Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

Findlay v Queensland Folk Federation Inc[2016] QDC 87Reid DCJ
Add to List

Findlay v Queensland Folk Federation Inc[2016] QDC 87

DISTRICT COURT OF QUEENSLAND

CITATION:	Elizabeth Ann Findlay v Queensland Folk Federation Inc and Ors [2016] QDC 087
PARTIES:	ELIZABETH ANN FINDLAY (plaintiff) v QUEENSLAND FOLK FEDERATION INC. (first defendant) And KAYBRI PTY LTD (ACN 109 226 640) AS TRUSTEE FOR THE ASV TRUST AND STEWART JARMAN AS TRUSTEE FOR THE JARMAN FAMILY TRUST TRADING AS ACTIVE SOUND AND THE P.A. SHOP. (second defendant) And NIGEL PARRATT (third defendant) And PRENDEVILLE PRODUCTION SERVICES (fourth defendant)
FILE NO/S:	4057 of 2010
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2016 to 19 April 2016
JUDGE:	Reid DCJ
ORDER:	Judgment for the plaintiff in the sum of $6000.00
CATCHWORDS:	PERSONAL INJURY – DAMAGES ASSESSMENT – significant prior medical history – temporary symptoms – subsequent event – credit of plaintiff – assessment of credit of plaintiff with psychiatric injury Civil Liability Act 2003 (Qld) ss 61, 62 Civil Liability Regulations 2003 (Qld) Greenall v State of Queensland [2013] QDC 277, considered. Schneider v Smith & Anor [2016] QSC 47, considered.
COUNSEL:	P De Plater for the plaintiff C Heyworth-Smith QC and D Cormack for the defendants
SOLICITORS:	Schultz Toomey O'Brien for the plaintiff Meridian Lawyers for the first defendant Moray Agnew for the second defendant Barry Nilsson for the third defendant Norton Rose Fulbright Australia for the fourth defendant

Introduction

[1]
The plaintiff, who was born on 12 December 1962, suffered personal injury early in the morning on 1 January 2008. She was in a tent at the Woodford Folk Festival when a stand to which a number of stage lights were fixed fell, striking her on the head. The weight of the stand and lights appears to be about 15kg but nothing, in my opinion, can be drawn from that fact. There is no acceptable evidence, other than the plaintiff’s injuries, which enables me to draw any conclusions about the force of the impact or its relationship to the likelihood of the plaintiff suffering injury.

[2]
Each of the defendants was involved in the management of the venue. They have accepted full responsibility for the incident and resolved the apportionment of liability between themselves. Consequently the issue to be determined is the quantum of the plaintiff’s admitted claim.

[3]
The plaintiff alleges in paragraph 26 of the Further Amended Statement of Claim (FASC) that as a result of the incident she suffered;

(a)
closed head injury, with resulting concussion

(b)
post-concussional syndrome

(d)
bruising and lacerations to the face and forehead

(e)
psychological injury.

[4]
She also alleges that as a consequence of those injuries she suffers from a major depressive disorder. She alleges that the injuries have significantly impaired her enjoyment of life, destroyed her capacity to earn and resulted in a need for significant assistance with activities of life and a need for medical and related treatment.

[5]
She claims the following damages in that FASC of the 19 November 2012; and in her counsel’s final submissions.

Damages Claimed	FASC	Submissions
General damages	$13,800.00	$11,000.00
Economic loss	$25,000.00	$55,000.00
Future economic loss	$115,000.00	$50,000.00
Loss of superannuation	$12,600.00	$5,117.25
Past care	$29,295.00	$65,000.00
Future care	$72,257.50	$35,000.00
Future psychiatric expenses	$7,272.00	$45,000.00
Other future expense	$14,454.18	(All future expenses)
Special damages	$13,670.70	$27,025.67
TOTAL	$303,349.38	$293,142.92

[6]
She also seeks interest on past losses.

[7]
The defendants, whilst admitting responsibility for the incident, deny the plaintiff suffered the injures alleged in paragraph 26(a), (b), (c) or (e) of the FASC as set out in [3] hereof. They admit only that she suffered from a bruise and scratch on her forehead. They allege that the plaintiff’s allegations of significant consequences arising from the accident are false and that any damages are minimal. In particular they allege that the plaintiff;

(a)
had a long standing and significant pre-existing psychological or psychiatric disorder.

(b)
had suffered a significant lumbar spinal injury in 2006.

(c)
had applied for a disability support pension (DSP) based on the effects of the lumbar spinal injury and psychological disorder in 2007.

(d)
had a motor vehicle accident on 9 May 2008 and suffered cervical spinal injuries, concussion and aggravation of lumbar symptoms.

(e)
had chronic asthma and bronchiectasis.

(f)
was approved in 2008 for a DSP for reasons unrelated to the Woodford incident.

(g)
had at the time of the incident in January 2008 no, or, in the alternative, only minimal earning capacity and that this was unaffected by the subject accident.

(h)
if she has any need for future treatment or assistance, she has that because of matters unrelated to the subject incident.

[8]
In her reply the plaintiff denies she was at the time of the accident suffering from a pre-existing psychological injury. She also alleges as at 1 January 2008 the lumbar spinal injury suffered in 2006 did not significantly restrict her from making and selling jewellery, working part time as a retail assistant at the festival or managing her activities of life including care of her two teenage children. Her two children, Sophie and Dylan, were born on 6 September 1992 and 5 December 1994 respectively.

[9]
It can be seen that considerations of the plaintiff’s past medical and employment history and what she said about the motor vehicle accident of 9 May 2008 and when applying for the DSP in 2008 are likely to be critical to the assessment of damages in this matter.

Pre-Accident History

[10]
At the trial significant time was devoted, understandably, to the plaintiff’s pre-accident employment and medical history.

[11]
The plaintiff’s tax returns from the year ended 30 June (YEJ) 1990 to YEJ 2007 were part of Exhibit 9. She did not file a return in YEJ 2008, the year of the subject accident. She agreed that she did not earn any income in that financial year, either from employment or from any business enterprise of her own.

[12]
A helpful summary of the tax returns was prepared (Exhibit 3). Her work history was primarily in retail, reception work and swim coaching. It is perhaps also important to note that her marriage to the father of her children failed in about 1995, and that a subsequent relationship, which commenced when she moved to Coolum in about 2004, also failed in about 2005.

[13]
Although the tax returns cover a period of some 18 years it is the years closer to the subject incident that are of greatest relevance. Her income from her work in the last 5 years prior to the subject incident can be summarised as follows:

YEJ	Employer	Net Earnings	Annual Net
2003	James Chen Trust	$2682.00	$2682.00
2004	Kholo Medical P/L	$1129.00	$4629.00
2004	Emerge P/L	$3500.00	$4629.00
2005	Sport in Action	$2195.00	$2195.00
2006	Sport in Action	$4490.00	$11307.00
2006	Gone Bonkers	$6817.00	$11307.00
2007	Gone Bonkers	$9713.00	$9713.00

[14]
It was accepted by the plaintiff that she had not worked after ceasing her employment at Gone Bonkers, and that this was probably in December 2006.

[15]
It was not disputed that the plaintiff injured her lower back prior to the subject incident. The records of the Twin Waters Medical Practice (Exhibit 9, Tab 9, pg 4) indicate that on 6 February 2006 she consulted Dr Gonez complaining of back pain after lifting. She had prior consultations on 3 January 2006 and 23 January 2006. No similar complaint was made then so it appears that the incident of lifting resulting in back pain probably occurred very early in February 2006. There is no mention of back pain at consultations on 19, 21 or 28 April 2006 but on 10 May Dr Gonez records:

“Also pain, on the lumbar on and off for three months specially on motion.”

[16]
A CT of the lumbar spine of 10 January 2007 (see Exhibit 9, Tab 5) confirms a disc herniation of both L4/5 and L5/S1.

[17]
Her back pain appeared to progressively worsen throughout 2006. On 27 November 2006, Dr Gonez recorded “recurrent abdominal pain and back pain”. On 4 December 2006, she was admitted to Nambour Hospital by the Queensland Ambulance Service, (Exhibit 9, Tab 3) with pain in her back following an initial injury about 10 months earlier, consistent with the records of Dr Gonez.

