Moynes v Heilbronn[2015] QDC 143

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was injured in a motor vehicle accident on 27 August 2007 when the first defendant’s car collided with the rear of her car, as she was waiting at an intersection to turn.  By these proceedings, she claims damages for the injury she suffered as a result. Liability is admitted.  Quantum is not.

2. [2]
   In so far as the quantum of damages is concerned, it is admitted the injury suffered by the plaintiff, as a result of the collision, was a musculoligamentous strain injury involving the supporting structures of the cervical spine (that is, whiplash).

3. [3]
   What is in issue is the extent and consequences of that injury, in particular the extent to which it has caused, or will cause the plaintiff to suffer economic loss.

The plaintiff’s case

4. [4]
   The plaintiff pleads that the injury caused her to suffer:

1. (a)
   pain in the occipito-cervical area of her head and neck; and

2. (b)
   severe regular headaches about twice per month which last about 48 hours.^[1]

5. [5]
   The plaintiff claims that, by reason of her injuries, she has and will suffer damages comprising:^[2]

1. (a)
   general damages, for pain, suffering and loss of the amenities of life in an amount of $5,000 (calculated on the basis of an Injury Scale Value of 5, for the purposes of schedule 4 of the Civil Liability Regulation 2003, in reliance upon a permanent impairment assessment by Dr Gillett of 3%);

2. (b)
   past economic loss in the amount of $112,969.55, on the basis that, following the accident, she was unable to return to the full level of her pre-accident employment (together with interest and past superannuation);

3. (c)
   future economic loss in the amount of $144,967.16, on the basis that she will suffer an ongoing loss of income by reason of being unable to continue to work the same number of hours/days as she did before the accident; or alternatively a global amount of $100,000 (together with future superannuation);

4. (d)
   the cost of the provision of care, assistance and services in the future (1.5 hrs per week at the rate of $30 per hour), in the amount of $33,507;

5. (e)
   past out of pocket expenses in the amount of $12,210.98;

6. (f)
   future medical expenses (pain relief medication), estimated at $1,000; and

7. (g)
   Fox v Wood damages in the sum of $3,262.

The defence

6. [6]
   By their defence, the defendants put in issue the extent of the injury suffered by the plaintiff, and the consequences of it, among other things:

1. (a)
   admitting that the plaintiff “suffered a minor musculoligamentous strain injury involving the supporting structures of the cervical spine in terms of time and effect for a temporary and limited period only following the collision, which has not given rise to any permanent impairment”;^[3]

2. (b)
   admitting that the plaintiff “suffered some pain in the occipito-cervical area of her head and neck in the past for a limited and temporary period only following the collision, which has not given rise to any permanent impairment”;^[4]

3. (c)
   admitting the plaintiff has suffered “some economic loss in the past”, but not to the extent claimed by the plaintiff, on bases including that:

1. (i)
   the claim is contrary to the medical evidence;

2. (ii)
   the plaintiff has a pre-existing medical condition;

3. (iii)
   the plaintiff’s injuries were minor and have resolved;

4. (iv)
   the plaintiff has had no employment incapacity, other than for a limited and temporary period only immediately after the accident;^[5]

4. (d)
   denying that:

1. (i)
   the injury caused the plaintiff to suffer severe regular headaches about twice per month lasting about 48 hours;

2. (ii)
   the plaintiff has a permanent impairment of 3%, on the basis that it is out of proportion to her actual injuries and contrary to medical evidence;

3. (iii)
   the plaintiff will suffer impairment of her earning capacity in the future, for essentially the same reasons as set out in sub-paragraph (c) above;

4. (iv)
   the plaintiff is entitled to recover damages for future care and assistance.^[6]

7. [7]
   The defendants’ reasons for their denials are articulated on page 10 of the defence as follows:

“(D) The Plaintiff has a pre-existing migraine condition which pre-dates the accident (“pre-existing condition”);

5. (E)
   If the Plaintiff does have any ongoing symptoms related to her cervical spine, head pain or severe regular headaches (all of which are denied) then these symptoms are:

1. (1)
   Attributable to the natural progression of the pre-existing condition;

2. (2)
   As a result of the Plaintiff’s pre-existing condition rendering the Plaintiff susceptible to further spontaneous bouts of pain/symptoms independent of any injury caused as a result of the accident;

3. (3)
   Due to an intervening event in the Plaintiff’s life giving rise to symptoms affecting the performance of her activities of daily living and employment;

7. (G)
   It is contrary to the medical assessment of the capabilities of the Plaintiff.”

8. [8]
   In her reply, the plaintiff admits that she suffered migraines prior to the accident, but pleads that her pre-existing migraine condition is unrelated to the symptoms suffered following the accident, and that the headaches suffered subsequent to the accident are different to the migraines (as particularised in the reply).^[7]                                         

9. [9]
   In summary, the competing positions of the plaintiff and the defendants, on the quantum of damages, are as follows:

10. [10]
    Having regard to the issues in dispute, it is necessary to refer in some detail to the medical and other evidence.

Circumstances pre-accident (August 2007)

11. [11]
    The plaintiff was born on 10 June 1961.  She was therefore aged 46 at the date of the accident (and is now aged almost 54).  She is, and was in 2007, married with three children.

12. [12]
    As at August 2007, her children were aged 11, 14 and 18.^[11]   Her children are now aged 19, almost 22 and 26.  They all still live with her and her husband, including her eldest daughter’s partner and their new baby.^[12]

13. [13]
    At the time the accident occurred, the plaintiff was working full time, in effectively 3 jobs spread over a five day week.^[13] 

14. [14]
    One of her employers was Brisbane Catholic Education, for whom she worked as a library assistant at two schools, St Columbus School in Wilston and Holy Rosary School in Windsor.   She worked Monday to Thursday at St Columbus, and Friday at Holy Rosary (from about 8.30am to 3.00pm).   At St Columbus the plaintiff worked with the librarian, a Mrs Kate Anderson (who gave evidence at the trial).  At Holy Rosary she worked alone. 

15. [15]
    In the afternoons, the plaintiff had another job, employed by Centacare Child Care Services, at the after school care for Our Lady of the Assumption school.  Her role was administrative, doing the financial accounts, and sometimes helping out with supervision of children.   She worked here from about 3.30pm to 6.30pm (a 3 hour shift).  It was not clear from her evidence, but I infer that the plaintiff did this Monday to Thursday, because the employment records from Centacare show that she was employed for 12 hours per week.^[14]

16. [16]
    In addition to that busy work life, the plaintiff was almost entirely responsible for the household tasks, including cleaning the house; doing the laundry; making beds; cooking and washing dishes; doing the grocery shopping.  Her husband and children did not undertake or assist with any of these household tasks, save for minor assistance with the shopping and an occasional meal.^[15]

17. [17]
    Prior to the accident, her hobbies included reading and working in the garden.  She also enjoyed going to the cinema.^[16]

18. [18]
    In terms of relevant medical history, the plaintiff gave evidence of suffering from migraines prior to the accident.  She said these migraines “were mostly to the front of my head – left-hand side in one particular eye – my left eye.  They become quite a sharp pain in my eye and come over the top of my head.  I sometimes would get visual disturbances with that, and to an extent that I would be vomiting sometimes with them”.^[17]  She would sometimes get dizzy as well.

19. [19]
    The plaintiff said that, before the accident, she would have sometimes six to eight migraines a year, of varying severity.^[18]  She said she would not see her GP every time she had a migraine, only if she couldn’t control the pain (maybe twice a year).^[19]  That was her evidence at the start of her examination in chief.  Later on, she was asked about having a hysterectomy in 2004, and whether that had any impact on the migraines.  She said it reduced them to “about four a year”.^[20]

20. [20]
    The plaintiff’s husband also gave evidence that the migraines slowed down after she had an operation in 2004, to maybe one a quarter.^[21]

21. [21]
    The notes from the Ashgrove Clinic, where the plaintiff regularly saw her GP, commence in January 2000, with the plaintiff seeing Dr Yates about a migraine, and being prescribed imigran and maxolon tablets.^[22]   There are various entries related to that condition, including:

1. (a)
   29 May 2001 – “[f]airly frequent perimenstrual migraine”, no medication prescribed;^[23]

2. (b)
   17 July 2002 – “[h]eadache a few days with vomiting, similar to usual migraine but worse”, stemetil tablets prescribed;^[24]

3. (c)
   18 December 2004 – reference to the plaintiff having had a vaginal hysterectomy on 6 December;^[25]

4. (d)
   20 December 2004 – “[i]ntractable vomiting & headache today, probably migraine only, no new signs…”, injections of maxolon and tramal given;^[26]

5. (e)
   21 September 2006 – “2/7 headache & vomiting”, injections of maxolon and tramal given.^[27]

Circumstances post-accident

22. [22]
    The accident occurred on the afternoon of 27 August 2007, as the plaintiff was driving from one place of employment (Catholic Education) to the other (Centacare).^[28]

23. [23]
    In her evidence at trial, the plaintiff said that when the accident happened, she felt “[e]xtreme pain in the back of my head and a lot of pressure in the back of my head.  And it extended down my shoulder”.  When she was asked for how long after the accident she continued to feel that extreme pain, she said “I feel it every week”,^[29]  although she later said that it got a little better in 2011, when she reduced her hours.^[30]

24. [24]
    She gave evidence that this pain resulted in headaches, which she described as “[a] lot of pressure, again, in the back of my head, to the extent that it went down my arm and just never stopped – didn’t seem to stop unless I took pain killers”.  She said they were “completely different” from the migraines she suffered from, because “it was just constantly there.  And it was at the back of my head and not the front of my head”, and she had no visual disturbance; although she did sometimes feel nauseous and dizzy.^[31]  Her evidence was that, since the accident, she has had a migraine “probably one or two times a year”.^[32]

25. [25]
    The plaintiff’s husband, when asked to describe what he observed of the impact of the accident on the plaintiff said, “[t]he most noticeable thing was just her anxieties.  She seemed to get a lot more anxious.  The pain – the pain she was getting mainly was through the back of her neck, the back of her head areas, which seemed a lot more severe, what I could see, and she had a little – areas of – sort of moving, or if she did a little bit of work, down^[33] on her arms and things like that”.

26. [26]
    She was taken by ambulance from the scene of the accident to the Royal Brisbane and Women’s Hospital (RBWH).  According to the Ambulance records, she complained of “10/10 pain to back of head, neck and thoracic region”.^[34]

27. [27]
    She was examined at the RBWH, and it seems “simple analgesics, physical measures and physiotherapy were advised”.^[35]  X-ray and CT scans performed on 27 August 2007 showed no fractures and were otherwise normal.

