District Court New South Wales Medium Neutral Citation: SE by her Tutor AH v Grech [2020] NSWDC 474 Hearing dates: 28 & 29 July 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Civil Before: Gibson JC DCJ Decision: Orders: (1) Judgment for the plaintiff for $0. (2) Costs reserved, with liberty to apply. (3) Exhibits retained until further order. Catchwords: PERSONAL INJURY – assessment of damages Legislation Cited: Civil Liability Act 2002 (NSW) ss 5E, 31 Uniform Civil Procedure Rules 2005 r 42.35 Motor Accidents Compensation Act 1999 (NSW) ss 92(1)(a), 126 Cases Cited: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Stitz v Manpower Services & Anor [2011] QSC 268 South Western Sydney Local Health District v Gould [2018] NSWCA 69 The Nominal Defendant v Kostic [2007] NSWCA 14 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Texts Cited: The Honourable Justice Ipp, 'Problems with Fact-Finding', (2006) 80 Australian Law Journal 667 Category: Principal judgment Parties: SE by her tutor AH(Plaintiff) Alesha Ann Grech (Defendant) Representation: Counsel: Mr Jobson(Plaintiff) Mr A J J Renshaw and Mr J Nottle (Defendant) Solicitors: Plaintiff: Marcel Joukhador (Harrow Legal) Defendant: Giuseppe Mancuso (Hall & Wilcox Lawyers) File Number(s): 2019/80873 Publication restriction: Plaintiff's name anonymised Judgment The plaintiff's claim for damages 1. The plaintiff, by statement of claim filed on 15 May 2019, brings proceedings for damages for injuries she suffered in a motor vehicle accident on 19 December 2015. SE, whose name has been anonymised for reasons set out in more detail below is twelve years old, and thus brings these proceedings through a tutor, her mother, pursuant to a Certificate of Exemption issued under s 92(1)(a) of the Motor Accidents Compensation Act 1999 (NSW). 2. The statement of claim sets out that the plaintiff suffered injury whilst a passenger in a vehicle which at the time of the accident was stationary in traffic on Bay Street in Brighton-le-Sands, Sydney, New South Wales. This vehicle was struck from the rear by the defendant's car with such force that the plaintiff and her fellow passengers were impacted as their own vehicle rammed forward into the vehicle in front. The ensuing five-car pile-up created a major traffic incident and the police and ambulance were called. The parties' pleadings 1. The Statement of Particulars on 15 May 2019 identified the injuries the plaintiff suffered as follows: (a) An injury described as "broken nose/fracture"; and (b) Post Traumatic Stress Disorder. 1. The plaintiff's continuing disabilities were described as: (a) Difficulty breathing; (b) Loss of hearing; and (c) Loss of balance. 1. The Statement of Particulars served with the statement of claim identified future treatment expenses as "extensive surgery in relation to her nose and hearing loss," adding that details of these expenses would be "advised". A claim for economic loss was foreshadowed on the basis of "reduced capacity to obtain employment in the open labour market." 2. The Defence, filed on 30 October 2019, admitted breach of duty of care but, relying upon sections 5E and 31 of the Civil Liability Act 2002 (NSW) denied that the plaintiff suffered injury, loss and damage as claimed in paragraph 6. 3. The defence identified two additional issues: (a) The plaintiff's claim for interest on damages is in error as interest entitlement is governed by the Motor Accidents Compensation Act 1999 (NSW). (b) In paragraph 5 of the Defence, the defendant relies upon r 42.35 of the Uniform Civil Procedure Rules 2005 ("UCPR"), to the effect that the plaintiff should not be entitled to costs, as the damages and issues falling below the threshold of $40,000. 1. The relevance of pleading r 42.35 became apparent when Mr Jobson, opening the plaintiff's case, stated that the plaintiff's claim for nose injury (including the claim for future surgery and economic loss) was abandoned, and the claim limited to the following past and future out of pocket expenses: Past Out of pocket expenses: $ 59.45 Future Out of pocket expenses: As per Dr Gertler Child Psychiatrist 10 sessions @ $350.00 each $ 3,500.00 1. The defendant's schedule of damages sets out that the plaintiff should not even be entitled to this modest sum, the sole past out of pocket expenses being a medico-legal expense and the psychiatrist's fees being challenged as to causation. The issues for determination 1. Conformably with Practice Note DC (Civil) No 1, the defendant served a schedule of issues as follows: (a) Has the plaintiff proven that she suffered injury, loss or damage as a result of the accident pleaded? (b) The quantum of damages (if any) which may be awarded to the plaintiff. (c) The extent of any past treatment expenses incurred as a consequence of the accident. (d) Whether the plaintiff has any accident-related need for future treatment and, if so, its extent. (e) The application of section 126 of the Motor Accidents Compensation Act 1999 (NSW) and whether the plaintiff has any accident-related future loss of earning capacity and, if so, its extent. 