[18]
The plaintiff said in evidence this initial injury was from an episode of lifting bamboo fencing and resulted in her ceasing her employment at Gone Bonkers, a discount shop. Perusal of her tax returns indicates that she earned income from Gone Bonkers in both the YEJ 2006 and the YEJ 2007. She was unable in evidence to indicate exactly when in the 2006/07 financial year she ceased work but accepted in cross examination it was probably in December 2006. In the YEJ 2006 she earned income as a swimming coach with Sport in Action. She earned no such income in the YEJ 2007. She said in evidence that swimming coaching was, understandably, a summer occupation. It would therefore seem that in the 2005/2006 summer she worked as swim coach but not in the summer of 2006/2007. She indicated that this was because of her back pain and also due to a personality issue with her employer.

[19]
Perusal of Centrelink records (see Exhibit 9, Tab 13, pp 81 and 83) suggests her last income from Gone Bonkers was on 21 December 2006 and her last income from Sport in Action was on 8 December 2005.

[20]
I conclude that in 2006 the level of her back pain was such as to preclude her from then working as a swim coach, and late in that year also precluded her from continuing her work at Gone Bonkers.

[21]
Thereafter she has been continuously on social security benefits of one form or another.

[22]
In about July 2007 she applied for some form of social security, presumably sickness benefits or a DSP, which required medical assessment. The records relating to that claim are part of Exhibit 9, Tab 13. A report of her treating doctor, Dr Gonez of 26 July 2007, and at this time also signed by the plaintiff, is at pages 32-38 thereof. It refers to two relevant conditions – a lumbar disc herniation and depression. Dr Gonez’s report indicates the back pain was “getting worse”. It said she was “unable to sit or stand for a long time. No (sic) able to bend or lifting (sic) heavy things”.

[23]
In respect of her depression Dr Gonez said it had its onset 3 years ago. He wrote:

“Cognitive function emotional and psychological impairment so ability to focus and concentrate at work are impaired”.

[24]
A job capacity assessment report was undertaken by Anna Austin, an occupational therapist, on 1 August 2007 (see Exhibit 9, Tab 13 pp 25 – 29). She concluded (pg 28) that the plaintiff’s condition was not then stable. Further intervention, including possible surgery or vocational rehabilitation, might have been of assistance. Importantly however she noted that the back pain had been worsening, limiting her range of motion. At times she required high levels of analgesics.

[25]
The job capacity assessment of Ms Austin, was based on face to face contact with the plaintiff and appears to be based largely on the plaintiff’s own report of symptoms. It records:

“The client reports other symptoms including restriction of driving … high levels of analgesics, irritation, frustration at her inability to complete necessary chores, nausea and light headaches, awakening during the night in pain … frightened to have surgery on her spine … however she can no longer tolerate this pain which has affected her appetite … not … able to sit or stand for long on a good day with medications … can stand or sit for approximately 15 minutes but less than this on a bad day … children assist with basic cleaning … and with getting themselves off to school some days … limited her ability to have a social life as the client is frightened to go too far away from home”.

[26]
It does not appear from the medical records that her condition improved at all between then and the subject accident. The records of Twin Waters Medical Practice (Exhibit 9, Tab 9) of 21 May 2007 indicate the plaintiff was “taking alcohol daily and smoking marijuana to release the stress”. She reported she still had headaches on 8 August and on 22 August it was noted she was to see a neurologist on 28 August. She was prescribed Aropax and Panadeine Forte.

[27]
Although not in the GP records, there is a referral letter from Dr Gonez to Dr Richard Kahler, whom I knew to be neurosurgeon, contained within the Centrelink Records (Exhibit 9, Tab 13 pg 34). It refers to her pain being “progressively worse”.

[28]
She attended upon Dr Rawlinson of Twin Waters Medical Practice on 14 September 2007 for “bilateral parasthesias L4/5 some weakness left ankle flexion. Encouraged to consider neuro appointment”. She was prescribed Celebrex and Valium.

[29]
She was seen by another general practitioner (GP) at the practice, Dr Grudenich-Dix on 18 September 2007 and prescribed, inter alia, Aropax and Panadeine Forte. The records note she was “Centrelink exempt until July 2008”, suggesting her application for benefits had been successful, at least for 12 months.

[30]
She then saw Dr Avelino at that same practice on each of 3 October and 4 October 2014 for back pain, resulting in prescriptions for Panadeine Forte. The reason she attended on both days may have been associated with a problem with the prescription. On 19 October 2014 she again saw Dr Avelino who noted she had “not gone to previous referral to Orthopaedics” (presumably a reference to the neurosurgeon Dr Kahler) and that the plaintiff was advised about possible addiction. She was again prescribed Panadeine Forte. The records note she was to be reviewed in a month, for referral to “Ortho” and “advise to take simple Paracetamol or Panadeine”.

[31]
On 30 October 2007, she again saw Dr Rawlinson for an unrelated URTI (I note she has a lifelong history of asthma, and a more recent diagnosis of bronchiectasis). He notes a “long talk re potential for dependency on alcohol/codeine phosphate”.

[32]
On 20 November 2007, Ms Findlay returned to Dr Avelino for the review. She complained she still had left lower leg pain behind her left knee and hand tremors. She said she had stopped taking Panadeine Forte.

[33]
On 6 December 2007, Dr Avelino noted she was still taking Celebrex daily. She was advised to take regular paracetamol, then Celebrex on every other day until completely off it. She was to be reviewed again in 2 months.

[34]
That did not occur. The plaintiff did not refer to that practice. The defendants’ counsel suggests she did not do so because of the pressure being placed on her to avoid addiction to prescription drugs and perhaps alcohol also.

[35]
I note on 16 December 2007, she returned to Dr Vogelpoel at Coolum Beach 7 Day Doctors (Exhibit 9, Tab 1). She indicated to him, having last seen him on 2 June 2005, that she suffered a disc herniation in 2006, was taking Panadeine Forte but was now on Celebrex, Panadol and Valium. She told Dr Vogelpoel that the “doctors won’t allow her to have anymore” but that she was “getting probs with left numbness dead feeling self-medicating with (alcohol)”. It seems he prescribed Panadeine Forte and Valium.

[36]
I note she said in evidence she had Panadeine Forte with her at the Folk festival and took some after the subject incident.

[37]
In my view her returning to see Dr Vogelpoel on 16 December 2007 does strongly suggest she was resistant to the advice being given to her by Dr Avelino and Dr Rawlinson about drug addiction. Perusal of the PBS records (Exhibit 34) confirm she filled four prescriptions for codeine phosphate (Panadeine Forte) provided by the doctors at the Twin Waters Medical Practice from 11 August to 15 December 2007 to obtain 80 tablets (and none after 19 October) but filled a prescription from Dr Vogelpoel for 60 tablets on 16 December 2007, and for a further 60 tablets on 13 January 2008 pursuant to a script provided on 16 December 2007.

[38]
It is also important to consider the records of the plaintiff relating to her psychological history for the period prior to the Woodford incident.

[39]
She said in evidence she had seen a family counsellor, Clive Duffy prior to and after separation from her husband in about 1996 and subsequently had been prescribed medication by her then GP (Dr Vogelpoel of Coolum Beach 7 Day Doctors) after the breakup of another significant relationship in about 2005. She said she had never been referred to a psychiatrist before the subject incident and had no recollection of ever seeing a psychologist or a psychiatrist.

[40]
A job assessment report prepared in relation to the plaintiff’s application for social security in December 2008 (almost a year after the subject incident), indicates that the plaintiff reported a “long history of depression” with onset of symptoms in “early childhood” and that she had been “in therapy on and off since”.

[41]
The records of the Twin Waters Medical Practice (Exhibit 8, Tab 9) indicate that at an appointment on 29 September 2005 she told a Dr Lindeman of a history of recurrent depression with two prior episodes. She indicated to the doctor that there was a strong family history of psychiatric disorder, referring to both her mother and sister. The two prior episodes were, as she said in evidence before me, on the breakup of her marriage 10 years earlier and on the break-up of another relationship in 2006. At that time in September 2005 she spoke of “depressed mood, loss of enjoyment in usual activities, sleep problems, poor concentration, feelings of anxiety, stress and agitation”.

[42]
On 3 January 2005, Dr Gonez had also noted that she was clinically better though still depressed and with insomnia. On 23 January he noted that her sleep had returned to normal but noted depressed mood, low self-esteem, irrational fear, panic attacks and compulsive behaviour. The medical record indicates that he gave her counselling and referred her to a psychologist for further counselling. She was prescribed Aropax.

[43]
It seems she also had a long history of prescribed anti-depressant medication referred to in the job assessment report of Centrelink of December 2008 which noted “on anti-depressant medication for many years”.