28. [28]
    After that, the plaintiff saw her GP, Dr Paul Yates, at the Ashgrove Clinic.  Dr Yates’ notes, as recorded in the electronic files held by Ashgrove Clinic, reveal that he saw the plaintiff on 3, 7 and 14 September 2007, noting that her neck was “slow to settle”.  Dr Yates also recorded, on 14 September, that the plaintiff had “some emotional reaction to it” (ie the accident).^[36]

29. [29]
    Having been referred by a doctor at the RBWH, the plaintiff attended Allsports Physiotherapy at Red Hill for physiotherapy, from shortly after the accident.  Relevantly, on 14 September 2007, the physiotherapist wrote to Dr Yates in the following terms:

“[The plaintiff] is steadily improving objectively with her cervical ranges, reduction in headaches in her frontal region.  She continues to experience headaches at the base of her neck / skull.  However, [the plaintiff’s] neck disability questionnaire is worsening with her form completion this week reporting marked worsening in her functional abilities.  I am concerned with her emotional and psych well-being following the MVA and would kindly request you explore this a little further with her.”^[37]

30. [30]
    On 21 September 2007 (about 3 weeks post accident), Dr Yates recorded “Some R arm radicular pain still”.   On 24 September this was said to be “worsening”.^[38]  As a result, the plaintiff was referred for a CT scan of her cervical spine, which showed “[n]ormal cervical alignment with marked loss of cervical lordosis, possibly as a result of spasm.  No bony or disc abnormality is demonstrated in the cervical spine and specifically, there is no evidence of C5/6 lesion” (the pain in the right arm having been said to be suggestive of C5/6 radicular pain).^[39]

31. [31]
    When the plaintiff saw Dr Yates on 5 October 2007, his notes record that she was “[n]ot too bad but some migrainous headache… [CT result noted].  Some R arm and shoulder pain at times, probably associated with spasm, feeling better emotionally, driving normally.  Wants graduated return to work.”^[40]

32. [32]
    On 12 October 2007, the plaintiff saw a different doctor at the Ashgrove Clinic, Dr Donald Lang.  The notes of that attendance record, inter alia, “[p]ain not going away.  Right elbow/forearm feels swollen by end of the day… Pain post right shoulder radiates to elbow.  Lat elbow to thumb…  Neck movement has improved.”  The plaintiff was referred for an x-ray and ultrasound of her right shoulder,^[41] both of which were normal.^[42]

33. [33]
    At this time also, the plaintiff saw Mike Childs, occupational therapist, who assisted her with developing a return to work program, in conjunction with her employer (Catholic Education, St Columba’s primary school).^[43]

34. [34]
    The plaintiff had about six weeks off work after the accident, before starting a gradual return to work program (which involved starting with shorter hours, and increasing gradually).   She said that she felt “exhausted” during this program, and was suffering pain at the back of her head and down her right shoulder and arm, as well as headaches.^[44]

35. [35]
    The plaintiff saw Dr Yates again on 9 November 2007, on which occasion his notes record “[s]till some neck pain and R arm pain, probably raducular [sic] but not too severe & scans NAD, so expect gradual improvement”.^[45]

36. [36]
    The following day, on 10 November 2007, the plaintiff saw Dr Helen Longbottom at the Ashgrove Clinic.  Her notes record “comes with a migraines and pain down the R arm; has been vomiting this morning O/E alert no focal signs PD migraine Plan; tramal 100 mgm imi and stemitel 12.5 mgm imi stat”.^[46]

37. [37]
    The day after that, on 11 November 2007, the plaintiff was feeling so unwell that her husband took her to the RBWH, where she was admitted and spent the next 5 days, and was discharged on 16 November 2007.   In her evidence, she said that she “continuously had headaches that particular week.  It got to the extent that I – I just wasn’t coping with them.  I was getting very nauseous and the pain was getting quite extreme at the back of my head”.^[47]

38. [38]
    The plaintiff’s husband said he had not observed her in that condition prior to the accident.^[48]  When asked how he observed her to be different, he said “I noticed, you know, the anxiety of her and the actual struggle of coping with the pain”.^[49]

39. [39]
    The discharge letter written by the RBWH emergency department (Narelle Aram) to Dr Yates^[50] records the following:

“[the plaintiff] presented to the Emergency Department at Royal Brisbane and Women’s Hospital on the 11 NOV 2007 at 07:57.  The presenting problem was ONGOING HEADACHE AND NAUSEA.

The diagnosis was HEADACHE.

Thankyou for reviewing [the plaintiff].  She presented to the RBWD ED with a 3/7 Hx of occipital --˃ global headache, associated with vomiting.  This is on a background of a history of migraines, and an RTC in Aug 2007 (with neck pain).

Ob’s normal.  Examination unremarkable.

CT head normal.  LP normal xanthochromia re ? SAH.  See attached bloods for results.

[The plaintiff] has a migraine.  She has been discharged on NSAID + panadeine forte.”

40. [40]
    A discharge summary prepared by Dr Tanya Robb, neurology resident medical officer,^[51] records that the plaintiff had:

“… a five day history of generalised headache, increasing in severity and not responding to simple analgesia.  CT head and CSF analysis were unremarkable.  It was felt that the headache was atypical, but possibly due to occipital neuralgia, with a vascular component, which was exacerbated by dehydration by vomiting.  It is possible that the whip-lash injury in August 07, may also have contributed.

[The plaintiff] was treated with rest in neutral neck position, and gentle physiotherapy, with no manipulation.  Her headache improved significantly throughout the admission.  We are discharging her to the care of her GP with simple analgesia and have recommended that she continue Physiotherapy (with decreased mobilisation of joints).”

41. [41]
    Because one of the issues at the trial concerned the comparison between the migraines suffered by the plaintiff, and the headaches she said she suffered post-accident, it is relevant to note that patient records for the plaintiff’s admission to the RBWH record a variety of descriptions of the headache she was then suffering:

1. (a)
   a nurse recorded on 11 November at 9.10am that the plaintiff “states vomiting continues with pain front of head and occipital region”;^[52]

2. (b)
   a later examination, by whom I am not sure (10.30) records (presumably on the basis of what the plaintiff said), of the headache, “occipital --˃ global headache” and “constant pounding and radiating from back to front”;^[53]

3. (c)
   a nursing note made later that night records that the plaintiff “states pain is still niggling but has moved more to back of head”;^[54]

4. (d)
   a note made the next morning, 12 November, states “occipital headache continues” and later that day “continues to complain of frontal headache”;^[55]

5. (e)
   notes made by a neurology registrar on 12 November describe the headache as “intractable global headache” and later as “occipital --˃ frontal pain”;^[56]

6. (f)
   notes made on 13 November, by the same registrar, describe a 5 day history of “generalised headache”;^[57]

7. (g)
   notes made by the physiotherapist on 15 November 2007 describe the headache as being in the “occipital region radiating forwards to forehead”^[58] and records a history of headaches “more into eye than current distribution”, separately from a past history of migraines.^[59]

42. [42]
    On the same day that she was discharged from RBWH (16 November 2007), the plaintiff again saw Dr Yates.  I infer that this visit was for the purpose of obtaining a workers’ compensation certificate from Dr Yates (rather than for treatment), given that the plaintiff had just that day been discharged from the hospital.  Dr Yates’ notes on this occasion record “[h]as been in RBH 6/7 following previous consultation with ongoing headache & vomiting, full Ix [investigation^[60]] clear including CT & LP^[61]; final diagnosis migraine/neuralgic headache.  Now on minor analgesics, Ibuprofen & Omeprazone”.^[62]

43. [43]
    In his oral evidence, Dr Yates explained that the “final diagnosis” in his notes was on the basis of the discharge summary from the hospital.^[63]   He did in fact issue a workers’ compensation certificate, certifying the plaintiff as unable to work from 10 November to 24 November 2007.^[64]   On this certificate the “diagnosis” was “neuralgic headache secondary to STI^[65] cervical spine”.   He was cross-examined about why he excluded “migraine” from the diagnosis; instead including this as a “pre-existing factor relevant to the diagnosis”.  His evidence was, in essence, that on his understanding of the hospital’s discharge summary, the headache was “atypical”, meaning that it was not entirely typical of any single diagnosis, having some migrainous features, some tension headache features, and some suggestion of neuralgia (inflammation or irritation of a nerve), the latter suggesting connection with the cervical spine.^[66]

44. [44]
    When the plaintiff saw Dr Yates again on 23 November 2007, he recorded that she was “a little better, still pain base of neck, some dizziness, possibly low pressure effect secondary to LP [lumbar puncture].  Doesn’t want to go back to school as only 2/52 to go & afraid of aggravating it”.^[67]  He issued a workers’ compensation certificate, certifying that she was unable to work from then until 7 December, describing the diagnosis as “STI cervical spine with reactive headache”.^[68]

45. [45]
    The plaintiff saw Dr Yates again on 7 December 2007, when he recorded that she is “[n]ot too bad but some ongoing neck pains & associated headaches, radicular pain R arms have resolved”.

46. [46]
    The plaintiff was seen by Dr Banney, Neurologist, during her admission to the RBWH.  She also saw him for a follow up on 20 December 2007, following which Dr Banney wrote the following letter to Dr Yates:^[69]

“I am writing to let you know that I saw this lady in the Neurology Outpatients on 20 December 2007.  She is still complaining of pain felt in the back of the neck but mainly over the right trapezius region.  This pain may be absent if she rests in certain positions but is brought on by movement, particularly of the neck, mainly neck extension.  She also complains of dizziness at times and some nausea particularly when she is sitting with her head vertical.  She does not now seem to suffer from specific headache.

On examination, there was some tenderness over the upper part of the right trapezius, just lateral to the spine.  Pain also occurred in this area on movement.  The fundi seemed normal.  She had no evidence of BPV.

Opinion:  This lady is considerably better than she was when I originally saw her.  I think her ongoing symptoms relate mainly to musculo-ligamentous injury in the neck and trapezius region.  There is also a small possibility that she could have a post-lumbar puncture headache associated with nausea.

I have asked her to try to rest completely over the Christmas period and to use standard analgesics combined with heat and massage.  I am hopeful that her symptoms will settle with appropriate rest.  I have not suggested any physiotherapy at the moment.”^[70]

47. [47]
    Dr Banney did not give evidence at the hearing.  Sadly, he has passed away.   The plaintiff sought to place an interpretation on this letter which supported the plaintiff’s case of a connection between her headaches, and the injury she suffered in the accident.  I do not consider that can be taken from this letter.  The “ongoing symptoms” which the doctor is referring to in the third paragraph must be the symptoms the plaintiff is said to be “still complaining of” in the first paragraph (which is not headaches). 

48. [48]
    The plaintiff returned to Dr Yates on 4 January 2008, and his notes record “[s]till some positional neck pain & occasional migrainous headache.  Feeling well, keen to work on rehab”.^[71]  On this occasion, Dr Yates again provided a workers’ compensation certificate, certifying the plaintiff as unable to work until 25 January 2008, with the diagnosis described as “STI cervical spine with R [right] radicular pain”.^[72]  On this certificate it is noted that the plaintiff is to be referred to the Wesley Pain Management Clinic.  That referral was in fact made by Dr Yates, on 4 January 2008.^[73]

49. [49]
    In terms of his use of the phrase “migrainous headache”, Dr Yates’ oral evidence was that he is referring to a headache that has some migrainous features, being somewhere on the continuum between a classical migraine headache and a classical tension headache.^[74]

50. [50]
    On 21 January 2008, the plaintiff was examined by Dr Alison Reid, Neurologist, at the request of WorkCover.    In Dr Reid’s report prepared on that date,^[75] under the heading “current situation”, she recorded:

“[The plaintiff] states that currently she is waking up three days a week with a headache.  She rates the pain as a 6 on a visual analogue scale (0 = no pain, 10= worse possible pain).

She says the pain starts at the back of her head and radiates up over the vertex with associated nausea and lasts all morning.

[The plaintiff’s] right upper limb pain has settled.”^[76]

51. [51]
    Of her own examination of the plaintiff, Dr Reid recorded:

“The contours of the neck and shoulder girdles are normal.  There is no winging of either scapula.  Cervical musculature was soft.  There was no skull base tenderness.

With encouragement I found that she has a full range of neck and shoulder joint movements.

The optics discs are clear.  The cranial nerves intact.”

52. [52]
    Dr Reid was of the view that the five months that had then passed since the accident was “more than adequate time for her condition to have settled and ceased, and for her to have reached maximum medical improvement”, and that she believed the plaintiff “should be more than capable of returning to normal duties and hours at the beginning of the academic school year” (that is, 2008).^[77]

53. [53]
    I will return to Dr Reid’s opinion below.

54. [54]
    After seeing Dr Reid, the plaintiff also went to see Dr Yates on 21 January 2008.  Dr Yates’ notes record “[h]as seen neurologist today, booked for pain management clinic 2/52 from 18^th Feb.  Headaches a bit better but still present.  Some doubt about going back to work next week.  I would prefer to await report”^[78] (which I infer is the report from Dr Reid).