1. Mr Jobson did not provide a statement of issues when he opened (or, for that matter, a chronology). His client's abandonment of the claim for a fractured nose and for future economic loss, made at the commencement of the hearing, took Mr Renshaw by surprise. 2. The issues before the court are thus only the characterisation of the medical attendance claimed for the past attendance and whether the plaintiff has any accident-related need for future treatment. 3. The parties have agreed that all costs issues should be reserved. Those issues are, Mr Renshaw forewarns me, likely to be significant. The circumstances of the accident 1. On the day in question, the plaintiff and her four siblings were seated in a van being driven by a person described by the plaintiff's mother in her evidence as her "partner" (T p. 8 line 22). They were on their way to have a family picnic. 2. The vehicle in which they were travelling was a van with three rows of seats. The plaintiff's mother and her partner were seated in the front seats. The plaintiff was in the rear seat, beside her twin brother. The plaintiff's three other siblings were sitting in the middle seats. 3. The impact was described by the plaintiff's mother as follows: "So basically that day we were going on a picnic, taking them on a picnic, in the evening it was hot, it was nice weather. We were all in the car talking to my partner, I was just facing talking to him and then all of a sudden that's when we felt the impact of something just slamming into us and yeah my first instinct was to kind of jump over and - 'cause I had the two younger ones and they're both premi [as said] and very vulnerable, to help them but I mean it was just - yeah I just - it was chaos because when we got hit we continued to hit other cars and I was screaming shouting thinking why is he hitting other cars? How did this happen and yeah it was just all over the place." (T 63) 1. The plaintiff gave a similar description: "Q. What's the first thing you remember about this accident? A. We were having fun, talking, and then a bang started and we just got scared and, like, all the, like, all my, like, brothers and sisters, like, got scared and I got scared and my nose was hurting me and it was, like-- Q. Did you know that the accident was going to happen? Were you looking out the back at all or not? A. No. I was, like, in the front talking to the people, like, in the front of me. Q. How would you describe the hit? Was it a big one or a little one? A. Like, the bang? Q. Yes? A. It was a big one. Q. The car was very close to you because you're right at the back? A. Yeah."(T 63) 1. The plaintiff said she had hurt her nose (T 63) and that she had "a big bruise" on it (T 65). Her mother said her nose was bleeding (T 31). The plaintiff said she felt "pain and worried" after the accident (T 66). 2. The plaintiff's sister and brother-in-law came to the accident scene to take the children and the plaintiff's mother to their home. Both the plaintiff and her mother said that the family's general practitioner, Dr Arefeen, came to examine the family that evening. However, no charge was made to Medicare for any such visit and there is no claim for reimbursement. 3. The plaintiff's case is that she was otherwise in good health, both physically and mentally, until the day of the accident. Mr Jobson asks me to infer that, as this was "quite a shocking accident involving five vehicles" (T 98) in which the plaintiff's mother and her partner (who was taken to hospital by ambulance) were significantly injured, the plaintiff must have suffered not only the nasal blow described, but also significant shock and distress. 