[44]
Details of consultations the plaintiff had with a psychologist at Total Health and Education Group are contained at Tab 4 of Exhibit 9. I have already noted she had seen a family counsellor, Clive Duffy at that practice following the breakdown of her marriage in about 1996. She, however, also attended upon a psychologist there on approximately 42 occasions from August 2000 up to April 2003 before she moved to Coolum to begin her live in relationship with her new partner, Steve.

[45]
The records speak of feelings of desolation and loneliness. They note (on 28.5.01) her “not coping, depression and minimally functional”. On 19 June 2001 there is reference to increased depression. In August that year she felt “depression overwhelming … again”. She was said to be much improved in September.

[46]
In November 2002 she was “worsening” and felt “immobilised”. The next month notes “progress in number of areas e.g. self-care”.

[47]
Read in conjunction with the report of Ms Austin referred to in [25] hereof this history suggests the plaintiff was significantly affected by a long history of depression and by back pain, prior to the Woodford incident.

Woodford Incident

[48]
The plaintiff said in evidence that following the incident she spent almost the whole of New Year’s Day sleeping in her tent at Woodford. The next day she said she was still incapacitated. Her friend who was with her at Woodford, Shelley Emia, drove her home. The plaintiff said she went to bed and slept for 2 days. This version of events was generally supported by the evidence of her daughter and son.

[49]
Each of the plaintiff and her children gave evidence that thereafter she has been very significantly incapacitated. They said that her children had to do necessary housework, cook meals and care for the plaintiff. They described the plaintiff in terms that suggested she was grossly unwell. That too is the description given by others, Shelley Emia, Roxanne Durkin and Aishah Ali who are friends of the plaintiff but also by doctors and others who have since given her treatment and assistance.

[50]
Before me the plaintiff’s presentation when giving evidence was of a person suffering greatly. She appeared extremely vague and listless and was at times able to recall only very little of her life after 1 January 2008. At other times she became tearful and agitated. She said she had very little recall of events after being struck on the head at Woodford or for a significant period thereafter. She described a need for assistance from others with almost all activities of daily living. She described “brain pain” and “brain fog” and said she felt as if she was not part of the world and of not being able to make sense of the world. She said her brain was “not working” and that it “wanted to be unconscious a lot”. She spoke of seeing the world through a veil as though she was on the other side and not part of the world. She indicated she had been in such a position, almost unchanged, for the whole of the time since the incident on the early morning of 1 January 2008.

[51]
It is clear, if her presentation was genuine, that she would be entirely unable to cope with work and would have no prospect of employment. She said she required assistance of others in helping her plan for what she described as complex tasks. An example that she gave of such a task was making a cup of coffee. She said she was unable to follow the steps necessary to make one, but has now been able to learn how to do so. A social worker, Mr Costoulas, said he taught her how to make one. His first contact with her was not till about the beginning of 2013. She described being unable to cook, apparently because of her habit of leaving the stove on and because of the complexity of the task. She said she had flooded the house and described burning herself when she had cooked. I note there appears to be no occasion when she has ever consulted a doctor for such burns, so far as I can see.

[52]
It is clear from her evidence the plaintiff believes this level of incapacity is because she had suffered a significant brain injury. I shall refer to this later, but note no doctor believes that to be true. Many others with whom she interacts, both friends and carers, appear to accept that she has. In addition to qualifying for the DSP in 2007 the plaintiff has very significant assistance provided by Anglicare. Initially her son, and, when he went to university in Melbourne, her next door neighbour Roxanne Durkin have been her designated carers. Anglicare provides a social worker, physiotherapist and occupational therapist and also a regular cleaner. She also has, or has had, a mental health worker from Auscare (Matt) and for a time had the assistance of a worker from the Acquired Brain Injury Outreach Service.

[53]
She describes very significant pain requiring significant medication. Since November 2014 she has been regularly seeing a psychiatrist Dr Andrew Khoo. She was earlier referred on 9 May 2013 by her GP under the Better Access Medicare program for psychological counselling to a psychologist, Bronwyn Hartnett, who she was seeing regularly since that time.

[54]
The question which arises is whether the plaintiff in fact suffers from the gross disabilities she describes, and, if so whether the Woodford incident was the cause of those problems.

[55]
To a very significant extent the answer to at least the second of those issues can be determined by a consideration of the plaintiff’s medical and social security records.

Post-Accident History

[56]
The plaintiff saw a number of GP’s in the year or so following the subject accident. Their records are of critical importance.

[57]
The plaintiff’s first medical consultation after the subject incident was with Dr Ali. His records are in the medical record section of the plaintiff’s trial bundle (Exhibit 8). He first saw her on 4 January 2008, three days post-accident. He notes that in the incident there was no loss of consciousness but that the plaintiff complained of being dazed. She told him she saw paramedics after the incident (this is a subject of some dispute that is unnecessary to resolve). She said she was advised by the paramedics to rest unless she had signs of nausea or headache. She indicated to Dr Ali that she then slept for 48 hours (a matter inconsistent with the evidence of Mr Prendeville to whom I shall later refer). She indicated to Dr Ali that she did not get up during this time, did not have a carer to check on her, and remembers little, if anything, of that time. She indicated that when she came to, 48 hours later, she was still dazed, again saw paramedics at the festival and was then taken to a doctor at the folk festival who refused to see her because she did not have money for his fee. She went home on 2 January (itself only the day after the incident) and slept for a further 24 hours. She said she was drowsy and unsteady on her feet. This history of her condition at home is, as I have said, generally supported by the evidence of her children.

[58]
Dr Ali notes that she presented with unsteadiness, nausea, headaches and poor hand-eye coordination and with difficulty filling in forms. On examination he noted bruising of the medial side of her left eye, a mild tenderness across her nose, mild tenderness in the medial upper periorbital margin, tender swelling at the left frontal scalp but a full range of movement of her cervical spine. Photos of the plaintiff’s face (part of Exhibit 8) confirm the bruising noted by Dr Ali. In so far as Mr Prendeville said the injuries he observed when he saw her at the festival on both January 1 and 2, I do not accept his evidence. There is no suggestion however that the blow caused any significant laceration. There seems to have been no loss of blood. Dr Ali also said that she had tender left cervical paravertebrals and tender thoracic paravertebrals. Her reflexes were normal. He referred her for a CT scan which, as I have said, was normal. He suggested simple analgesia and review if not settled in the next 48 hours.

[59]
She returned to Dr Ali on 7 January 2008. She described feeling a little better, less lethargic and less stressed but still had poor concentration, intermittent blurry vision and nausea but no headache. After examining her he indicated the plan was to continue the present treatment involving simple analgesia for her head and neck. She was prescribed Aropax. She then did not see Dr Ali again until 22 January 2008 but the PBS records (Exhibit 34) show she filled a script of 16 December 2007 for Panadeine Forte at Coolum Village Pharmacy on 13 January 2008. On 22 January 2008 she presented with some difficulty in concentration, short term memory, ongoing headaches, pain in the left side of her face and head and discomfort driving. She must therefore have been driving by then. On examination she still had a full range of movement of her cervical spine and a small resolving haematoma on her left frontal/medial upper periorbital margin.

[60]
On 1 February 2008, she told Dr Ali she was still troubled with insomnia, bad dreams, headaches, usually in the afternoon, and of not feeling “quite right”. He indicated she might benefit from psychological assessment. On 11 February 2008, she describes being a little better with less “brain fog” but that her neck was playing up and she still had some flashes in her left eye and memory impairment. On 4 March 2008, Dr Ali noted some improvement but still some memory issues, poor and disturbed sleep, intermittent headaches and some difficulty reading text due to blurriness.

[61]
She did not thereafter see Dr Ali. She indicated to me that that she believed he may have moved as he used to do regular work as a locum. Whether this is in fact so and when he did so is unknown, but I note Aishah Ali, his ex-wife, also said he had moved, but did not say when. I accept he may well have moved after 4 March 2008.

[62]
During the time she was seeing Dr Ali the plaintiff also saw another GP at Coolum Beach 7 Day Doctors. The records of that practice are at Tab 1 of the defendants’ trial bundle, Exhibit 9. She last attended that practice, prior to the subject incident, on 16 December 2007 where she saw Dr Vogelpoel. I have referred to that attendance already, to the circumstances in which she left her previous GP to go there, and of the fact he gave her a script and a repeat, for 60 tablets of Panadeine Forte at that time. She again saw Dr Vogelpoel on 5 February 2008 whilst still seeing Dr Ali. She disclosed the Woodford incident saying that she had suffered concussion and was seeing a doctor at Kawana (obviously Dr Ali). She indicated to Dr Vogelpoel that the CT obtained after the incident showed bruising of the membranes. I do not know what she was referring to. The scan showed no abnormality whatsoever. She also said she needed to see a psychologist and neurologist but that her back was doing OK and that she had cut right back on pain management. No medication or other treatment appears to have been given, but as I have noted, she obtained 60 tablets of Panadeine Forte on 13 January 2008.