55. [55]
    A week later on 29 January 2008, Dr Yates recorded “[m]ore headache today, some nausea, some neckache”.  On 2 February 2008, Dr Yates recorded “OK at present but headache last week”.  On this date, he issued a workers’ compensation certificate, certifying the plaintiff as fit to return to normal duties from 5 February 2008.^[79]  On the same date, Dr Yates also wrote to Catholic Education, one of the plaintiff’s employers, noting that:

“[the plaintiff’s] Workcover entitlement has terminated & she will return to work 5/2/08, so far as she is able.  However the recommendation to attend pain management course at Wesley Hospital remains, for 2 weeks on or before 18^th February, & I would recommend that she be given leave to attend this in both her interests & yours as her employer.”^[80]

56. [56]
    The plaintiff went back to see Dr Yates 11 days later, on 13 February 2008, on which occasion Dr Yates recorded “[b]ack at Cath Ed, exhausted by end of work 3pm, unable to do other job at Centacare at present”.^[81]    

57. [57]
    This prompted Dr Yates to write a letter to Centacare, dated 13 February 2008, stating:

“[The plaintiff] is currently suffering from neck pains & headaches subsequent to motor vehicle accident and pre-existing migraine & neck pains.^[82]  She is fit for her work at Catholic Education but currently unable to complete her duties at Centacare.  This will be reassessed after attendance at a pain management course 18^th February to 29^th February.”^[83]

58. [58]
    It is apparent that the plaintiff did not at any stage return to her job with Centacare after the accident.  Her employment with Centacare was formally terminated on 17 March 2008, seemingly in circumstances where the plaintiff had not responded to correspondence from Centacare enquiring as to her intentions regarding returning to work.^[84]

59. [59]
    The plaintiff attended the Wesley Hospital between 18 and 29 February 2008 and participated in a “back rehabilitation and pain management program” (referred to as the Wesley pain clinic).

60. [60]
    In her evidence, the plaintiff said she found this beneficial, and that there was improvement in her pain levels after attending the Wesley pain clinic.  Her husband also said he “felt she was in a better place” afterwards.^[85]  As part of the process, an exercise program was developed for the plaintiff, which she could continue with at home.  She described this as “like my Bible”,^[86] because she would refer to it when she needed to remind herself of the exercises she had to do. 

61. [61]
    At the end of the program, a “comprehensive report” was prepared by Dr Yaksich and Ms McGrory.^[87]  By way of “background information”, the report states:

“Onset of neck pain and headaches following a motor vehicle accident in august 2007. Returned to work on a graded return to work program after six weeks.  Has ongoing headaches of varying severity.  Admitted to RBH for one week with severe migraine.  No lasting benefit from physiotherapy and acupuncture.  Participation in The Wesley Back Rehabilitation Program recommended.”

62. [62]
    A comparison of various things, on admission and discharge, is set out in the report (including pain levels, functional capacity assessment, safe lifting loads and psychological tests).^[88] The report concludes with the following “recommendations”:

“Recommendations:

• Maintain physical conditioning program (refer Physiotherapy and Exercise Physiologist’s reports)
• Four further physiotherapy sessions to work on active trigger points (refer Physiotherapist’s report)
• Review of workstation by Mike Childs; return to work as a Librarian then additional work at Centacare one month later (refer Occupational Therapist’s report).

63. [63]
    The physiotherapist’s report^[89] records that “[o]n discharge [the plaintiff] reported that she has made significant improvement.  She reported she has experienced a significant reduction in the headaches she has been experiencing and stated that the pain in her neck is no longer constant.  She should continue to make good improvement continuing with her current rehabilitation program.”  A summary table, comparing various things “on admission” and “on discharge” includes reference to:

1. (a)
   on admission, “[c]onstant pain in upper cervical spine with pain referring into right upper trap / shoulder region 3-6/10” and “intermittent shooting headache 3 times per week”; and

2. (b)
   on discharge, “intermittent pain in upper cervical spine 3/10” and “minimal headaches”.

64. [64]
    The occupational therapy report^[90] recorded, relevantly, in relation to domestic activities of daily living:

“[The plaintiff] lives in a highset house with approximately 15 stairs.  [She] states she is able to manage light household tasks such as meal preparation and washing dishes.  She has difficulty with heavier tasks including vacuuming, mopping, sweeping and cleaning the bathroom, but manages with pacing.  She is able to manage small amounts of gardening and her family help with grocery shopping.  [She] drives a manual car.”

65. [65]
    She was assessed as “may be capable of work of a sedentary nature”.  In terms of the “pain disability index”, which is described as the individual’s self-rated level of disability (in terms of the degree to which chronic pain disrupts seven aspects of life), she was given a mean^[91] score of 1.9 (on a scale of 0 to 10) on admission and 2.3 on discharge – the occupational therapist explaining that the increase indicates the plaintiff “feels slightly worse with daily living tasks since attending the program”. 

66. [66]
    The records from the Wesley, which are in evidence, include the questionnaires completed by the plaintiff which form the basis of this analysis.   The plaintiff was cross-examined about one of these, being the “pain disability index” she completed on admission (18 February 2008).^[92]  Relevantly, the following two paragraphs appear at the top of the form:

“The rating scales below are designed to measure the degree to which several aspects of your life are presently disrupted by chronic pain.  In other words, we would like to know how much your pain is preventing you from doing what you would normally do, or from doing it as well as you normally would.  Respond to each category by indicating the overall impact of pain in your life, not just when the pain is at its worst.

For each of the seven categories of life activity listed, please circle the number of the sale which describes the level of disability you typically experience.  A score of 0 means no disability at all, and a score of 10 signifies that all of the activities in which you would normally be involved have been totally disrupted or prevented by your pain.”^[93]

67. [67]
    The seven categories, and the rating given by the plaintiff for each, are family home responsibilities (2), recreation (3), social activity (3), occupation (2), sexual behaviour (2), self care (0) and life-support activity (1) (resulting in a mean score of 1.9)

68. [68]
    On discharge, the only changes were an increase from 2 to 3 for “occupation” and an increase from 0 to 2 for “self care” (which resulted in an increased mean score of 2.3).^[94]

69. [69]
    In contrast to those scores, when giving evidence at the trial, the plaintiff said she would describe her pain levels before attending as “10 out of 10”, and after attending “probably a six out of 10”.^[95]

70. [70]
    In cross-examination, the plaintiff was taken to the 18 February 2008 questionnaire.  After being referred to the introductory paragraphs (set out above), she agreed that she understood the import of the questionnaire was to record as accurately as she could how her pain was affecting her, and what they (the Wesley) could do for her to reduce that pain.^[96]  But then when asked about particular items (for example, circling 2 for family home responsibilities, and it being put to her that was because “you were having minimal effect upon your capacity to undertake your family responsibilities at that time”, she said she disagreed, because what she circled was the position “on that particular day that I went in”.^[97]  

71. [71]
    I do not accept the plaintiff’s evidence about that.  It seemed to me to be a more recent justification, in light of the inconsistency between her evidence at trial, and the documented contemporaneous record from February 2008.  The introductory paragraphs of the questionnaire are clear.  The purpose of attending the pain management clinic was to get assistance with managing pain levels.  There would be no point in the plaintiff limiting her answers to how she felt on “that particular day”, rather than providing a broader reflection of the impact of her symptoms on the various aspects of life which were asked about.

72. [72]
    It was put to the plaintiff in cross-examination that what she circled on this document was consistent with what she told Dr Gillett later in 2008, and Dr Saines in 2010 (referred to below).  She accepted that it was.^[98]  I find that earlier, recorded information to be more reliable than what the plaintiff relayed at the trial, that being some seven years after the events.

73. [73]
    The plaintiff was also asked about the record made by the occupational therapist, that the plaintiff “manages with pacing” (see para [64] above), and said “Well, that was probably on that particular day”.^[99]   It seems to me the same conclusion can be reached about this response also.

74. [74]
    The occupational therapy report included the following recommendations:^[100]

“It is most important [the plaintiff] continue with a physical conditioning program to increase her functional tolerances for work and other activities of daily living.

It is also recommended that Mike Childs (performed previous Worksite Visit) do a subsequent visit with approval from Catholic Education to assess an appropriate chair for [the plaintiff’s] work at St Columbus…  [She] may also require a footrest.  It is recommended that [she] use a document holder…  [The plaintiff] has also identified that she may require a suitable ergonomic chair at her second place of work as a Librarian at The Holy Rosary School.

It is also recommended that [the plaintiff] rotate activities and positions as much as possible.  [She] feels she will be able to do her six hour days/five days a week at the Libraries with Catholic Education.  When [she] is involved in playground duties she should not be involved in lifting or personal handling of children with disabilities.

[The plaintiff] should be able to return to her additional work at Centacare one month after returning to her Librarian duties with Catholic Education.”

75. [75]
    The plaintiff was also assessed by a psychologist as part of the Wesley pain management program.  This process also involved the plaintiff completing a questionnaire, described as a “multidimensional pain inventory”.^[101]  In the psychology report,^[102] the plaintiff’s “profile of scores” on that questionnaire was analysed as follows:

76. [76]
    The plaintiff was not asked about this questionnaire in her evidence.  However, counsel for the plaintiff made reference to it in her submissions, in response to the submissions on behalf of the defendant about the “pain disability index” questionnaire (referred to above).   It seems to me that in interpreting what these questionnaires mean, it is important to have regard to the relevant medical professional’s analysis of them (as opposed to attempting to interpret them myself, in terms of comparisons with other questionnaires, and the plaintiff’s recent evidence).  This is why I have set out the psychologist’s analysis above, which shows that the plaintiff’s answers, given in February 2008, to the psychology questionnaire revealed, among other things, “a low level of pain” and that “pain did not interfere significantly with activities involved in daily life”.

77. [77]
    Once again, there is a clear tension between the evidence that the plaintiff gave at trial (of her pre/post attendance pain levels); and what she reported in February 2008.

78. [78]
    Changes were made to the plaintiff’s work environment at St Columbus school (an adjustable chair, a footstool, a trolley to put books on, and an adjustable desk which enabled her to stand or sit down to work).   The plaintiff also made some changes to how she did her work, breaking tasks up.^[103]  She also received assistance from the librarian Kate Anderson, or a groundsman, for heavier tasks.  All of those things helped.^[104]

79. [79]
    No similar changes were made at Holy Rosary school.^[105]   There was no evidence before me to explain whether they were asked for and refused; or simply not asked for.

80. [80]
    The plaintiff gave evidence that by the end of the week she was “absolutely exhausted.  And the headaches were just becoming extreme”.^[106]

81. [81]
    On 7 March 2008, the plaintiff went to see Dr Yates, complaining of “migraine with vomiting”.  She was given an intramuscular injection of maxolon and tramal.^[107]

82. [82]
    Following this, Dr Yates saw the plaintiff twice more in 2008 (in July and August), for unrelated conditions, and then did not see the plaintiff again until 26 May 2009.   There being no mention in the notes Dr Yates made in July and August 2008 of any headaches or neck pain, I infer the plaintiff made no complaint of these things when she saw him for those unrelated conditions.

83. [83]
    In the meantime, on 28 October 2008, the plaintiff was examined by Dr Greg Gillett, orthopaedic surgeon, at the request of her solicitors, for the purposes of a medico-legal consultation and report.  I will address Dr Gillett’s opinion later, but relevantly in this context note the following, in terms of what the plaintiff reported to Dr Gillett, and what he observed on examination.^[108]  At the end of the section of his report in which he set out the “history” (of the accident and subsequent treatment), Dr Gillett recorded that:

“[The plaintiff] advises that in fact the pain clinic helped considerably in relation to her overall management of her condition.  WorkCover ceased her claim and recommended she go back to work.  She did to (sic) back to work and did the pain management clinic and then has remained working subsequent to that.  The pain management clinic has been successful enabling her to cope in her functional capacity and improvement.