4. There is a significant gap in the medical evidence in relation to the claim for the disabilities resulting in the plaintiff's claim for future out of pockets. The delay between the accident and the sole medical visit in relation to the PTSD claim (which occurred on 29 May, 2015) and the absence of any treatment since that date are explained as relating to a busy mother who herself suffered injuries and who did not appreciate the degree to which her daughter required treatment, despite her evidence that the plaintiff's stress-related behaviour was giving her "hell" (T 12, T 15, T 25, T 135) over this period. 5. Two medical issues arise. The first, and most important, is the injury to the plaintiff, in terms of her mental health and wellbeing. The second is what I am to make of the evidence concerning the plaintiff's claim of injury and treatment (or lack thereof) in terms of credit and causation issues. The value of the plaintiff's evidence is limited by reason of her age. As set out below, a substantial challenge is made to the evidence of the mother. 6. A significant difficulty in relation to both these issues is that, although the case proceeded on the basis that the plaintiff had had no counselling or psychological/psychiatric treatment of any kind or value, documents tendered by the plaintiff during the hearing revealed that the plaintiff had in fact had extensive counselling, both from her schools and from a social worker assisting her mother. However, this counselling related to family problems which were either dismissed as unimportant (in the case of the plaintiff's discovery about her true parentage) or not referred to (in the case of domestic violence issues) in the medico-legal reports. The result is a series of evidentiary problems wholly out of proportion to the modest sums claimed in this litigation. 7. By reason of these inconsistencies, before considering the oral evidence of the plaintiff and her mother, the best course is to set out and analyse this conflicting medical evidence, conformably with the recommendation of such a course by the New South Wales Court of Appeal: The Nominal Defendant v Kostic [2007] NSWCA 14; Whalan v Kogarah Municipal Council [2007] NSWCA 5; see also The Honourable Justice Ipp, 'Problems with Fact-Finding', (2006) 80 Australian Law Journal 667. The plaintiff's state of health prior to the accident 1. The plaintiff's past psychological history is described by Dr Gertler, the plaintiff's medico-legal expert, as follows: "Past History Prior to the motor vehicle accident [the plaintiff] was described as having had a normal development. She is one of twins and was born slightly prematurely but did reach the developmental milestones at the usual ages. She started pre-school and then primary school without difficulty, although as mentioned above, was teased and possibly bullied at the first public school she attended. Several months prior to the motor vehicle accident [the plaintiff]'s mother became unwell and was unable to manage the children. As a result [the plaintiff] and her brother and older sister spent several weeks at Stewart House. [The plaintiff] has always related well to her step-father but was unaware that he was not her biological father until last year, when her biological father made contact with his children. The contact however did not last and [the plaintiff] did not form a bond to him. She is close to her step-father however, as well as her mother." (Exhibit A) 1. Dr Gertler sets out, on page 1 of his report, that he had been provided the notes of the Wangee Clinic (the mother's source of welfare assistance) as well as documents produced by the two schools, but does not refer to their discussion of the plaintiff's counselling. He paints a picture of a normal childhood with two attendant parents, apart from a short absence from the family home due to the plaintiff's mother becoming "unwell". 2. The defendant's medico-legal expert, Dr Rikard-Bell, has had the advantage of reading Dr Gertler's report as well as some school reports, but not the notes from the Wangee Clinic. Unlike Dr Gertler, he noted two important factual issues. The first was that the plaintiff's mother moved around a great deal while in hiding from the plaintiff's father while the plaintiff was a baby, and the second was that the plaintiff was having counselling on a fortnightly basis: "[The plaintiff] has not had any previous anxiety or depression as a young child. Over recent years [the plaintiff] has been seeing a school counsellor who's been providing ongoing support, Ms Pickles. The notes were reported. This has been helpful to work on self-esteem and confidence. The mother wasn't clear but the counselling appears to have been occurring over the past few years at Greenacre Public School, perhaps dating back to 2017 during