[63]
On 19 February 2008, she saw a Dr Goss at that practice. He noted the history of a herniated L5/S1 disc but of her symptoms being generally well controlled but exacerbated recently (presumably a reference to the incident of 1 January). She referred to numbness in the left leg. There is no mention in that consultation, other than to the recent exacerbation, of the incident of January 2008. She obtained from Dr Goss a further script for Panadeine Forte and filled it that day suggesting her comment to Dr Vogelpoel about cutting right back was questionable. She again saw Dr Goss on 2 March 2008 for a discussion of the results of a CT of her lumbar sacral spine. There is no mention of any consequences of the Woodford incident. Two days later, on 4 March 2008, she used an earlier script of Dr Ali to obtain a further 20 Panadeine Forte. On 2 April 2008, she saw another GP, Dr Tufuga, in respect of a facial rash. There is no reference to any consequences of the incident of 1 January. On 7 April 2008, she obtained a further 60 Panadeine Forte. On 11 April 2008, she saw another GP at that same practice, a Dr Anderson, again in respect of the facial rash. He noted that the plaintiff said that the Valium had helped her back, but again there is no mention of any problems with her neck or any consequences of the blow to her head. She mentioned having abdominal cramps and sloppy motions for a few weeks and there was discussion about the possibility of her having picked up giardia as she “was in bush swimming in waterfall”. This is the last consultation at that practice and strongly suggests she had very significantly improved from any consequences of the Woodford incident.

[64]
It seems to me that an important feature of those consultations is that she saw four different doctors at the Coolum Beach 7 Day Doctors practice, and had also seen Dr Ali, but none of the doctors thought that her condition was so acute that she needed referral to a specialist for further treatment for or assessment of any effects of the incident on 1 January. If her condition was as she described in evidence before me I have no doubt that all – or certainly some – of the doctors would have been significantly concerned about her and have made such a referral. If she presented as she did before me when giving evidence I am also confident that any doctor would have noted that in their records. The fact that Dr Anderson, Dr Tufaga, Dr Goss and Dr Vogelpoel did not do so strongly indicates to me that her presentation was nothing like she has described in evidence before me. Her going swimming in the bush under a waterfall, as recorded by Dr Anderson, is entirely inconsistent with her condition at that time as described in evidence before me. So too, was the fact that she had resumed driving, albeit with some discomfort, as early as 22 January 2008.

[65]
On 9 May 2008 the plaintiff was driving her motor vehicle when it was struck in the rear by another vehicle. On 13 May she attended yet another general medical practice, Suncoast Medical Centre. She saw Dr Karen Sander for the first time.

[66]
She told Dr Sander of her history of disc herniation of L4/5 and L5/S1 with sciatica “on and off”. She said the car accident had aggravated her back pain. She was prescribed Diazepam and Panadeine Forte. She made no mention of any neck pain or made no reference to the Woodford incident or any consequences of that incident. She did however give a history of asthma.

[67]
She next saw Dr Sander on 3 June. She complained of “severe migraine like/post-concussion headache last week” and of “back and neck pain + + +” but again she did not mention the Woodford incident or the debilitating effect of it as she and others described in evidence.

[68]
On 12 June she saw Dr Sander but again there was no mention of the Woodford incident. She described having much improved mood and motivation but of her neck being very stiff but more manageable and of her headaches being better with Sandomigran. The records note the “reason for visit” was “sciatica – L5/S1, disc prolapse and whiplash”. There is once more no mention whatsoever of the Woodford incident or of any attribution of symptoms to that incident.

[69]
On 30 June she saw Dr Sander for knee pain after an episode of it giving way. Again there is a reference to headaches but no mention at all of it being a consequence of the Woodford incident. On 7 August Dr Sander notes she had been seeing an osteopath (and the evidence established that this was Peter Hoddle) “with CTP”, a reference no doubt to the accident of 9 May. She noted the plaintiff had been “doing some babysitting”, inconsistent in my opinion with the level of the plaintiff’s functioning as described by her in evidence. The notes also record “neck pain, headaches, back pain improving slowly”. Once again there is no mention made of the Woodford incident or of any suggestion of the reported symptoms resulting from it.

[70]
Thus, after seeing Dr Sander for the first time on 13 May she saw her on five occasions over a period of about three months and made no reference whatsoever to the incident at Woodford or to any of the debilitating life changing consequences which she described in evidence to me. Dr Sander noted no such debilitating condition. I note also her use of Panadeine Forte declined very significantly after she started attending Dr Sander’s practice. It is in my assessment impossible to reconcile the fact that she has not told Dr Sander of the Woodford incident with the description that the plaintiff gave of her symptoms, and also that given of her friends and children about her lifestyle in the immediate aftermath of the Woodford incident.

[71]
On 2 September the plaintiff saw another GP, Dr de Jager at the same practice. He notes she had a “panic attack” the previous day. For the very first time to this practice the plaintiff mentioned she had “concussion January”. No other history was recorded and the notes record “I think it is a red herring”. It was noted she was seeing a Centrelink psychologist. I shall refer to this shortly. Other than the reference to “panic attack” no history of her then alleged 8 month history of debilitating symptoms was recorded.

[72]
She saw Dr de Jager again on 22 September and 10 October 2008. Her head, neck and headaches were said to be worse. No mention was made of the Woodford incident on either of those consultations. On 29 October Dr de Jager noted symptoms of severe back pain apparently associated with “sitting and working wrong position” and of “emotional + + +”. The reason for the visit is said to be L5/S1 prolapse. No mention was made of the Woodford incident.

[73]
On 4 November she saw Dr Mason Stephenson, another GP at the same practice. He noted chronic pain and bronchiectasis and prescribed Aropax and morphine patch. She was “much better” when he saw her on 18 November. He continued to prescribe morphine patches on that date and also on 15 December 2008. She did not mention Woodford.

[74]
That history of consultations must also be seen against the background of her receipt of social security. I have referred already to her application in about July 2007 and the fact that it had been approved for a period of 12 months. In late 2008 she sought a DSP. A medical report of Dr Stephenson of 18 November 2008 was signed and submitted by the plaintiff to Centrelink (see Exhibit 9, Tab 13, pp 97-104). Since Dr Stephenson had only commenced seeing her on 4 November his report must largely have been based on her report of symptoms to him on that date and when he next saw her on 18 November, and perusal of the medical records of the practice.

[75]
He refers in his report to three medical conditions supporting her claim. What was said to have “most impact” was described as “chronic lumbar backache – L5/S1 disc degeneration with L sciatica” dating from February 2006. Her lower back pain was described as constant with left sciatica and permanent left leg numbness. She was described by Dr Stephenson as having limited ability to sit or walk or to lift or bend.

[76]
Her second condition was said to be bronchiectasis and asthma and her third was said to be “major depression”. There is no reference to the Woodford incident or to any effects in Dr Stephenson’s report.

[77]
Of even greater importance are two job capacity assessment reports completed in 2008. The first is of a Karla Milner of Maroochydore Centrelink of 8 August 2008 (see Exhibit 9, Tab 13, pp 19 ff). Ms Milner refers to the plaintiff’s spinal injury and depression. She refers to the medical certificate of Dr Sander of 7 August 2008 (Exhibit 9, Tab 13, pg 24) which lists a diagnosis of “motor vehicle accident back injury” and “depression”. Ms Milner sets out that the plaintiff indicated she was suffering chronic spinal pain “following repetitive heavy lifting in her previous employment”. She says in relation to the reported depression:

“Elizabeth reported she had been suffering from depression as a result of her constant pain and the restrictions her condition causes. Her symptoms include low mood, emotional ability, social avoidance, disturbed sleep, loss of motivation and irritability. She stated she has commenced a course of antidepressant medication. Elizabeth reported being motivated to undertake counselling.”

The only reported pain elsewhere in the report is the plaintiff’s low back pain.

[78]
Nowhere is it recorded that the plaintiff mentioned the Woodford incident or what she now says are the consequences of it.