… She manages herself with exercises and stretches.  If she does not do these exercises and stretches and self management techniques, she gets increasing pain and discomfort in the neck and head.

She has remained working since returning to work and is now doing full duties.”^[109]

84. [84]
    Under the heading “current symptoms”, Dr Gillett records:

“She had modified the way she does tasks and she has to be careful with how she does tasks.  Part of her rehabilitation for the Wesley programme was ergonomic advice regarding her computer work and general working abilities.  In general terms she does the exercises and stretches and accommodates the condition.  Sometimes she gets pins and needles to the fingers.  She gets pain in the occipito-cervical area to the head.  Turning her head and neck is satisfactory.  There is some general stiffness in the right side of the neck and quick movement hurts her.

The headaches are different to the previous migraines that she had.  The headaches have improved.  She now gets them about twice per month and they last about two days.  Medication involves Aspalgin, Aspro Clear and some Mersyndol at times.  She also uses medication for nausea.  She uses heat packs.

The pain management has reduced the headaches and she was not coping with her pain prior to the pain management programme.  She gets pain in the right upper limb towards the trapezial region ranging to the elbow and forearm.”^[110]

85. [85]
    In relation to “activities of daily life”, Dr Gillett recorded:

“She manages tasks at her own pace.  With heavy tasks she gets assistance form family members.  Driving any distance is an issue and she breaks it up.  She required a lot of assistance from the family up until February 2008.  Again functionally she improved after the Wesley programme.”^[111]

86. [86]
    In relation to her “occupation”, Dr Gillett recorded, among other things:

“She can do her work but she has some difficulties moving the compactus and she has difficulties with computer work requiring her to be diligent with her posture, to get up and move around and change position when required.  She modifies computer work.  She uses the techniques as described in the Wesley programme.”^[112]

87. [87]
    In respect of his own examination of the plaintiff on 28 October 2008, Dr Gillett recorded:

“She indicates upper occipito-cervical, upper cervical and mid cervical pain bilaterally.  The range of motion of her neck is limited by a few degrees in each direction associated with some discomfort at extremes of motion.  There is no guarding, spasm or asymmetry associated with movement of the neck and there is no neurological deficit in the upper limbs.  Shoulder girdle examination is normal.”^[113]

88. [88]
    In cross-examination, Dr Gillett agreed that his examination was consistent with the injury having a mild effect on the plaintiff,^[114] saying “[s]he examined within the realms of a person with residual symptoms of a mild injury”.^[115]

89. [89]
    It is apparent that it is Dr Gillett’s record of the plaintiff getting headaches twice per month lasting about 2 days (in October 2008) that is the basis for the pleading to this effect in paragraph [9] of the statement of claim.

90. [90]
    It appears that in January 2009 the plaintiff was on holiday in Melbourne.  The medical records in evidence include a note of a consultation with a Dr Peter Dwyer at the Albert Park Medical Centre on 11 January 2009.  Dr Dwyer’s notes record “3/7 migraine and vomiting”.  She was given an injection of morphine and maxolon.^[116]

91. [91]
    The plaintiff’s visit to Dr Yates on 26 May 2009 was in the context of the plaintiff travelling to Ireland, and seeking prescriptions for medication and advice from Dr Yates for that purpose.^[117]  There is no mention in the notes of this attendance of any complaint by the plaintiff about headaches or neck pain.  Dr Yates provided the plaintiff with a letter, dated 26 May 2009, “To the Doctor Concerned”.  As Dr Yates explained, the purpose of the letter was, in the event the plaintiff suffered an acute attack of migraine while overseas, the information in the letter would assist any treating doctor who saw her.  The letter was in the following terms:

“Thank you for seeing [the plaintiff], age 47 yrs.  She suffers from migraine & occasionally requires treatment by injection for a severe attack.  Most recently she has had metoclopramide 10mg & tramadol 100mg as a single injection.”^[118]

92. [92]
    The letter includes an attached “health summary sheet”, which lists “current active problems” as “migraine”, and “past medical history” as “vaginal hysterectomy”.^[119]

93. [93]
    Dr Yates was asked about this letter in cross-examination, in particular, why he made no mention of the soft tissue injury to her cervical spine.  His evidence was that as far as he was concerned, “the issue with respect to the neck injury was already resolved at that point”.^[120]  That is unsurprising when one considers that, apart from the migraine for which he saw the plaintiff in March 2008, he had not seen the plaintiff, for any issue in connection with the motor vehicle accident, since 13 February 2008 (some 15 months earlier).^[121]

94. [94]
    On 14 July 2009, on her return from Ireland, the plaintiff saw Dr Yates in respect of “URTI”.^[122]  There is no mention in the records of this attendance of any neck pain or headache.   In respect of a later record of a visit to Dr Yates, following a visit to Ireland, the lack of mention of any neck pain or headache after the long flight was put to the plaintiff.  Her response was that was because she was taking painkillers and “you’re able to get up and walk around”.^[123]

95. [95]
    Two weeks later, on 27 July 2009, the plaintiff saw Dr Yates, who recorded “[n]ausea and occipital headache since last visit.  Not like usual migraine, a little sinus congestion.”  Dr Yates’ notes further record “Suggests tension headache, try Endep nocte”.^[124] 

96. [96]
    Seven months later, on 9 February 2010, the plaintiff attended on Dr Yates, complaining of “[o]ccipital headache & vomiting”.   Dr Yates’ notes record “[p]resumably migrainous”, and he gave her an intramuscular injection of maxolon and tramadol.^[125]

97. [97]
    There are visits in March 2010 for another URTI/cough, and then not again until 8 November 2010, on which occasion Dr Yates records “[p]ersisting pain flexor compartment R forearm last 3/52.  Probably related to overuse in gym & gardening session.  Not tender in either condyle of elbow, main tenderness is in body of flexor muscle.  Apparently muscular overuse”.^[126]

98. [98]
    In May 2010, the plaintiff was examined by Dr Saines, Neurologist, at the request of her solicitor.^[127]   As in the case of Dr Gillett, I will address Dr Saines’ opinion below, but I set out here what he recorded, both from the plaintiff, and on his own examination of her in May 2010.^[128]  Under the heading “present condition”, Dr Saines recorded:

“At present [the plaintiff] has no persistent symptomatology.  She does develop dull aching pain around the back of the neck about once per week.  This settles in a couple of hours with Nurofen, Aspirin or Mersyndol.  Rarely does the pain become more severe with associated headache and nausea, (perhaps about four times per year) and she needs to attend her general practice for an analgesic injection.  By maintaining her exercise program conscientiously she can control the pain.

She has intermittent tingling sensation of the finger tips on several occasions per week.  This occurs when using her hands, particularly writing, gardening or holding a book and occasionally when gripping the steering wheel.  This is not linked specifically to exacerbations of neck pain.

She undertakes the activities of daily living.  She is married with three children.  Her hobbies include reading, cooking and gardening.”^[129]

99. [99]
    In cross-examination, the plaintiff accepted that when she spoke to Dr Saines she was doing her best to be truthful, and agreed that she told Dr Saines all of the things set out above.^[130]   In re-examination, she was asked about her understanding of the term “settled” (where it appears in Dr Saines’ report, where he said her neck pain settles in a couple of hours with medication).  She said “it certainly takes the edge off it… the pain in my neck”.^[131]

100. [100]
     In relation to the plaintiff’s “past condition”, Dr Saines recorded:

“There is a past history of migraine since her early twenties.  She describes this as a frontal headache mainly on the left side associated with visual disturbance, dizziness and vomiting.  Currently this may recur about four times per year.  It seems different to the headache which followed the accident.”^[132]

101. [101]
     He also recorded:

“The condition was managed conservatively and she has benefited significantly from a pain management program and an ongoing exercise program which she undertakes herself now.  She rarely requires analgesia if she is conscientious with her exercises.  The severe headaches are relatively infrequent and they are suggestive of migraine which she has suffered in the past although the characteristics are slightly different.  These headaches are not the result of a direct brain injury and may be triggered by cervical pain and a muscle contraction.”^[133]

102. [102]
     In terms of what he meant by “suggestive of migraine” in this paragraph, Dr Saines’ oral evidence was that “… migraine is an intermittent severe headache.  That’s the main characteristic of migraine and then, of course, in association with that people can develop nausea and other symptomatology which have a, you know, a migraine flavour.  So it was my opinion that the more severe bouts of headache had a migraine pattern.”^[134]

103. [103]
     In relation to the words “although the characteristics are slightly different”, he said:

“Well, I think there was a distribution.  I’d have to go back and look at this a little bit more, but I think the distribution was a little bit different.  And she felt that there was some variation from what she experienced previously, but we – you know, I guess from experience migraine can be variable in its distribution and its quality.  And I would believe that the intermittent pattern is the dominant feature which made me believe that those more severe headaches which occurred – I think I said – I think I wrote down here perhaps about four times a year – were of a migrainous type”.^[135]

104. [104]
     On his own examination of the plaintiff, Dr Saines recorded:

“On examination there was a full range of cervical movements with no neck deformity or muscle spasm.  There were no abnormal neurological findings.  Tinels sign was positive at both wrists more so on the right side and Phalen’s test was positive on the right side.”^[136]

105. [105]
     In a subsequent letter dated 24 December 2012,^[137] Dr Saines stated:

“At the time of my assessment [the plaintiff] had no persistent symptomatology.  There was intermittent, mild aching pain of the neck as well as sensory symptoms in the fingertips.  The latter is due to carpal tunnel syndrome unrelated to the accident.”^[138]

106. [106]
     In his oral evidence, Dr Saines said that, at the time he saw the plaintiff, he thought she’d reached a very good position of improvement;^[139] that was “pretty much a recovery at that point in time”^[140] and “that status would not have changed as a result of anything sustained in the accident”.^[141]  I will return to Dr Saines’ opinion below.

107. [107]
     The next relevant entry in the GP records is of an attendance with Dr Stephen Hughes, also of the Ashgrove Clinic, some 12 months after she saw Dr Saines, on 3 May 2011.^[142]  Dr Hughes’ notes record:

“had a VA [vehicle accident] in 2007 – cervicogenic headaches^[143] since (also gets migraines but these are different) – works 5 days/week for Cath Ed (4 days in one school & one day in another) – she finds it [the headaches^[144]] is getting worse & wants to cut back by a day/week – gets occipital headaches^[145] most weeks & lasting 2-3/7 (& severe migraines 4-5/week [year]^[146]).

108. [108]
     Dr Hughes also notes, under “reason for contact”, “muscle contraction headaches + occas migraines”.  He prescribed Endep.

109. [109]
     Dr Hughes issued a medical certificate, on 3 May 2011, stating that she will be unfit for duty up to and including 30 June 2011.^[147]  In his oral evidence he explained his reasons for doing that, as follows:

“I thought that the cervicogenic headaches is a vicious circle of pain, muscle contraction, more muscle contraction, more pain, and so one needs to breach that vicious circle.  This was to act as a circuit breaker to give her some time away from work, because both the physical effort of being at work and the associated stresses of it are an aggravating factor, and this was to try and break – help break that vicious circle.”^[148]

110. [110]
     Seen apart from the plaintiff’s evidence, this entry in May 2011 stands in stark contrast from the rest of the evidence that is contained in the notes of the Ashgrove Clinic, and the observations of Dr Saines from the previous year, May 2010.  The plaintiff had at no stage reported to Dr Yates that she was having headaches most weeks lasting 2 to 3 days.  She did report to Dr Gillett in October 2008 that she was having headaches twice per month, lasting 2 days.  But when she saw Dr Saines in May 2010 she had no persistent symptomatology, and was reporting relatively infrequent headaches which Dr Saines said were suggestive of migraine (the timing of them is also consistent with the timing of the plaintiff’s migraines, about four per year).   In so far as, by May 2011, the plaintiff’s condition had apparently “worsened”, from where she was in May 2010, the medical evidence does not, in my view, support a finding that that is related to the injury she sustained in the motor vehicle accident in August 2007.