school term approximately every fortnight focusing on self-esteem and anxiety." (Exhibit 4) 1. What was the plaintiff having counselling about? This is revealed in Exhibit E, a Stewart House Student Permission Form and Student Health Information document relating to a period of time the plaintiff spent in Stewart House where two family issues were under discussion, according to those present (Ms Schreuder (the Intensive Family Support worker) at Sutherland Shire Family Services and other social workers: "(1) Risk – History of trauma; DV Mental health, medical issues (2) Gus, Sue and Anissa [the plaintiff and two of her siblings] "officially" not aware of biological father." (Exhibit E) 1. The plaintiff's mother did not attend this meeting but, when recalled to give evidence about these conference notes (produced at the end of the plaintiff's case), said that she had earlier explained to Ms Schreuder the matters troubling the plaintiff, which she said included the motor vehicle accident (T 133-134). 2. The plaintiff's mother was asked what the "trauma" under discussion was: "Q. What were your words? A. --about her trauma after the car accident, about what she was going through, exact word for word, of course I don't remember exact word for word, about her sleeping behaviour, that she couldn't be - she couldn't sleep by herself, that if she were to go to the Stewart House camp that she would have to be, you know, with other people. She had to be monitored. I was asked questions about had she done a teeth check, has she done all of that, can - is she allowed to get all that done, schooling. We spoke about in regards to those two weeks that she—". (T 135) 1. However, Mr Renshaw put to the plaintiff's mother that she had ticked "no" for the box which asked "Has your child suffered any recent illness, accidents or injuries" (Exhibit E page 4): "Q. I want you to go to the heading Recent Medical Conditions. Could you look at the question, "Has your child suffered any recent illnesses, accidents, or injuries?" On that page. It's on that page that the court officer - can you see the heading Recent Medical Conditions? A. Yes. Q. Down at the bottom in that square of Recent Medical Conditions there is the question, "Has your child suffered any recent illnesses, accidents, or injuries?" A. Yes… Q. What did you understand that question to mean? A. Well, when I filled this out, I filled it out in the presence of three other people and when - every question that we answered, we went through it, and what I was explained to with this question was, "Has she fallen at school, has she broken her leg in the last six months, broken her arm, that she can't participate in the rock climbing in the - or the staff that they'd be doing for the two weeks there. Is there anything that - has she had an accident that's going to affect her not to do anything." Q. You answered that question with the answer-- A. "No," because they told me to answer "no" because she was healthy enough to participate. I answered it what they told me to answer and I, I, I let them know about the car accident, but that was not going to prevent her from doing any of the activities and she didn't need to get a wheelchair or special access for her to be, you know - to - at Stewart House. She didn't need that extra care where she needed a wheelchair or she needed, you know, the crutches or anything like that, so—." (T 135-136) 1. Mr Jobson submits that, in the circumstances, I would read the reference to "risk – history of trauma" in the notes of the meeting set out in page 2 of this document as referring to the "trauma" of the motor vehicle accident. 2. I do not accept this interpretation. As the plaintiff's mother's evidence demonstrates, the references to "history of trauma; DV" in the counsellors' notes are a reference to the history of domestic violence which form part of the reasons for the plaintiff and her mother receiving counselling over a long period. That admission was wrung from the plaintiff's mother reluctantly: "Q. You refer to Catherine Schroeder as your social worker, is that right? A. Used to be. Q. Why do you have a social worker? Why do you have a social worker? A. Why did I have a social worker? Q. Why do you or did you have a social worker? A. Because I needed at that time a social worker. Q. Why was that? A. Just to - because of - of personal health problems. Q. What were they? A. Do I have to answer that? Q. Yes. HER HONOUR Q Yes, you do. A. So it's just - just problems that I was going through at