[79]
A further job capacity report was completed by psychologist, Lisa Gordon (Exhibit 9, Tab 13, pp 5 ff). The assessment, like that of Ms Milner, was described as “face to face”. Ms Gordon’s report is dated 22 December. Ms Gordon’s report says:

“Major depression with panic attacks – Despite very long-term treatment Ms Findlay continues to experience regular symptomology which can be easily exacerbated by stress due to the constant focus she has on her chronic pain. The condition has been fully treated and stabilised, but goes through regular cycles causing greater incapacity than usual. Ms Findlay reported having particularly poor concentration and memory and is currently unable to read as she normally might. She can also experience panic attacks and low mood which leads to some social withdrawal.

Chronic neck and lumbar pain – Ms Findlay has participated in extensive rehabilitation work. However her condition further deteriorated in 2008 due to two separate injuries. She is currently experiencing chronic pain and is using morphine patches to control this. Despite her strong medications Ms Findlay reports a constant awareness of pain and experiences difficulties sitting comfortably for more than 10 to 15 minutes, or standing for more than five minutes. She reports a loss of at least ¾ her normal range of movement.”

[80]
Thus, in all of the recorded information over the 12 month period from early May 2008 – in her doctor’s records and in the Centrelink file – the only reference I have been able to find in relation to the Woodford incident is the single reference in Dr de Jager’s note of concussion in January 2008 during a consultation of 2 September 2008 and, possibly, the reference in Ms Gordon’s report to “two separate injuries” in 2008. This may of course not have been a reference to Woodford, but to some other unknown event, but certainly could have been about Woodford.

[81]
In my view one can only conclude that the plaintiff herself did not, after about March/April 2008, ascribe any significance to the incident of 1 January. Her failure to have mentioned it is otherwise inexplicable.

[82]
In evidence she told me she constantly told doctors and the Centrelink staff who conducted the assessment reports of the dramatic and debilitating effects of the Woodford incident. She said it was their decision not to record it. I do not accept she did so. Her answer was in my view deliberately dishonest.

[83]
She said she also complained about the incident to a psychologist, Ivan Chandler, whom she saw regularly between 2 March and 14 April 2008. She saw him again for two consultations in June 2009.

[84]
On the first consultation of 2 March 2008 she described “head/neck/shoulder trauma from falling light” and of suffering pain, headaches, concentration, sleeping disturbance and of other psychological disturbances. A transcript of his records was prepared and comprised Exhibit 28 before me. In subsequent consultations he records:

Date Comments

10.03.2008 Relaxation training homebased issues re: children’s education and difficulty with school attitude.

12.03.2008 Eye movement desensitisation and reintegration (EMDR) and recall aspects of event. 8/3 – 9/3.

14.03.2008 EMDR - 8/4 reported significant problems with pain and sleep.

19.03.2008 EMDR 8/3 – 7/3.

20.03.2008 Further issues regarding difficulties with school issues and also conflict issues with relations.

27.03.2008 Relaxation training – difficulty relaxing maintain concentration due to postural pain. (appears to keep jittering around trying to become comfortable) tears.

04.04.2008 Tearful over issues of grief and loss romantically lonely difficulty at retail job. Friendships being strained, inability to be the life of the party.

10.04.2008 EMDR 4/4 social and parenting difficulties concerned regarding future employment prospects negotiating situation.

[85]
In my view those records also do not support the plaintiff’s view that on 1 January 2008 she had a life changing accident with serious symptoms continuously thereafter. Although she certainly complained of the consequences of the accident on 2 March 2008 it seems that thereafter other social issues were of primary importance. In any case I note that all of these consultations were prior to the motor vehicle accident of 9 May 2008.

[86]
She then failed to attend an appointment with Mr Chandler on 17 April 2008 and despite attempts by him, he was unable to contact her. Thus, from as early as March 2008, well prior to the motor vehicle accident the plaintiff’s focus appears to have shifted to parenting issues, postural pain (very probably related to her lower back in view of the records of Coolum Beach 7 Day Doctors earlier referred to), loneliness and of not having a romantic attachment. The impairment she described to me was not mentioned, at least not mentioned after 19 March 2008.

[87]
I will return then to her GP consultations. On each of 18 December 2008 and 5, 6, 9 and 20 January, 9, 13 and 25 February, 10 March and 4 April 2009 she saw Dr Stephenson. On no occasion did she mention the Woodford incident or complain of anything that might be said to be associated with that incident. She did not mention the debilitating consequences of the Woodford incident described to me.

[88]
After the plaintiff saw Dr Stephenson on the 14 April 2009 she saw Dr Scott Campbell, a neurosurgeon, on 20 April 2009 for a medical legal consultation in respect of this matter which had been arranged by her solicitors. Dr Campbell’s report is before me.

[89]
On Friday 24 April 2009, four days later, the plaintiff attended upon her GP, Dr Stephenson once more. For the very first time she told him of the Woodford incident. His notes record:

“Concern re memory and concentration impairment, post-accident on Jan 1 2008 (head injury). Neuropsychological assessment Monday for legal purposes- await this report.”

[90]
It is clear that the neuropsychological report must have in fact been that of the neurosurgeon Dr Campbell.

[91]
At the next consultation on 8 May she reported to Dr Stephenson that she had chronic migrainous headaches since the head injury in January. She said she had never had them before and was concerned about her poor memory and concentration.

[92]
In circumstances where the plaintiff made practically no mention of the Woodford incident from April 2008 to April 2009 it is difficult to accept this reporting of concern about the matter was motivated by any real belief the accident was the cause of her incapacities. I am sure that the fact that she consulted Dr Campbell just prior to the consultation of 24 April, focused her mind on the Woodford incident and proceedings arising from it, and it was this, rather than the reality of her condition, which then caused her to report the Woodford incident as being significant.

Plaintiff’s Credit

[93]
Having regard to the totality of the medical records I do not accept the plaintiff’s evidence about the effects of the incident. I find that the plaintiff was an emotionally vulnerable person who had reported significantly disabling symptoms both physical and emotional to her doctors right up to the time she went to Woodford. I accept that the blow to her head had a significant but temporary effect on her. The blow did not cause any cut on her head. She did not lose consciousness. I accept that for some days, initially at Woodford and then when she returned home, she spent significant periods in bed. My strong inclination is to think that this was a psychological consequence of the blow to her head which was, as I have said, not sufficient to cut her or render her unconscious. Ultimately, whether her symptoms were almost entirely psychological, as I very strongly suspect, or whether she had a concussive injury causing temporary symptoms does not ultimately matter.

[94]
I find that by the time of the motor vehicle accident on 9 May 2008 and the subsequent visits to Dr Sander and others at her practice, any symptoms that she suffered were due to her pre-existing psychological and physical vulnerabilities and to the aggravating effects of the motor vehicle accident. The failure to refer to the Woodford incident or its effects to so many just does not make sense, a point recognised even by the plaintiff who suggested she had told both doctors and Centrelink staff, but they chose not to record it. That suggestion was fanciful as I have said.

[95]
The effects of the Woodford incident had, I am sure, entirely or almost entirely passed, by the time of the motor vehicle accident. Consequentially any claim for damages must be limited to the period of no more than four months from 1 January to 9 May 2008 during which she was not, in any case, planning or able to work because of her long standing back problems and pre-existing depression.

[96]
The conclusions I have drawn are supported by my assessment of the various medico-legal reports and evidence about them given before me. It is also supported by other evidence especially the content of the cross-examination of the plaintiff. In my view that conclusion is not overcome by evidence of lay witnesses and others called by the plaintiff. Many of them speak about her current condition, but cannot say anything about the cause of it. I also find that the evidence of lay witnesses about her condition at the time – her children, Ms Ali and Ms Emia was unpersuasive. I shall return to them later and explain why.

Medical Evidence – Physical Injuries

[97]
The plaintiff has seen Dr Scott Campbell and Dr Peter Lucas both neurosurgeons, Dr Noel Saines a neurologist, Debbie Anderson a neuropsychologist and Dr Boys an orthopaedic surgeon. Dr Lucas’ report of 15 November 2010 was admitted by consent and the others all gave evidence before me.

[98]
Dr Lucas records a history of the plaintiff losing consciousness and thereafter having what he described as a litany of symptoms.

[99]
He says however that she “certainly does not give the impression of being particularly depressed presently”. He says her situation was one of chronic pain and significant psychological disturbance. He said that, rather than assessment, such as by an MRI and nerve conduction tests, he thought “treatment by way of a psychologist or psychiatrist may well be in her best interest.”

[100]
It is clear, in my view, that he did not think the plaintiff had brain damage. I note also that whilst she complained to him of chronic and severe pain and headaches and of social isolation and disengagement, she did not describe to him the level of confusion or inability to complete even simple tasks such as making a cup of coffee or simple cooking, that she complained of to me.