111. [111]
     In any event, at about this time, in May 2011, the plaintiff did stop working on Friday at Holy Rosary.  Her evidence was that she stopped because she “basically couldn’t stand the headaches that I was getting”, being the headaches in the back of her head.   She said she no longer had any pain in her right elbow by this time; in terms of her neck, she was still getting pain, but not as bad because she had dropped a day; but the headaches were still as bad, although she was probably not getting them as regularly, and she was able to drop the amount of pain relief medication she was taking.^[149] 

112. [112]
     Her husband’s evidence was that when she was working the full five days, “by the end of the week she was absolutely – the end of the – most days, she was absolutely shattered.  I just think that extra day off really regenerated her for Monday, coming back to work”.^[150]

113. [113]
     Up until this time, she had been managing her condition, by doing the exercises recommended by the Wesley (as she had reported to Dr Gillett).  In cross-examination, when asked at what stage those exercises were no longer accommodating her condition, leading her to stop working on Fridays, she said “I was just getting so many headaches”, and said “they just increased as time went on”.^[151]  But she also agreed that the inferior ergonomics at Holy Rosary School was a contributing factor.^[152]

114. [114]
     Her evidence was that she would not have stopped working at Holy Rosary on Fridays if she was not suffering from neck pain and headaches, because she loved the job, and “it’s part of what my work was”.^[153]

115. [115]
     The plaintiff again saw Dr Hughes 5 months later on 11 October 2011.  Among other things, Dr Hughes’ notes of this attendance record “the Endep & reduced hours at work helped her cervicogenic headaches – now pain down R forearm with elbow flexio & fingers look red & swollen & paraesthesia in fingers – fingers can go white at times – no temp related…”.  He referred the plaintiff for a CT scan of her cervical spine and an ultrasound of her right forearm.^[154]  Dr Hughes also, on this occasion, provided the plaintiff with a letter addressed “To Whom it May Concern”, stating:

“This letter is to certify that this patient has headaches related to her neck which need rest & reduced time at work.”^[155]

116. [116]
     In his oral evidence, Dr Hughes said the reason for issuing this letter was that part of the management of her headaches was to reduce her time at work so that she would have more time to rest, and also reduce her workload and pressures, which were aggravating factors.^[156]   He said that whereas his letter of 3 May 2011 was meant as a finite period of time circuit breaker, this letter was for a long-term reduction of hours.^[157]

117. [117]
     The CT scan and ultrasound did not detect any abnormalities.^[158]  The plaintiff saw Dr Yates on 26 October 2011 in relation to these reports.  Dr Yates’ notes record “nature of pain^[159] suggests musculo-tendinous origin.  Probably overuse syndrome.”

118. [118]
     Dr Yates provided the plaintiff with a letter, addressed “To Whom It May Concern”, stating:

“[the plaintiff] is suffering from cervicogenic headache & overuse syndrome R forearm.  I have advised to reduce her workload in order to rehabilitate.”^[160]

119. [119]
     In his oral evidence, he explained that the reference to cervicogenic headache in this letter was on the basis of Dr Hughes’ notes of his consultations with the plaintiff on 11 October 2011.^[161]

120. [120]
     The next relevant entry is a year later, when the plaintiff went to see Dr Hughes on 16 October 2012.   This visit appears to be preceded, the day or so before, by the plaintiff presenting at a hospital with palpitations.  When the plaintiff saw Dr Hughes on 16 October 2012, he recorded, under “reason for contact”, “palpiations (sic) / chest pain”.^[162]   In his notes, he recorded the following:

“4/7 headaches – went to RBWH initially & had palpitations & dyspnoea as well – went back to RBWH again 2/7 ago & had ECG, CXR (both –ve) & D-Dimer (was +ve & had subsequent CTPA – ok) – advised to see me re Holter & her BP which was ‘up a bit’.  Still awareness of heart beat & ‘jabs like a needle’ left inframammary region – light-headed.  The headaches are typical of the muscle contraction headaches she had in May 2011 which settled well with Endep (not on now).”

121. [121]
     The last of the relevant records in the Ashgrove Clinic’s records is a record of a phone discussion between the plaintiff and Dr Hughes on 24 October 2012.  The reason for the contact is said to be “Holter report normal” (from which I infer Dr Hughes telephoned the plaintiff to advise her of that).  Dr Hughes’ notes also record “headaches still – tci [to come in] & ? restart Endep?”.^[163]

122. [122]
     It is not clear from those notes whether those were things raised with the plaintiff, or queries by Dr Hughes to himself.  

123. [123]
     In any event, the plaintiff has not been to see any of the doctors at the Ashgrove Clinic about either neck pain, or headaches, since 24 October 2012.  She did, however, attend on 7 September and 8 October 2013, and 26 and 27 May 2014, for other concerns.  The medical records finish on the 4^th of June 2014.  I infer that the plaintiff has not been to the GP since then either, on the basis that the plaintiff accepted in cross-examination that the last time she spoke to her GP for anything to do with headaches was 24 October 2012.^[164]

124. [124]
     The plaintiff said that although she did not need to see her GP, she was still taking painkillers.^[165]  She said that she was managing her pain herself, using over the counter medication, but:

“[That is] Through tablets that I wasn’t previously – I didn’t have these headaches before.  I had migraines before.  My life has changed since that accident and I would want to have a normal life.  I would like to go back and not have that.”^[166]

125. [125]
     Although she said the exercises (from the Wesley program) are something she knows can help, sometimes “I just don’t feel like doing them”, “I get fed up with it”, “it’s something that I never had to do before”.^[167]   But she also said that even if she does the exercises, she still needs to take medication.^[168]

126. [126]
     In terms of changes to her work arrangements, as noted above, the plaintiff did not return to Centacare.   Although Centacare’s records reveal her employment was terminated in circumstances where the plaintiff did not respond to correspondence on 1 February and 6 March 2008, asking what her intentions were,^[169] the plaintiff’s evidence at trial was that the termination came about “very, very quickly”, and said she felt “totally deflated”.^[170]  The plaintiff said she would have liked to continue with her work at Centacare and, were it not for the accident, she would not have stopped, because she needed the money (referring to the fact she still had 2 children at private school then, and a mortgage), as well as that she loved what she was doing.^[171]

127. [127]
     In terms of household chores, after the accident the plaintiff said she was not able to do them, and had to depend on her family.   Her husband took over some of the tasks, she paid her son and daughter to clean the bathrooms and make the beds, and various family members would assist with grocery shopping.^[172]  The plaintiff’s evidence is that if her adult children, and her husband, were not available to help with these household tasks in the future, she would have to pay someone to assist her.^[173]   This is the basis of her claim for future paid care.  The parties agreed that the commercial rate for such assistance would be $30 per hour.

128. [128]
     Her husband’s evidence was that after the accident he basically took over most of the physical work, the “manual stuff”, vacuuming and mopping floors, as well as assisting with the bathrooms, and making the beds (their son would also help).  He also took a more active role in the grocery shopping.  He described Saturday morning as his “Mr Mum morning”.^[174] The plaintiff maintained most of the laundry work, although some members of the family would try and assist by carrying things.^[175]   She also does the majority of the cooking. 

129. [129]
     The plaintiff’s evidence is that she still gets headaches, “I’m just constantly having the headaches and to deal with it”, and that she also has neck pain, which is brought on by “just overdoing things”.  For example, after finishing a four-day week, she can feel pain in the back of her head and headaches.  She says that she continues to take pain relief medication.^[176] 

130. [130]
     In her evidence in chief, she said she does not go to the movies any more (because she feels pain in the back of her head), and no longer does any gardening.^[177]  However, in cross-examination she agreed she does some gardening, not regularly though.^[178]  Her husband also said she does some gardening, not the manual side of it, but the flower beds or the trimming.  He said she also does some of painting, in maintaining their wooden house.^[179]

131. [131]
     She attends the gym.  Her husband said she goes once or twice a week, maybe on a Wednesday morning, and on Saturday morning she would attend a pump class or something like that, which she enjoys.^[180]

132. [132]
     Mrs Anderson, the plaintiff’s librarian colleague at St Columbus School, gave evidence that after the accident she observed that the plaintiff could no longer perform some of the duties which she had previously been able to do (such as lifting heavy objects such as piles of books, boxes of books or supplies), she could no longer assist in moving furniture, and she could no longer reach up to high levels of shelving.^[181]  She said the plaintiff did not have difficulty with these things prior to the accident.  Mrs Anderson, or a groundsman, would help out with these activities.

133. [133]
     In cross-examination, she confirmed that her understanding was that the problems the plaintiff had with lifting was a difficulty with her right arm.  In re-examination, when asked was there any other part of the body that she understood the plaintiff to have difficulties with, she said no.^[182]

134. [134]
     She indicated that the plaintiff rarely took days off work prior to the accident, or after the accident, adding “her work ethic is very, very strong, and some days she did come to work and I could see she was not well, but she was determined to fulfil her role to the best of her capacity”.^[183]

Expert medical opinions

135. [135]
     The plaintiff relied upon the expert opinion of Dr Gillett, orthopaedic surgeon.^[184]  As noted above, the plaintiff saw Dr Gillett on 28 October 2008, and his report was prepared on that date.  He did not see the plaintiff again prior to giving evidence at the trial.

136. [136]
     The opinion expressed by Dr Gillett was as follows:

“2. Impairment measurement under AMA5^[185] is made with reference to Table 15-5.  She fits the descriptor of a DRE1 impairment based on the current findings.  0% impairment is measured with that methodology.  With reference to Section 2.35g^[186] p 20 (requirements of ongoing care or treatment) or to Chapter Eighteen (pain), it is my view a 3% impairment of whole person function is measured reflecting the sequelae of this accident.  That is, the above assessment of DRE1 does not adequately express impairment consequent to this accident.  She will be able to continue to function at the level she is at present by persisting with the exercise strengthening modalities in her neck and undertaking due diligence regarding postures and so forth.  Overall she is assessed as 3% whole person function due to the sequelae of the accident.

3. Ongoing management of the condition is self management which she is doing at present.  I do not believe further costs are required.

4. Physiotherapy is not required.  Simple analgesic medication will be required in the future.

5. I would think that the headaches are likely to be a combination of her neck injury and possibly be related to the injury to the brain.  Opinion from an expert Neurologist should be considered in relation to the issue of the headaches.  Certainly the neck condition would cause headaches in their own right.”^[187]

137. [137]
     In relation to paragraph 5 set out above, in his oral evidence in chief, Dr Gillett’s attention was drawn to the fact that in May 2010, Dr Saines had determined that the plaintiff did not suffer an injury to the brain.  Notwithstanding that, Dr Gillett said he maintained his opinion that her neck condition could cause headaches in its own right.^[188]

138. [138]
     Further, in terms of Dr Saines’ diagnosis, in May 2010, of carpal tunnel syndrome, Dr Gillett’s evidence was that what the plaintiff reported to him (in October 2008^[189]) was different, saying:

“So the symptoms she recorded to me were not of a carpal tunnel, and didn’t fit the criteria of a radicular pain, that is, no nerve recompression, but the symptoms were consistent with the diagnosis of a soft tissue or musculo-ligamentous injury to the neck.”^[190]

139. [139]
     What appears from the GP records is that there were two separate circumstances of complaint involving arm pain.  Relatively soon after the accident, in October 2007, the plaintiff reported some right arm and shoulder pain.  By November 2007, there was still some right arm pain, “but not too severe”.  But by 7 December 2007, Dr Yates records that the “radicular pain R arms have resolved”.   Consistently with this, Mike Childs, in the occupational therapy recommendations he had made for her return to work in October and November 2007, included suggestions to avoid lifting with her right upper limb.^[191]    In the GP records, there is no further mention of right arm pain, until March 2010, which is when Dr Yates said this was “probably related to overuse in gym & gardening session”.  This coincides then with Dr Saines’ examination in May 2010, and diagnosis of carpal tunnel syndrome, unrelated to the neck issue.