that time, like for example medical problems. I was - I had migraines and - and Centrelink advised that it was a - it was a good idea that they would put a social worker in place, and one thing led to another through the hospital. They got me in connection with the - the Sutherland Shire. RENSHAW Q. So she was your social worker? A. Yes. Q. Have you suffered from domestic violence? A. Ages ago, yes." (T 141) 1. The plaintiff's mother's attention was drawn to the reference to "DV" on page 2 of the document and asked: "Q. You'll see risk, history of trauma DV. That's domestic violence, isn't it, that's been - that you've discussed with her? HER HONOUR Q. Do you agree or disagree? You have to answer. A. Well, I agree that it's - I've discussed it with me, but I was discussing also my kids. Because there was some incidents that have happened with their stepdad. RENSHAW Q. So the trauma would be related in - domestic violence for the children? A. Well— Q. That's right, isn't it? A. No, because issues and concerns, what they were - wanted to - the issues and concerns for the children were those, so it would have been the trauma for [the plaintiff] and the DV, and mental health— Q. Well the trauma for the other children as well because of the - involving their stepdad? A. No, but because they were involved in the car accident too. Q. But risk, history of trauma DV. Did they witness any of this domestic violence? Yes or no? A. Yes. Q. I see. A. See, what they - what I think was normal at that time, to be in a relationship with, my social worker thought that it wasn't. Q. I see. A. Mm. Q. You were on a pension, were you? A. That's right. Q. What pension was that? A. Single parenting. Q. I see. So you had a long history of a dysfunctional relationship, is that right? A. Very long history. Q. Involving multiple-- HER HONOUR: Sorry. Q. A very long history of what? Just say it again—." (T 142-143) 1. Mr Renshaw asked (T 143, line 26): "Q. Multiple instances of domestic violence. A. Not, not - I can't say multiple, no. Q. When was the last before this accident? A. Before the accident? Q. Yes. A. Would have been 2013, 2014. Q. Well, you - I mean-- A. And on occasions things that would happen. Q. But you had a social worker principally because of domestic violence, didn't you? A. I've - I - I've had a social worker all the way from 2000 and - so, I know [the plaintiff] was - 2011, I think. 2000. It - even - even before that. I had a social worker when the kids were young. Q. That's because this domestic violence and dysfunctional family has been going on for a very long while, isn't it? A. Well— Q. Yes or no? JOBSON: Well, she doesn't, with respect-- HER HONOUR: Yes, she can answer that. Yes or no. RENSHAW: Yes. Q. That's right, isn't it? HER HONOUR Q. Do you agree that that is the case? A. That I had a dysfunctional family RENSHAW Q. Going on for a very long while. HER HONOUR Q. With domestic violence. RENSHAW Q. With domestic violence. A. It depends on what you think domestic violence is. I didn't think so, but if they thought so then yeah. Well-- Q. Well, they did think so, didn't they? That's what they told you and that's why you had the social worker, isn't it? A. I had the social worker to help me. I had three kids, I had no family, no nothing, and I was on my - myself. They were helping me. They helped me in every aspect."(T 143-144) 1. Dr Rikard-Bell notes that the plaintiff had been assessed at Stewart House for counselling with risk of trauma in circumstances where the mother had had some difficulty, including difficulties prior to the accident which resulted in intervention which included staying at Stewart House. He stops short of referring to domestic violence. He has, however, added that the mother "travelled and moved" to avoid the child's father (page 6) and sets out a history of a series of moves, from Melbourne to Cairns to the Gold Coast, to two locations in Sydney which he considered might have impacted upon the plaintiff's feelings of being unsettled. This suggests that there were problems between the plaintiff's mother and birth father as well. 2. Neither Dr Rikard-Bell nor Dr Gertler picked up on the reference to "DV" or elicited any history from the plaintiff's mother about domestic violence being an issue in the plaintiff's family for what appear, on any reading of the facts, to be considerable periods of time and to have been sufficient to warrant counselling and/or other services by the mother's social worker, two schools and Stewart House. 