[101]
In support of her claim the plaintiff obtained reports from Dr Scott Campbell. He has provided two reports of 20 April 2009 and 24 March 2016.

[102]
At the time of the first report he had only the plaintiff’s own self report of symptoms and some records of a GP Dr Ali together with a letter of instruction. Dr Campbell noted her complaints of neck pain and stiffness, of chronic headaches and of significant effects of head injury. He noted she gave a history of work as a shop assistant at the Woodford Folk Festival and that she proposed to start a jewellery business. He said that her initial attempts to return to work after the incident indicated she was unable to cope. She acknowledged to him a history of both asthma and lumbosacral distortion but made no mention of any psychiatric problems interfering with her life. Nor did she tell him of the motor vehicle accident of May 2008, a point made clear by the file note of a conference with the defendants’ lawyers (See Exhibit 17, pg 1, para 2).

[103]
Dr Campbell’s initial opinion was that her neck pain, headaches and reduction in memory, concentration and a range of cognitive features and spatial awareness were consistent with the injuries suffered. He assessed a 5% whole person impairment due to her neck injury, which he said was likely to be permanent. He assessed a further 3% whole person impairment related to her headaches and a 2% whole person impairment for what he described as her post-concussion symptoms. In all, therefore he assessed her as suffering a 10% whole person impairment. He said his view was that she would be unable to work as a shop assistant or establish a jewellery business at that time due to neck pains, headaches and post-concussion symptoms.

[104]
At the time of his subsequent report in 2016 he was provided with significant additional information about the plaintiff’s history. He said that on examination she complained of symptoms unchanged from those in April 2009. Dr Campbell noted that perusal of her past history revealed;

(a)
Alcohol and marijuana use noted in May 2007 including advice on addiction in October 2007 for alcohol dependency.

(b)
The history of her application for DSP related to low back pain and depression in August 2007.

(c)
A history of significant problems in July 2007 due to her lumbar cervical protrusion including symptom’s associated with poor concentration, inability to face life challenges, poor focus, reduced cognition and psychological impairment.

(d)
Development of neck symptoms requiring chiropractic treatment in both March and May 2006.

[105]
Dr Campbell said she was tearful for most of the interview. Examination was generally unchanged from that in April 2009. On this occasion he assessed her as having a 7% whole person impairment, comprising 4% due to the injury to her neck and 3% due to headaches. He attributed 1/5^th of an overall 5% whole person impairment as due to neck problems from the motor vehicle accident in May 2008 but said that the plaintiff herself was unable to advise how much or for how long this accident had aggravated her condition. In oral evidence he agreed his apportionment was subjective, and depended on findings I might make as to level of symptoms arising from the subject incident.

[106]
Dr Campbell also said that he now found the 2% whole person impairment due to post-concussional syndrome appeared unrelated to the subject incident since the symptoms of it are referred to in notes of her GP of July 2007. The file note of a conference of 24 March 2016, between he and the defendants’ solicitors, also makes clear Dr Campbell did not think she had any organic brain injury (Exhibit 17, pg 3, para 12).

[107]
Perusal of Dr Campbell’s report does not suggest however that he was provided with or perused details of her consultations with Suncoast Medical Centre (Drs Sander, de Jager and Stephenson) after July 2008 or with the records of Centrelink related to her application for DSP in the second half of 2008. His report is premised on his acceptance of her having ongoing neck pain and post traumatic headaches as a result of the Woodford incident. I have said already that I do not accept that is so.

[108]
Dr Saines, a neurologist, provided reports to the defendants’ lawyers in December 2009 and January 2016. In both he assessed her as having a 0% whole person impairment for both her head injury and cervical injury suffered in the subject accident. In his initial report he described the head injury as “mild and concessional (sic) at most without evidence of any significant cerebral trauma.” He said she had no organic bone disease and that symptoms were “psychogenetic in nature.”

[109]
In 2016 his opinion was essentially unchanged despite her reporting no improvement in her condition.

[110]
His assessment is consistent with my own findings that the plaintiff did not have any symptoms of the incident after about April 2008. I accept his evidence and opinions.

[111]
The complaint and saw Dr Debbie Anderson in May 2014 and she provided a report of 27 August of that year. I do not propose to go through all the events of the consultation. It was to some extent disrupted by the plaintiff’s sister who was agitated that Dr Anderson, quite properly, insisted the sister remain outside while she conducted neuropsychological testing with the plaintiff.

[112]
Ultimately Dr Anderson discontinued the consultation, not because of the sister’s extraordinary behaviour, but because she concluded on the basis of the plaintiff’s performance of validity tests that the plaintiff was not seriously attempting to complete the testing procedures to the best of her ability. In those circumstances Dr Anderson concluded testing would not provide a valid and reliable measure of cognitive function and so she terminated the interview.

[113]
She did note that “the level of dysfunction Mr Findlay has reported is well out of proportion with what would be expected from a concussion injury”. She said her reported dysfunction “far exceeds” what would be expected. She said if someone was profoundly depressed or profoundly brain damaged one would expect consistent poor performance but the plaintiff’s performance was inconsistent.

[114]
Consistent with my observation of the plaintiff when giving evidence and with the history of examination by GP’s and Centrelink staff to which I have referred at length, I have no doubt that the plaintiff was feigning the extent of her capacity when she saw Dr Anderson. Such findings also militate against accepting the opinions of Dr Campbell about the extent of the plaintiff’s disability. I accept Dr Anderson’s observations and evidence which is consistent with my own view of the plaintiff’s injuries.

[115]
Necessarily medical assessments depend to a very significant extent on the honesty and reliability of a patient. That the plaintiff was, in my view, neither honest nor reliable necessarily undermines the value of Dr Campbell’s assessment and those of psychologists and psychiatrists on whom she relies and to whom I will shortly refer. That is not a criticism of Dr Campbell in any way or indeed of the psychologists or psychiatrists. It is based on a view I have taken of the plaintiff because of my observations of her when giving evidence over three days and from a more detailed consideration of her medical history contained in contemporaneous records than it was reasonable to expect the doctors to have undertaken.

[116]
Dr Boys provided a report to CTP insurer in the motor vehicle claim. He examined the plaintiff on 15 May 2009. He observed a full range of movement of her cervical spine with no muscle spasm. She told Dr Boys, who was as I have said seeing her in relation to the motor vehicle accident that “after Woodford I was always exercising” (entirely inconsistent with her evidence before me) but did say she regularly visited the osteopath and remedial therapist. She told Dr Boys that her activity levels had diminished after the motor vehicle accident, compared to the level immediately before. Perusal of his report highlights, I think, the unreliability of the plaintiff’s evidence.

Psychiatric Evidence

[117]
The plaintiff also obtained a psychiatric assessment from Dr Mungomery. He provided three reports, on the 22 September 2009, the 6 April 2011 and the 21 March 2016. She has since November 2014 been regularly seeing another psychiatrist Dr Khoo. He has provided a number of reports. The defendants have obtained reports from Dr Chalk.

[118]
Like Dr Campbell, the initial report of Dr Mungomery was based largely on the plaintiff’s self-report, though he did have some GP records of Kawana Waters Medical Centre and Suncoast Medical Centre.

[119]
He noted in his first report that she worked as a swim coach 30 hours per week and was also studying as a life coach 6 to 8 hours per week prior to when she injured her L4/5 disc lifting a bamboo fence. He says this was in December 2007 but it is clear from other evidence this was in 2006. I am satisfied this is a typographical error, and not due to the plaintiff’s error in her reporting of it to Dr Mungomery.

[120]
He also reports that prior to January 2008 she was “working with a friend making and selling jewellery in local markets up to 10 hours a week with plans to start a web based business”.

[121]
In that report Dr Mungomery notes that the plaintiff had counselling to adjust from symptoms of depression between 1996 and about 2001, related to her marriage breakup, and later a further period of counselling for six months at the end of another relationship. He says however, that she said she had not had the need for any counselling or treatment for psychological injuries in the 12 months prior to January 2008. He noted a reduction of her alcohol use since the injury and no use of marijuana for a period of about 12 months. He, at that time, diagnosed her with a major depressive disorder of moderate severity due to the subject incident. He said it appeared that any pre-existing depression “was in a state of remission and not resulting in significant psychiatric impairment prior to… January 2008.” He assessed a 7% whole person impairment for the psychological condition related to the subject incident.