140. [140]
     The plaintiff did report getting pain in the right upper limb towards the trapezial region ranging to the elbow and forearm, to Dr Gillett in October 2008.  A reasonable inference would seem to be that this was the tail end of the pain which had been experienced post-accident; but different from the pain later reported, in 2010.

141. [141]
     In terms of Dr Gillett’s assessment of the impairment of the plaintiff, that she fits into DRE category 1 is uncontroversial;^[192] however the defendants challenge Dr Gillett’s “uplift” of 3%. 

142. [142]
     I note that in table 15-5, “DRE Cervical Category 1 0% Impairment of the Whole Person”, is described as follows:  “No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.”^[193]

143. [143]
     It was apparent at the trial that there is a difference of opinion amongst some medical practitioners, as to whether chapter 18 of AMA5 permits an uplift for pain, if there is a DRE Category 1 impairment.  The view expressed by Dr Saines^[194] and Dr Reid^[195] is that it does not.   Dr Gillett’s view was that it does. 

144. [144]
     Dr Gillett did not identify any particular part of chapter 18 that permits this expressly, but said “it’s physician’s discretion”,^[196] later adding that (by adding an uplift) what he is doing is “flagging to the court that this person has an injury which is not adequately expressed” by assessment of body or organ impairment under the Guide.^[197] 

145. [145]
     Dr Gillett also relied on para 2.5g, which appears in chapter 2 of the AMA5, and provides for an increase in the impairment estimate by a small percentage (for example, 1% to 3%), in various situations, such as where although treatment of an illness may result in apparently total remission, “it is debateable whether, with treatment, the patient has actually regained the previous status of normal good health” or whether the treatment itself may result in impairment.  Dr Gillett, by reference to this, indicated that 3% was the maximum increase he could give, under this discretionary uplift. 

146. [146]
     As noted above, in cross-examination, Dr Gillett accepted that his finding on examination of the plaintiff was that the injury had a mild effect on her.  When pressed as to why he gave her the maximum increase, when the effects of the injury on her were mild, he said “I just thought she was a genuine person with genuine problems”.^[198]

147. [147]
     On the question of whether the AMA5 permits an uplift, it seems to me to be unsatisfactory for the Court to try to determine that, as a matter of construction of an instrument such as the AMA5 (which I am in any event only provided with part of).^[199]  Some evidence was led as to what the author of AMA5 may have had in mind,^[200] but in the context of this proceeding, and given the general nature of that evidence, I do not consider that I can act on that in any definitive way.   It seems to me a matter that really ought to be resolved at the AMA level, and a clear direction given to practitioners.   I can see the argument that chapter 18 does not seem to contemplate an uplift, other than where the patient has a verifiable medical condition that causes pain, or a well-established pain syndrome, or associated pain syndrome (see para 18.3a); but then para 2.5g does seem to contemplate an increase, in the circumstances there referred to.  Furthermore, the “gaps” in the percentages in table 15-5^[201] could be said to contemplate some kind of discretionary movement in between. 

148. [148]
     In any event, I do not propose to make any kind of ruling or finding about this.  Even if it is permissible, it seems to me that, on Dr Gillett’s own findings, and if 1-3% is the range of a permitted increase, to give the plaintiff the maximum is inconsistent with his broader findings of the (mild) impact of the injury on the plaintiff.  But in the end it does not seem to me that this really affects the assessment of damages in any significant way, for reasons which I will return to later.^[202]

149. [149]
     The defendants relied upon the expert opinions of two neurologists, Dr Saines and Dr Reid.

150. [150]
     Dr Reid saw the plaintiff on 21 January 2008, at the request of WorkCover.  I have referred above to Dr Reid’s record of what the plaintiff reported to her, and her observations of the plaintiff.   In her report of 21 January 2008^[203] Dr Reid expressed the following opinions:

1. (a)
   that the “prognosis for total recovery from her soft issue [sic] cervical spine injury is excellent”; and

2. (b)
   “I see no reason why this lady should have any assessable impairment”, referring in this regard to “PI Code 4101 – ‘hyperextension musculoligamentous injury to cervical spine with subjective symptoms, but no significant clinical findings’ – with a permanent impairment of 0%”.

151. [151]
     Dr Reid has not seen the plaintiff again since January 2008. 

152. [152]
     At the trial, a further “statement” of Dr Reid was tendered, which was essentially a “file note” of a conference between the defendants’ legal representatives and Dr Reid, signed by Dr Reid on 8 May 2015.^[204]  In that document, Dr Reid referred to having been provided with “a brief containing all medical reports concerning the Plaintiff in this matter” and said she maintains the position adopted in her report (at [6]).  She also states:

1. (a)
   In relation to the fact that the plaintiff has not attended her GP for any neck pain or headaches since 24 October 2012, that she considers this “consistent with the opinions expressed in my reports (sic) and inconsistent with any claim for functional incapacity or inability to work as the Plaintiff has claimed” (at [7]).  Although Dr Reid was cross-examined about the precise wording in [7] of exhibit 6, it is apparent that this is a document written by the defendants’ solicitor, and adopted by Dr Reid, but the substance of her evidence is that, in terms of what she would make of the fact the plaintiff has not needed to see her GP since October 2012: 

“most people, if they have a significant concern about themselves and most people if they have intractable pain and – would be seeing their doctor or they would be seeing another health professional, you know, sometimes sadly a chiropractor.  But most people, we advise that they see their general practitioner, who is the core person responsible for sorting out problems of chronic pain”.^[205]

2. (b)
   That she does not wish to change her opinion expressed in her report; that any injury suffered in the motor vehicle accident by the plaintiff would not cause an incapacity to carry out work, and if she is experiencing any restrictions it is as a result of a pre-existing migraine condition and not the accident (at [10]).

153. [153]
     In her oral evidence, in cross-examination, Dr Reid confirmed that it was her opinion that, when she saw the plaintiff, five months post-accident, she had reached maximum medical improvement, in terms of her injury as a result of the accident.^[206]

154. [154]
     She agreed that a soft tissue injury to the cervical spine can trigger headaches, “whilst there is tension and tightness in the cervical musculature”.  As to whether such an injury can trigger headaches with a migrainous component if the person has a history of migraine, her evidence was:  “There may be a temporary exacerbation, but it would not be a condition that would go on indefinitely.  Similarly, any muscle tightness or tension would settle and cease, in my experience, over a short period of time”.^[207]

155. [155]
     In terms of whether the symptoms of a soft tissue injury can become chronic in nature, that is, persist for a longer period, Dr Reid’s view was that of patients who have a “flexion extension neck injury in which it’s a soft tissue injury”, the vast majority, about 80%, get better within a short period of time.  Of the remainder, who complain of chronic pain, or who have “chronic whiplash”, there is considerable argument in the literature over whether that condition exists or not.  She said it is a condition which cannot be proven or disproven, but is a diagnosis which, she considers, occurs in a medico-legal situation, rather than in patients who are non-litigants.^[208]  But Dr Reid said in forming her opinion in relation to the plaintiff, although she took that literature into account, the main thing that influenced her was her clinical experience, over the past 35 years, of treating patients who are not litigants.^[209]

156. [156]
     Although she accepted that the symptoms of a soft tissue injury can “come and go”, and could be aggravated by activity, she said “It doesn’t drag on for years and years and years”,^[210] and that she does not believe “that a minor soft tissue strain will cause – give rise to intractable symptoms for years and years if not indefinitely.  That’s not my clinical experience.”^[211]

157. [157]
     Dr Reid’s evidence was that “cervicogenic” headaches could be caused by an injury, or could be caused simply by muscle tightness and tension in the neck and shoulders, with no injury; and that in terms of the symptoms of such headaches, it would not be possible to tell the difference in terms of causation.^[212]  Further, in terms of cervicogenic headaches caused by tension, when asked whether stress plays any role in that, she said “massively”.^[213]

158. [158]
     Dr Saines saw the plaintiff on 19 May 2010, at the request of her solicitors.  He was, however, called to give evidence in the defendants’ case.  In his report dated 21 May 2010^[214] he expressed the following opinion:

“Her clinical examination reveals no relevant abnormality.  Her cervical radiographs are reported normal.  She does have intermittent sensory symptoms in the fingers which developed since the accident although the temporal relationship is not clear.  I believe the symptoms are consistent with carpal tunnel syndromes and this condition has been confirmed on electrophysiological studies.  These symptoms are not related to the motor vehicle accident.

With regard to the degree of permanent impairment I refer to the AMA Guides to the Evaluation of Permanent Impairment Edition 5.  Her condition would be classified as DRE Cervical Category 1 (Musculoligamentous strain of the cervical spine, normal clinical examination).  This is rated at 0% Whole Person Impairment according to Table 15-5.

No further treatment is required.  She is not a candidate for surgical intervention.  I do not expect her condition to worsen in the future or further interfere with her function.  In fact, I am hopeful that she will continue to gradually improve.”^[215]

159. [159]
     As noted above, in a follow up letter, addressed to the defendants’ solicitors, dated 24 December 2012^[216] Dr Saines stated:

“At the time of my assessment [the plaintiff] had no persistent symptomatology.  There was intermittent, mild aching pain of the neck as well as sensory symptoms in the fingertips.  The latter is due to carpal tunnel syndrome unrelated to the accident.

[The plaintiff] ceased her part time job in after school care and I understand she has reduced her working hours with the Catholic Education Department.  As far as I can ascertain these workload reductions were probably not the result of her medical condition, given the mild nature of the symptomatology.”^[217]

160. [160]
     As with Dr Reid, there was also tendered a further “statement” of Dr Saines, which is a file note of a more recent conference between Dr Saines and the defendant’s legal representatives, signed by Dr Saines on 11 May 2015.^[218]   Relevantly, this note records:

1. (a)
   that Dr Saines has been provided with all the medical reports concerning the plaintiff in this matter, and maintains the position he adopted in his previous reports (at [7]);

2. (b)
   that in relation to the fact that the plaintiff has not seen her GP since 24 October 2012 for neck pain or headaches, that he considers this consistent with his opinions, and inconsistent with a functional incapacity or inability to work as the plaintiff has claimed (at [8]) (in cross-examination he explained that he understands there is a claim that work may be limited and function impaired as a result of the injury, and in [8] he was “simply making a statement there that that didn’t seem as though it would be the case from the examination I undertook”^[219]);

3. (c)
   that he does not change the opinion expressed in his reports, that “upon clinical assessment any injury suffered in the motor vehicle accident by the Plaintiff would not cause an incapacity to carry out work”; and “[s]he may still be experiencing restrictions as a result of a pre-existing migraine condition and not the accident” (at [11]).

