, starkly, as a more pessimistic note as to expected outcome. There is necessarily imprecision in all of this and even the psychiatrists have at different points, expressed different views as to shorter and longer expectations.

99. [99]
    It is most appropriate to take the position of 12-18 months agreed in the psychiatrist’s evidence, as a guide and the assessment under this head, in that context, then proceeds upon the likely expectation of effective return to pre-injury earning capacity, subject to allowances for the difficulties that may confront a return to the workforce, after such a period out of it and to also incorporate an assessment of the risk of unsuccessful rehabilitation and to allow for superannuation and to otherwise allow for the uncertainties of life. Such an assessment is best done on a global basis.

100. [100]
     In the circumstances, an appropriate award is $100,000.00.

Past Special damages

101. [101]
     Largely the past special damages are agreed, as set out in Exhibit 2, Schedule 4. In respect of the contentious matters:

1. (a)
   Whilst I accept that it may not be a necessary pre-requisite for recovery in respect of an alternative therapy, such as the plaintiff’s claim for kinesiology (19 visits at $70.00, $1,330.00), that there be a doctor’s referral for such or even approval of the treatment and that a test of reasonable expectation of benefit might be appropriate, the difficulty here is the absence of reference to any evidence that would allow that test to be meaningfully applied to the circumstances of this case.^[110]A similar conclusion can be reached in respect of the plaintiff’s claim for a visit to a physiotherapist for an acupuncture treatment, in respect of which her evidence was “that didn’t end well”;^[111]and

2. (b)
   Further, it is not reasonable to allow recovery for the costs incurred in respect of the application cost in relation to a life coaching course. That is particularly in the light of the findings as to the plaintiff’s resistant attitude to addressing the real issues relating to her ankle injury. Her evidence in support of this amounted only to an assertion that, as a consequence of a suggestion of her mental health nurse, she researched the idea and incurred a cost of $2,735.00 for enrolment and books, but was unable to even commence it, because of her difficulties in concentration on everyday life.^[112]

102. [102]
     Therefore the claim for past special damages is allowed in the amount of $19,972.32.

103. [103]
     Interest is allowed at 5% per annum for 226 weeks, on the out of pocket amount of $4,684.85. That is an amount of $1,118.05.

Future Expenses

104. [104]
     For the reasons that have been expressed, it is appropriate to allow for the cost of a private multi-disciplinary pain management program at $6,200.00 (including the cost of accommodation for 12 days) and $2,000.00 for a return to work program as proposed by Mr Zietek. Those amounts should be allowed at present cost, on the basis of facilitating the earliest possible rehabilitation of the plaintiff’s incapacity for work.

105. [105]
     It is otherwise appropriate to allow the claimed cost of future psychological treatment, as representative of ongoing cost of the treatment of her psychiatric condition. That is an amount of $3,200.00.

106. [106]
     It is not appropriate to allow for the recommendations arising from the unsuccessful treatment of Ms Fraser, as set out in Ex 2, Schedule 5, but there should be an allowance for future medication, which should be approached on a similar basis to that taken in respect of future economic loss. Again a global assessment is most appropriate and I will allow $3,000.00.

107. [107]
     Therefore the total allowance for future expenses is $14,400.00.

Fox v Wood Component

108. [108]
     It is agreed that an amount of $2,965.00 should be allowed in respect of the tax paid on the plaintiff’s part from compensation repayments she received.

Conclusion

109. [109]
     In summary, the awards under the various heads are:

110. [110]
     There will be judgment for the plaintiff in the sum of $311,708.70.

111. [111]
     I will hear from counsel as to costs.