[122]
In his report of April 2011 he noted she “denies (alcohol) usage in the last six weeks compared to previous increased intake, possibly consistent with binge pattern drinking” and cannabis use “every one-two weeks”.

[123]
He noted also her significant prescribed medication usage and said that her “problems with ongoing impairment in concentration and memory and sedation which have been attributed to her current psychiatric and neurological conditions may also be due to her current level of narcotic, benzodiazepine and cannabis usage”. He assessed a 6% psychiatric impairment not significantly different from his assessment in 2009.

[124]
Dr Mungomery’s most recent report was just prior to trial. He was provided with a vast array of medical reports, certificates and investigations to inform that opinion. He has also provided a file note of a conference with the plaintiff’s lawyers of 14 April 2016.

[125]
He noted in this report that the plaintiff had seen a psychologist Bronwyn Hartnett, on a 2-4 weekly bases for the last three years. He noted an increase level of psychiatric symptomology. He also noted that over the last two years her alcohol intake had increased to one bottle of wine per night until recently when she started on Seroquel and had then “significantly reduced” her intake. He also noted she smoked cannabis until recently diagnosed with a chronic lung condition, bronchiectasis, but now uses alternative cannabis products that have active cannabinoids for pain relief.

[126]
He referred to the records of Twin Waters Medical Practice including;

Presentation on 29 September 2005 with a history of recurrent depression and a strong family history of depression.
Presentation for anxiety and depression on 21 May 2007 when using alcohol daily and smoking marijuana to release the stress.
Presentation on 6 August 2007 for lower back pain over 6 months progressively getting worse and interfering with daily activities.
Presentation on 30 October 2007 for “long talk regarding potential for dependency on alcohol and codeine phosphate. Needs referral to psychologist for ongoing counselling”.

[127]
Dr Mungomery concludes at [52]:

“Additional collateral information provided since our last review in 2011 suggests Ms Findlay has had problems with recurrent episodes of low mood and anxiety at various times during her life when exposed to intercurrent life adversity, likely consistent with a diagnosis of a Persistent Depressive Disorder (Dysthymia). A history of alcohol and cannabis abuse is also noted. She was noted to have been on sickness benefit payments at the time of the incident January 2008 which she said was due to a back injury she suffered in 2007. She did not report any associated psychological issues contributing to her inability to work at this time although note in the months prior to the incident of January 2008 she was prescribed antidepressant Aropax and her GP recommended she would benefit from counselling.”

[128]
He continued at [54]:

“Ms Findlay’s initial psychological difficulties following the incident of 1 January 2008 appears to have been due to a combination of her fear that she could have been seriously injured as a result of the incident, soft tissue injuries to her cervical spine and symptoms of a mild head injury/concussion which have caused an aggravation of her pre-existing psychiatric condition, consistent with a Major Depressive Disorder. Ms Findlay’s subsequent involvement in a motor vehicle accident of May 2008 is noted and appears to have caused an aggravation of her neck and post-concussional symptoms and may have led to a further aggravation of her new symptoms”.

[129]
Dr Mungomery noted that since his review in 2011 Ms Findlay’s mental state and psychosocial functioning had reduced and she had become increasingly dependent on others for care and support. He said that the cause of this deterioration was unclear and “may have been due to various other stressors and life adversity she had been exposed to since that time.” In particular he referred to interpersonal difficulties with family, a common assault and pending common law legal matters. He said that the ongoing contribution of the January 2008 incident is complex, given her pre-existing psychological issues and other causative factors. He said it was reasonable to conclude she initially suffered an aggravation of her pre-existing psychiatric condition due to the subject incident. He said whether she continues to suffer any physical consequences of the incident is a matter for medical expertise in relevant fields and said, importantly, that if the weight of opinion did not support the view that the subject incident has contributed to her ongoing physical injuries “this would reduce the contribution of the incident of January 2008 to her ongoing psychological difficulties.” This concession is, critical because of what I have found in relation to her physical injuries.

[130]
He said that her cannabis intake may also be contributing to some ongoing psychological and cognitive difficulties. Overall, taking into account these various factors, he believed the subject incident contributed between 10% and 20% of her overall physiological difficulties. He assessed her as having a whole person impairment calculated using PIRS of 19% and attributed 10% to 20 % of this to the incident, rounded to a 2% - 4% whole person impairment.

[131]
I note that the 19% impairment is comprised of:

Moderate impairment of her self-care, with an inability to live independently without regular support.
Moderate impairment of social activities, rarely going out to social events.
Moderate impairment of concentration and persistence with severe impairment of her employability which he says is limited to no more than one to two days at a time and less than 20 hours per fortnight.

[132]
Thus, of the 19% impairment he assessed, with the consequences he outlined including the severe impairment on her employability, his opinion was that only a 2% - 4% whole person impairment was due to the subject incident, and that was itself dependent on findings that she has ongoing physical consequences from the subject accident. I find, as I have said, there are none.

[133]
In giving her evidence it appeared to me that the plaintiff was not forthcoming about her previous psychiatric or psychological history. I did not find her an honest witness.

[134]
In the file note of 14 April Dr Mungomery indicated he would be “inclined” to adhere to his earlier assessment of a 6% or 7% impairment due to the subject accident, rather than his more recent 2% to 4% assessment if certain assumptions were made. He indicated three such assumptions, namely:

(a)
Ms Findlay has ongoing physical impairment from the subject incident;

(b)
The injuries suffered in the motor vehicle accident were not particularly severe;

(c)
The levels of care she currently receives are similar in nature to the care she received immediately after the subject accident.

[135]
As is apparent, I do not accept the first of those assumptions. In relation to the second and third, whilst I do not think the injuries suffered in the motor vehicle accident were particularly severe I do conclude:

(a)
She had recovered, or almost recovered, from the effects of the Woodford incident by the time of the motor vehicle accident.

(b)
Thereafter she herself attributed any ongoing symptoms to the motor vehicle accident and/or her pre-existing conditions (mostly her lumbar back problems and depression).

(c)
The level of care she needed during April and up to the motor vehicle accident was very much diminished compared to the earlier level of care and, insofar as services were provided, were due to her inability to cope emotionally and not directly to any physical consequences of the subject accident.

[136]
Accordingly I do not accept that Dr Mungomery’s reports support a finding of ongoing psychiatric impairment due to the Woodford incident.

[137]
They certainly support the view that the plaintiff has a significant psychiatric condition. That was evident to me when she gave evidence. I have been conscious of that throughout the trial and especially so when I have turned my mind to the assessment of the plaintiff and the reliability and honesty of her evidence.

[138]
I am conscious of the pertinent observations of McMeekin J in Schneider v Smith & Anor [2016] QSC 47 where at para 17 his Honour said:

“One of the difficulties in assessing a person who claims to have a psychiatric impairment is that, if the claim is true, it is unlikely that the person will behave or react ‘normally’.”

[139]
It is partly because of such concerns that I have in this case carefully considered contemporaneous records in coming to the conclusions I have. My views have largely depended on an assessment of those records. They are, in my opinion, almost entirely inconsistent with the plaintiff’s case, at least since April 2008.

[140]
That is not to say that other factors did not influence me in coming to the conclusions I have about the plaintiff. For example, the plaintiff was extensively cross-examined about her Facebook account. It was suggested that the account showed that the plaintiff was having a much more sociable and enjoyable existence than she was prepared to accept. That is likely to be so but in my view the real importance of the evidence about her Facebook account was that, when confronted with it, the plaintiff sought to excuse the operation of it by saying others had put photos and comments on her account and had taken them down when it was apparent the defendants’ solicitors were to have access to it. She suggested her children and friends, and in particular Aishah Ali, had accessed her account and had done so. All denied having access, or doing so. I accept those denials. I find it was the plaintiff who deleted items from the account and also that it was she who operated the account, placing photos of herself at various social occasions on it.

[141]
Such findings militate against the plaintiff’s credit in two ways. It is contrary to what she says about the level of her cognitive ability for her to have operated the account as I find occurred. It also strongly suggests her answers about the operation of the Facebook account by others were deliberately dishonest.

[142]
Such dishonesty was, in my assessment, also manifested in her statement that the principal focus of her complaints to doctors at Suncoast Medical Centre after May 2008 and for 12 months thereafter and to Centrelink staff who assessed her for a DSP on two occasions in late 2008, was the Woodford incident. She said it was the doctors and Centrelink staff who made a choice not to record what she had said to them. In my view that is clearly false. I think the plaintiff was dishonest in giving the answers she did to questions about that issue. Even if that were not so and her answers were the product of her psychiatric illness, they indicate the unreliability of her evidence which in any case undermines the worth of medical reports which rely on her reliability and honesty.