161. [161]
     Dr Saines, in his oral evidence, during cross examination, was asked to explain what he had said, in his May 2010 report, in terms that he was “hopeful that she will continue to gradually improve”.  He said:

“… the pattern of – of acute injuries is that an injury occurs at a certain point in time, and the injury may remain stable, or it may improve thereafter.  If there is no underlying demonstrable pathology then there’s no reason for it to worsen, and that was what I meant there.  And I was still optimistic that she may continue to improve.  She didn’t have a lot of problem at the time I saw her, and I was just – I was just hopeful that that might continue to recover.  That’s the usual course of events.”^[220]

162. [162]
     At the time he saw the plaintiff, he said he “thought that she’d reached a very good position of improvement, and I just projected some optimism for her”.^[221]  

163. [163]
     When asked if he accepted that injuries such as soft-tissue injuries of the cervical spine can continue to demonstrate symptoms on an ongoing basis indefinitely, he said “that’s not my concept of a muscular ligamentous injury; these recover”.^[222]  He also said:  “I believe they recover over a period of time.  It’s not a specific period of time, but I just hark back to the fact that the condition had improved significantly from the time of the injury to the time that – that I examined [the plaintiff], as described there.”^[223]   He had earlier suggested a period of “two/four years maybe” for the symptoms of an acute injury to resolve entirely.^[224]

164. [164]
     Dr Saines said that in the plaintiff’s case, and what he described in terms of her ongoing symptomatology when he saw her in May 2010, he “would have thought that was pretty much a recovery at that point in time”.^[225]  Further, when pressed in cross-examination about not having seen the plaintiff since May 2010, he said that “at the time I saw this lady she was working, she had intermittent mild symptomatology.  And that – that status would not have changed as a result of anything sustained in the accident.  So I think I can project ahead a little without seeing the patient.”^[226]

165. [165]
     In terms of whether a soft tissue injury of the cervical spine can trigger a headache, Dr Saines’ evidence was that:  “It can trigger neck and the muscle contraction.  But I don’t agree that it causes migraines”.  When asked “[w]hat about just headaches?”, he said:  “Little headaches perhaps, yeah, maybe because of the proximity of the neck to the back of the head and the extension of muscle contraction.  But very much an associated referral of pain.”^[227]

166. [166]
     In terms of work reduction in 2011, he said he would not have anticipated that that would have been required on the basis of symptomatology and findings in 2010, but there may be other reasons for reducing workload.^[228]

Findings

167. [167]
     In general, I accept that the plaintiff was an honest and sincere witness, who was endeavouring to relate the truth as she believes it to be.

168. [168]
     However, for reasons which I will shortly explain, I have not accepted some aspects of the plaintiff’s evidence, on the basis that when it is carefully analysed, in the context of the whole of the evidence, I am not satisfied as to its reliability. 

169. [169]
     The difference between credibility (which concerns, essentially, honesty) and reliability is helpfully explained in the following passage from the judgment of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:^[229]

“ ‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.  Credibility covers the following problems.  First, is the witness a truthful or untruthful person?  Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue?  Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them?  Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?  Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist.  It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.  For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.  Therefore, contemporary documents are always of the utmost importance.  And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken?  On this point it is essential that the balance of probability is put correctly in the scales in weighing the credibility of a witness.  And motive is one aspect of probability.  All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process.  And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”^[230]

170. [170]
     In my view, the plaintiff is a truthful person, telling the truth as she sees it, but that “truth”, I consider, has been altered over the course of the almost 8 years since this accident occurred, whether that be by unconscious bias, wishful thinking or overmuch discussion with others, in the context of this litigation.  The main reason why I have formed this view is that, particularly in terms of the persistence of symptoms following the accident, the impact of those symptoms on the plaintiff, and the causal connection with the motor vehicle accident in August 2007, I consider that the plaintiff’s evidence is inconsistent with the contemporaneous records kept by her GP, and the records and observations made by the other health practitioners and experts at earlier times, as well as the experts’ opinions. 

171. [171]
     To a much lesser extent, there are aspects of the plaintiff’s evidence, the reliability of which I consider tainted by overstatement and justification.   An example of the former was the plaintiff’s evidence, in answer to the question for how long after the accident did she feel the “extreme pain”, when she first said that “I feel it every week”, only later agreeing it got “a little better” in 2011 when she reduced her hours.^[231]  In my view, that must be seen as overstatement, in light of the broader evidence of improvement in her symptoms.  An example of the latter was her evidence about the questionnaires at the Wesley pain clinic, being directed to how she felt on that particular day,^[232] which in my view must be seen as an attempt to justify or explain away the inconsistency between her evidence at trial, and what was recorded in February 2008.

172. [172]
     I accept that the plaintiff suffered a musculoligamentous strain injury involving the supporting structures of her cervical spine.  As already noted, it is not in dispute that that injury is appropriately classified as DRE Cervical Category 1, giving her a 0% whole person impairment.   For the reasons given above, I do not express a concluded view upon whether Dr Gillett’s approach, of increasing this on a discretionary basis, is permitted under AMA-5.  However, it is my view that, on the basis of his own findings, the increase given by Dr Gillett (of 3%) is not supported.

173. [173]
     I found the evidence of Dr Yates to be of particular assistance, given that he was the plaintiff’s GP for many years prior to the accident, and saw her on a regular basis after the accident, at least up until she saw Dr Hughes in May 2011.   Dr Yates’ evidence supports a finding that the plaintiff was still suffering from quite considerable neck pain, and headaches, in the lead up to her attendance at the Wesley pain clinic.   I am satisfied that the plaintiff’s attendance at that pain clinic can be said to be related to the symptoms she was suffering as a result of her accident-caused injury. 

174. [174]
     Dr Yates’ evidence was that from his perspective the plaintiff’s issues with respect to her neck injury had resolved by the time he wrote the travel letter for her in May 2009.   As I noted above, that is supported by the fact that, other than one visit for a “migraine with vomiting” in March 2008, Dr Yates had not seen the plaintiff for any issues in connection with the accident since February 2008. 

175. [175]
     In relation to the plaintiff’s evidence regarding her headaches, I accept that the whiplash injury did cause her to suffer headaches, particularly in the initial period of say 6 months post the injury (up to the Wesley pain clinic). 

176. [176]
     In so far as the admission to the RBWH is concerned, I do not consider that I can find that headache was solely caused by the whiplash injury, in light of the evidence referred to above, from the RBWH’s records, including the discharge summary and Dr Banney’s follow up letter.  That material posits the possibility that the whiplash injury may have contributed, but also references the background of a history of migraines.  Nevertheless, consistently with that material, it is reasonable to infer that the injury did contribute to the headache then suffered by the plaintiff. 

177. [177]
     What Dr Banney’s follow up letter evidences is that by late December 2007, the headache had dissipated, but the plaintiff still felt pain in the back of her neck, which I infer was the continuing effect of her whiplash injury.

178. [178]
     Dr Reid’s report, of an examination on 21 January 2008, evidences the plaintiff waking up 3 days a week with a headache, rated as a 6/10 for pain.

179. [179]
     The GP records continue to refer to complaints of headaches and neckache, in late January 2008, and as already noted the plaintiff attended the Wesley pain clinic in February 2008.

180. [180]
     After that, it is difficult to disentangle the cause of the headaches which the plaintiff says she continued (and continues) to suffer.  However, on an objective analysis, I note the following.

181. [181]
     First, the GP records, post February 2008, are in my view more consistent with a finding that the plaintiff was presenting with migrainous headaches, such as might be expected given her history; rather than a new form of headache, caused by the whiplash injury.  I refer in this regard to the attendance on 7 March 2008 (plaintiff complaining of migraine with vomiting, treated with injections of maxolon and tramal, which was the treatment used for her migraines); the attendance in Melbourne in January 2009 (when the plaintiff complained of a migraine and was given an injection of morphine and maxolon); the attendance on 27 July 2009 (plaintiff complaining of nausea and occipital headache, which she said was not like her usual migraine, but Dr Yates thought might be a tension headache); and the attendance on 9 February 2010 (plaintiff complaining of occipital headache and vomiting, which Dr Yates presumed was migrainous, and gave her an injection of maxolon and tramadol).

182. [182]
     Second, as I have said above, seen in context, it seems to me the visit to Dr Hughes on 3 May 2011, when the plaintiff complained of getting headaches most weeks lasting 2-3 days, cannot reasonably be inferred to be a worsening of the accident-caused condition.

183. [183]
     Related to that matter, in terms of the expert opinion, Dr Gillett simply says that “the neck condition would cause headaches in their own right”, but so much may be accepted, particularly in the early period following the accident.  That sentence in his report, on the basis of his examination of the plaintiff in October 2008, does not support a finding that all headaches experienced by the plaintiff in the period since then are so caused, as opposed to being part of her pre-existing migraine condition, or otherwise tension headaches unrelated to either the accident or that condition.  More significantly, both neurologists, Dr Saines and Dr Reid, whilst accepting that the whiplash injury could cause headaches, rejected the idea that it would, on an ongoing basis, cause severe migrainous headaches.  Further, Dr Saines’ opinion was that the more severe bouts of headache reported by the plaintiff had a migraine pattern to them, and in so far as the plaintiff felt there was some variation between the post-accident headaches, and her pre-accident migraines, he noted that “from experience migraine can be variable in its distribution and quality”.   I note also that, in terms of what Dr Saines recorded in May 2010, the “severe headaches” were then described as relatively infrequent, that is perhaps about four times a year.  That is the same period of time that the plaintiff (and her husband) reported that she had suffered migraines post her hysterectomy in 2004.

184. [184]
     I accept the evidence of Dr Saines.  On the matter of the headaches, I do not perceive Dr Gillett to have given evidence inconsistent with that (his evidence limited in the manner outlined above).  Dr Reid’s evidence is also consistent with that of Dr Saines.   For reasons I will come to, I would tend to prefer Dr Saines’ evidence over Dr Reid’s in some respects, simply because it reflects a less rigid view about the time for recovery from a whiplash injury.  But in so far as the headache issue is concerned, I do not find their opinions to be in conflict.

185. [185]
     On balance, I find that the continuing headaches reported by the plaintiff are not causally related to the whiplash injury she sustained in the accident.   They may be explained either as related to her pre-existing migraine condition, or other tension headaches such as might be suffered by a person from time to time.

186. [186]
     The plaintiff also reports continuing neck pain.    What can be seen on close analysis of the medical records is that, following the Wesley pain clinic, the plaintiff did not raise neck pain with her GP again (as opposed to her headaches). She did of course speak to Dr Gillett about it in October 2008.  However, when Dr Saines saw her in May 2010, she had no persistent symptomatology, although it was said she “does develop dull aching pain around the back of the neck about once per week”, which settles in a couple of hours with pain relief (noting the plaintiff’s evidence that to her “settles” means “takes the edge off”).

187. [187]
     I am persuaded by the evidence of Dr Yates, considered in the context of a close analysis of all the evidence, that, by about mid-2009, the plaintiff’s issues related to her accident-caused neck injury had essentially resolved.  But on the basis of Dr Saines’ evidence, which I accept, it may be reasonable to infer that the plaintiff continued to have some mild symptoms up until she saw him in May 2010.  In so far as Dr Reid’s evidence would suggest full recovery at a much earlier stage, I prefer the evidence of Dr Saines.  However, it seems to me both Dr Reid and Dr Saines are of the same opinion, that, ultimately, injuries of the kind suffered by the plaintiff do recover, they do not linger on for years and years.  Dr Saines was of the view that, when he saw the plaintiff in May 2010, she had reached a very good position of improvement, “that was pretty much a recovery at that point in time”, and he could see no reason why her status at that point would have changed as a result of anything sustained in the accident.

188. [188]
     I therefore find that by about early 2010 the plaintiff had recovered from the symptoms of her accident-caused injury, and that any symptoms she has subsequently experienced are not causally related to the accident in August 2007.

189. [189]
     To the extent that Dr Gillett’s evidence is inconsistent with this, I do not accept his evidence.  I have already explained my reasons for not accepting his analysis of a 3% whole person impairment. 

190. [190]
     On the basis of my findings, I am unable to accept the case advanced by the plaintiff, that the injury she sustained in the motor vehicle accident on 27 August 2007, caused her to suffer such serious and ongoing consequences as to justify recovery of a substantial amount for economic loss, both in the past, and into the future.   I do accept, and this will be reflected in my assessment of damages, that the injury caused her to suffer discomfort for a period of time, which in my view cannot be said to be later than, generously, early 2010.  However, my view is that, after this time, the evidence is to the effect that the plaintiff had essentially recovered from the symptoms of the injury she sustained in the accident on 27 August 2007, such that any changes made to her working arrangements after this are not causally related to the accident; and such that she cannot be said to have suffered any impairment of her earning capacity in the future.

191. [191]
     I turn now to the assessment of damages, having regard to the findings I have made.

General damages

192. [192]
     Sections 61 and 62 of the Civil Liability Act 2003 (Qld) (CLA) govern the calculation of general damages.  In the first instance, that involves assessing the appropriate “injury scale value” (ISV) under the rules provided under the Civil Liability Regulation 2003 (CLR).^[233]

193. [193]
     The rules for assessing ISV’s are set out, relevantly for present purposes, in s 6 and schedules 3 and 4 of the CLR.  Schedule 3 sets out a number of matters the court is to have regard to in the application of schedule 4 (which sets out the range of ISVs for various injuries).

194. [194]
     As explained in s 2 of schedule 3, in assessing the ISV for an injury, it is necessary to consider the range of injury scale values stated in schedule 4 for the particular injury concerned, noting that the range of ISVs reflects the level of adverse impact of the injury on the injured person.   Section 8(2) of schedule 3 provides that in assessing an ISV, the court must have regard to the provisions set out in schedule 4 (such as examples of injury, examples of factors affecting ISV assessment and comments about appropriate level of ISV), to the extent they are relevant in a particular case.  But the court may have regard to other relevant matters also (s 9).

195. [195]
     Under s 10 of schedule 3, the extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.  Sections 11 and 12 contain provisions dealing with the requirements of medical reports stating whole person impairment percentages, and the greater weight to be given to such an assessment provided under AMA5, than to one not based on that criteria.

196. [196]
     The parties were agreed that the relevant item in schedule 4 for the plaintiff’s injury is item 89 “minor cervical spine injury”.  The relevant range of ISVs is 0 to 4.  Item 89 includes the following provisions:

“Comment

• Injuries within this item include a whiplash injury with no ongoing symptoms, other than symptoms that are merely a nuisance, remaining more than 18 months after the injury is caused.
• There will be no objective signs of neurological impairment.

Example of the injury

A soft tissue or whiplash injury if symptoms are minor and the injured person recovers, or is expected to recover, from the injury to a level where the injury is merely a nuisance within 18 months after the injury is caused.

Comment about appropriate level of ISV

• An ISV at or near the bottom of the range will be appropriate if the injury will resolve without any ongoing symptoms within months after the injury is caused.
• An ISV at or near the top of the range will be appropriate if the injury, despite improvement causes headaches and some ongoing pain.”

197. [197]
     As already noted, all experts were in agreement that, in terms of AMA5, the plaintiff’s injury falls into DRE Cervical Category 1, which carries a 0% impairment of the whole person under table 15-5.  Dr Gillett considered this did not appropriately reflect her impairment, and so increased it, as a matter of his discretion, to 3%.

198. [198]
     Although the plaintiff conceded that on either view, the injury is appropriately classified as falling within item 89, it was submitted that “the severity of [her] symptoms and her complaints of ongoing pain and headaches over a prolonged period and the interference of her symptoms on her amenity of life …warrant an uplift of 25% under Schedule 3 Part 2 Division 1 of the CLR”.^[234]

199. [199]
     The defendant submits that, as a matter of construction of schedule 3 of the CLR, there cannot be an uplift for a single injury (that being provided only for multiple injuries) and, in any event, that the plaintiff’s circumstances do not, as a matter of fact, justify any uplift.

200. [200]
     In relation to the construction issue, the only provisions in schedule 3, part 2, division 1 of the CLR which deal with an increase in the ISV for an injury, above the maximum ISV in the range, are ss 3 and 4, which are both concerned with the proper approach where there are multiple injuries.  I note that the plaintiff cited the decision of Daubney J in Walker v Allen [2011] QSC 131 in support of the submission for an uplift.  However, that decision also was concerned with multiple injuries (see at [26]).

201. [201]
     Counsel for the plaintiff referred me to ss 8 and 9 of schedule 3, in reply.  As already noted, those provisions require the court to have regard to the “provisions” set out in the middle column of schedule 4, relevant to a particular injury (s 8), but also state that the court may have regard to other matters to the extent they are relevant in a particular case (s 9).   Neither of those provisions seems to me to contemplate a discretionary increase above the maximum ISV for a single injury.

202. [202]
     On the other hand, I note that s 61(2) of the CLA provides that if a court assesses an ISV for a particular injury to be more or less than an ISV prescribed for or attributed to similar particular injuries, under the regulations, the court must state the factors on which the assessment is based that justify the assessed injury scale value.  That provision might be said to contemplate discretionary increases (or reductions), even in the case of single injuries.^[235] 

203. [203]
     I note also that, in terms of s 2(1) of schedule 3, the requirement is that the “court must consider the range of” ISVs stated in schedule 4 for the injury, which may suggest the court is not bound to select an ISV within that range.

204. [204]
     In the circumstances of this case, I do not consider that I need to reach a concluded view about the proper construction of the CLA and CLR in this regard,^[236] because it seems to me to follow from the findings I have otherwise reached about the plaintiff’s case that, even if the legislation does permit such an uplift, the factual circumstances do not justify that.   The defendant accepted that an ISV of 4 (that is, the top of the range for item 89) would be appropriate, and that is the assessment that I propose to make.

205. [205]
     General damages are therefore calculated at $4,000.00.^[237]

206. [206]
     I note that no interest is claimed, having regard to s 60(1) of the CLA.

Past economic loss

207. [207]
     The plaintiff’s claim for past economic loss is on the basis that, but for the accident, she would not have ceased her work in the afternoons for Centacare (that having occurred from the date of the accident) and would not have ceased her work at Holy Rosary School on Fridays (that having occurred in May 2011).

208. [208]
     The consequence of my finding above - that, by no later than early 2010, the plaintiff’s injury, and symptoms, caused by the motor vehicle accident, must be taken to have been resolved – is that I do not accept that the plaintiff’s ceasing to work on Friday’s at Holy Rosary School is causally related to the motor vehicle accident, such as to justify an award of damages for lost earnings.

209. [209]
     I do accept that she suffered a loss of earnings, in respect of her work for Catholic Education, up until she returned to work after attending the Wesley pain clinic.  This is said to be a period of 27 weeks of income, at the average^[238] rate of $429.80 net per week, which amounts to $11,604.60.^[239]

210. [210]
     I also accept that she is entitled to recover her loss of earnings in respect of her Centacare job, but for a longer period.  The rationale for that view is that the plaintiff was unable to properly return to work until after she attended the Wesley pain clinic.  The recommendation of the occupational therapist was that she return to her Catholic Education job first, and then Centacare a month later.  As I have noted, her employment at Centacare was in fact terminated, so there is an added complication that it may have taken her some time to find equivalent replacement employment.  I am also prepared, on the basis of the findings I have made above, to infer that it may have been difficult for the plaintiff to resume her full hours (that is, including the afternoons) even in March 2008.  Taking into account both the difficulties of finding replacement employment, and an additional time for the plaintiff to build up to full hours, I propose to calculate past loss of this income to the end of 2009 (which also roughly coincides with the period when Dr Yates says he thought the issues with the neck injury had resolved, and before seeing Dr Saines).  That comes to a total of 122 weeks.  At the average rate of $177.75 net per week, that amounts to $21,685.50.

211. [211]
     I have tested that methodology against the defendant’s submission that a global component for past loss (in addition to the agreed 6 weeks of lost wages) would also be appropriate, to take into account the risk that the plaintiff may have taken some time to find new employment, after her employment with Centacare was terminated.   The defendant suggested a global amount of $15,000.^[240]   That figure reflects about 84 weeks at $177.75 per week.  Given that in my view the loss of wages is not limited to 6 weeks, but at least extends to the end of March 2008 (that is, when the occupational therapist suggested the plaintiff restart at Centacare), which would be about 31 weeks, in the analysis I have undertaken, I have added about 91 weeks on to that, which is not very different from what the defendant has suggested.

212. [212]
     The two amounts above add up to $33,290.10, which I will round up to $33,500 as the award for past economic loss.

213. [213]
     Interest will be awarded on the amount of $21,652 (being the total of $33,500 less the workers’ compensation payments of $11,848) at the rate of 1.165% for the period from the date of the accident to judgment (a period of approximately 7 years and 9 months), which is $1,954.90.

214. [214]
     An amount for past superannuation will be awarded, at the agreed rate of 9%, which is $3,015.00.

Future economic loss

215. [215]
     The plaintiff’s claim for future economic claim was calculated, in the first instance, on the basis of a precise amount calculated by reference to the average net weekly amounts she was earning in her Centacare job (four afternoons a week) and her job at Holy Rosary School (on Fridays).   This was said to equate to an ascertainable amount of future economic loss of $144,967.16 (once discounted for various contingencies).^[241]   However, an alternative claim for a global sum of $100,000 was also made, under s 55 of the CLA, on the following basis:

“[The plaintiff] is presently 53 years of age.  She has suffered actual loss of earnings as a consequence of the injury sustained.  In relation to her ongoing employment with Brisbane Catholic Education her tasks have been modified to enable her to continue her employment.  She has required specialised equipment and the provision of assistance by co-workers in order for her to carry out her tasks.  If her employment at Brisbane Catholic Education were not to continue, there is no way she could avoid disclosing her injury on (sic) any potential new employer.  Consequently [the plaintiff] is vulnerable in the open labour market given her age, employment history and the nature of her injury”.

216. [216]
     For the reasons I have outlined above, I do not accept that the plaintiff’s decision to reduce her workload in May 2011 can be said to be causally related to the injury she sustained in the accident.  

217. [217]
     But I need also to consider whether there is any basis for an award of damages for loss of future earnings, on a global basis.

218. [218]
     Relevantly, by s 55(2) of the CLA, the court may only award damages if it is satisfied that the person will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

219. [219]
     In order to recover an award for economic loss it must be demonstrated that the injured person’s negligence-caused impairment has resulted in loss in monetary terms.^[242]  The principle was confirmed in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ:

“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied.  The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury.  The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in additional to general damages for pain, suffering and loss of enjoyment of life.  It is that ‘the diminution of … earning capacity is or may be productive of financial loss.’”^[243]

220. [220]
     On the basis of the findings I have made above, I am not satisfied the plaintiff has proved that her earning capacity has been diminished by reason of the negligence-caused injury.    Accordingly, I do not allow any amount for future economic loss.

Future care

221. [221]
     The plaintiff’s claim is put on the basis that she needs assistances with the heavier household tasks, such as vacuuming, mopping etc.  Although at present her husband assists with these tasks, and to a lesser extent some of her adult children, if they were not there to assist, she says she would need to pay someone.

222. [222]
     It is apparent that, in the plaintiff’s household, there is now greater balance in terms of responsibility for household tasks.  They are shared at least as between the plaintiff and her husband, with some assistance from some of their children, now adults, who also live with them.  The plaintiff is now free to do some other things, like going to the gym on a Saturday, while family members assist with the house cleaning.  All of that is a good thing.  It was no doubt prompted by the plaintiff’s accident in the first place, when she clearly could not have carried the burden of the housekeeping she previously did.  Hopefully it will continue.  But in any event, on the basis of the findings I have made above, I am not satisfied that, even if such expenses would be incurred in the future, that can be said to be on the basis of her accident-caused injury.

Future expenses (special damages)

223. [223]
     The plaintiff claims a global amount for the cost of future pain relief medication ($1,000).   The defendant submits that no amount should be allowed for this. 

224. [224]
     It follows from the findings I have made above, that no amount can be awarded for future medication.

Summary of damages to be awarded

225. [225]
     In summary, for the reasons set out above, damages are assessed as follows:

226. [226]
     There will be judgment for the plaintiff in the amount of $57,942.88.  I will hear the parties as to costs, and to that end propose to direct that any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 14 days.