[143]
In my view the reports of her treating psychiatrist, Dr Khoo, must be seen in that light. I have commented in a previous case (Greenall v State of Queensland [2013] QDC 277 especially at [134]) about the giving of evidence by a treating psychiatrist. I might add that the Dr Khoo in that case was not the same Dr Khoo in this. I warned in that case that a treating psychiatrist may not be seen as a “dispassionate expert but instead exhibiting the affinity which can develop between a treating doctor and her patient”.

[144]
It is I think unnecessary to refer in detail to Dr Khoo’s opinion in this case. His opinions were based on the view that prior to Woodford the plaintiff was functioning well as a mother and in part-time employment. That was not so. He was also of the view that the Woodford incident was significantly more serious in terms of ongoing physical injuries than I have found to be the case. Whilst such matters may not affect the quality or benefit of Dr Khoo’s therapeutic treatment they do undermine the value I can place on his medico-legal assessment of the cause of her impairment.

[145]
I prefer the view of Dr Chalk and ultimately, in view of my findings about the limited extent of the physical effects of the Woodford incident, that of Dr Mungomery. I find she has no psychiatric impairment flowing from the subject accident. I note that Dr Chalk’s opinion, consistent with my own findings, is that any mental disorder from which the plaintiff may have suffered was only “transiently aggravated” by the Woodford incident. I do not think it otherwise necessary to set out his opinions, which I accept.

[146]
In so finding I am also conscious of a number of other significant stressors in the plaintiff’s life. Difficulties with her family are alluded to, for example, in the reports of Dr Anderson and the records of her psychologist, Ivan Chandler. I am also conscious of the fact that the plaintiff’s financial circumstances must have been very strained by her inability to work after December 2006. She was at that time the mother of two children and paying a mortgage on a townhouse which she said was about $1,200 per month. As a consequence the house which she lived was sold in mid-2009. She said she had met mortgage payments after December 2006 by drawing down on the equity in the property. This must have been a cause of very significant distress to her and I am sure would have exacerbated her underlying psychological vulnerability.

[147]
Dr Khoo’s comments, in the file note of the meeting of 4 April 2016, that when a person is unwell, which I take to mean psychiatrically unwell, they “tend to attract adversity”. Is, I think, very apposite to the plaintiff. I have no doubt that the plaintiff was very vulnerable at the time of the Woodford incident. After it she did not cope well, for a period. However, she had improved by April 2008 but again adversity struck with the motor vehicle accident. Her attention and the cause of her ongoing stress, focused on that incident. Other events, for example family issues but unknown to me, would I am sure have caused other exacerbations of her condition. I think the sale of her house would have been such an event.

[148]
The cause of her ongoing psychiatric impairment – whatever the true extent of it – is directly related to her underlying condition. The subject incident was an incident along the path of life but I am convinced it has no discernible part to play in her current condition and has no part to play in respect of any physical symptoms. Without it, the plaintiff would have been in the same position as she has been, I find, after May 2008.

Lay Evidence

[149]
It is necessary to refer finally to the evidence of a number of lay witnesses who saw the plaintiff at and soon after the Woodford incident. Shelley Emia was with her at the time, drove her home and had some contact with her thereafter. Dylan and Sophie, her two children, cared for her in the immediate aftermath of the incident. Aishah Ali also provided assistance. It was she who took the plaintiff to Ms Ali’s then former husband, Dr Ali, on 4 January.

[150]
All spoke of the dramatic immediate impact of the incident on the plaintiff. All spoke of her current disabled condition. All were sympathetic, as is to be expected. In my opinion however all have only very vague recollections of the detail of the plaintiff’s condition and insufficient recollection of that detail to gainsay what I find was her recovery up to May 2008. They are not now able to distinguish between her circumstances after 9 May, and that immediately before. In my view they also have difficulty distinguishing between her condition post Woodford and that before Woodford. Her son, Dylan, said there had been earlier occasions when his mother had taken to bed for days at a time or was otherwise significantly affected (see for example T4-61, L 3/8 and T3-92 L 1/7). Another example of this inability to differentiate between her condition prior to and post Woodford is that I read to Ms Ali a description of the plaintiff’s condition in August 2007 taken from the Centrelink records. It will be recalled that this was based on a face to face interview. I read to her what is largely as set out in paragraph [25] hereof. Ms Ali told me that was how the plaintiff was after Woodford, but said she had never seen her like that beforehand. She described her then as being the life of the party. In my view that answer very significantly undermined the accuracy and reliability of Ms Ali’s recollections. Ms Emia agreed that after a few months following the incident she did not regularly see the plaintiff (T5-35 L 39/45). In that circumstance she is really unable to comment about what I have found was the significant improvement in the plaintiff’s condition up to the time of the motor vehicle accident.

[151]
Neither Sophie nor Dylan impressed me as persons able to accurately recall the detail of the plaintiff’s symptoms or her subsequent recovery. In my view it is likely they felt then, and still feel, overwhelmed by their mother’s psychiatric presentation. They accept what she now says about it, and cannot sufficiently recall her condition before January 2008, and the improvement in her condition that I found occurred up to the time of the motor vehicle accident and her subsequent condition. Additionally the close friendship between the plaintiff, Ms Ali and Ms Emia has, I think, clouded those persons recollection of events. They might now be described as advocates for her cause.

[152]
Ultimately nothing those witnesses said caused me to have concerns about the findings I have made.

Damages

[153]
In the circumstance it is necessary to assess the plaintiff’s damages on the basis that she had a minor head injury, with some emotional decompensation of a very temporary nature. The assessment is regulated by ss 61 and 62 of the Civil Liability Act 2003 (Qld) together with the Civil Liability Regulations 2003 (Qld).

[154]
Pursuant to Schedule 4 of the regulations the plaintiff’s injury falls in my view within Item 9 – minor head injury. An ISV of 5, amounting to $5,000 general damages is appropriate perhaps even generous in my view having regard to the temporary effect of the injury. In my view that assessment has sufficient regard to the minor emotional or psychological consequence, of a transient nature, that the head injury had upon her sense of well-being.

[155]
The plaintiff would also be entitled to a small sum for medical and pharmaceutical expenses associated with her injury but would not overcome the threshold requirements of the Act in respect of Griffiths v Kerkemeyer damages. There is in my view no reason to find that she had any need for care beyond the period of about four months post-accident up to the motor vehicle accident of 9 May 2008. In addition, in circumstances where the plaintiff was not in employment at the time of the incident, and had not been in any form of employment for a period in excess of 12 months, there is no basis for finding that she has suffered economic loss.

[156]
It is difficult to be precise about the quantum of her medical and pharmaceutical expenses. Some of the proven expenditure in that time was related to her pre-existing back injury and/or depression. I note that the PBS schedule (Exhibit 34) indicates that no scripts whatsoever were filled between 11 April 2008 and 13 May 2008, supportive of the view I have taken about the amelioration of her symptoms in that period. Between 1 January 2008 and 9 May 2008 the plaintiff’s Medicare schedule indicates that some $1,505.60 was expended on medical appointments. Some of that, for example the scan of her brain on 4 January 2008 and the consultation with Dr Ali on this date very clearly related to the subject incident. Others, such as the attendances upon Mr Chandler are less obviously related. It seems from his records that some related to issues associated with the plaintiff’s children’s schooling and other issues unrelated to the accident. Others, such as attendances on her GP for a facial rash are clearly not related. In my view, it is impossible to do other than take a broad brush approach to the assessment of such damages. I would allow a $1,000 by way of special damages, inclusive of interest.

[157]
In the circumstances I give judgment for the plaintiff of $6,000. I will hear argument as to costs.

Editorial Notes

Published Case Name:
Elizabeth Ann Findlay v Queensland Folk Federation Inc and Ors
Shortened Case Name:
Findlay v Queensland Folk Federation Inc
MNC:
[2016] QDC 87
Court:
QDC
Judge(s):
Reid DCJ
Date:
21 Apr 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Greenall v State of Queensland	[2013] QDC 277	2 citations Jump To Cite 1 - [2013] QDC 277 Cite 2 - [2013] QDC 277
Schneider v Smith	[2016] QSC 47	2 citations Jump To Cite 1 - [2016] QSC 47 Cite 2 - [2016] QSC 47

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

Exit Distraction Free Reading Mode

Change Font and Font Size

Findlay v Queensland Folk Federation Inc[2016] QDC 87