3. This brings me to the reappearance of the plaintiff's biological father. Dr Rikard-Bell does, however, note the other issue considered to be of concern by the Stewart House meeting attendees, namely the significance of the plaintiff and two of her siblings not knowing that their step-father (or the plaintiff's mother's partner) was not in fact their biological father. Dr Gertler is dismissive of this (see page 3 of his report). Dr Rikard-Bell notes, but without comment other than by inference: "Dr Gertler diagnosed PTSD and 5% whole person impairment. There was no comment about the biological father entering her life in 2018 and the impact of this sudden change as she was unaware of her biological father previously". 1. Dr Rikard-Bell also identifies further problems that the plaintiff was discussing with the school psychologist, Rachael Pickles, (3 April 2019) (page 4 of 14). "during 2019" (page 4), when she had been "teased about being called "fatso and scum". He noted references to bullying and other "largely school issues" However, Dr Gertler merely noted that the plaintiff was "teased and possibly bullied at the first public school she attended". He makes no reference to her weight problems; to the contrary, he says approvingly that "her appetite is good and she has gained a significant amount of weight in the past several years" (page 4). Unlike Dr Rikard-Bell, he did not pick up that her weight is an issue which has caused her teasing at school and causes her distress. The plaintiff told the court that her weight problem and teasing were significant problems that she discussed with her counsellor. 2. There are other gaps in the medico-legal reports. The first of these is the lack of detailed information in both doctors' reports as to the plaintiff's hearing, sinus and tonsil difficulties, which were severe. The extent of the plaintiff's problems with her tonsils, adenoids and glue ear are clear from the general practitioner's notes, going back to 2010. This is relevant to causation because Mr Jobson seeks to attribute the plaintiff's sleeping problems to trauma from the accident, whereas the treating doctors' reports paint a picture of the plaintiff having trouble sleeping and being distressed at night by her sinus, adenoid and tonsil problems for many years beforehand. 3. These were significant health problems. Dr Arefeen's notes reveal that the plaintiff had an operation in the form of a tonsillectomy on about 30 August 2017, an operation which followed years of difficulty in terms of hearing problems of such severity that she was discovered to have had to been lip-reading for some considerable period of time at school. Dr Gil Kleiner, in his report to Dr Arefeen dated 27 March 2017, stated: "She apparently has had poor hearing for years. It's never been properly investigated. Her speech development is just average. Her teachers are complaining of her performance at school. There are minimal episodes of pain or discharge. In addition, she is a constant mouth breather and snorer and a very slow eater. She is putting weight on…….." (Exhibit A) 1. Dr Kleiner states that her hearing loss is due to her bilateral serous otitis media and that her constant snoring and mouth breathing are due to her enlarged tonsils and adenoids. (Exhibit A page 32). This is confirmed in the report of Dr Kleiner to Dr Taylor of 1 June 2017 (Exhibit 3). The plaintiff's sleeping problems are a feature of her breathing and tonsil problems. 2. In addition, the interrelationship between the plaintiff's hearing problems and her weight is also of significance. 3. Despite these difficulties, the plaintiff appears to have continued to do well at school, as her school reports show. Dr Rikard-Bell sets these out at page 4 of his report and drew conclusions as follows: "School reports "From Kindergarten the grade levels were all satisfactory, level C in 2013. In 2014 grades were largely Ds and Cs for 2015 at Austral School. 2015 at Sylvania School – semester 1; 2 basics and 4 satisfactory and Semester 2; 2 basics and 4 satisfactory. 2016 Semester 1; 2 basics and 4 satisfactory. 2017 Semester 1; 3 basic, 3 satisfactory, Semester 2; 2 basics 4 satisfactory and 1 limited. 2018 Semester 1; 2 limited 4 basics and 1 satisfactory. 2018 Semester 2; 2 limited 4 basic. 2019 Semester 1; 1 limited 2 basic and 4 satisfactory. This suggests that there was no clear change between 2015 and 2016. The motor vehicle accident occurred at the end of 2015. Grades appeared to have been consistent. There is no clear impact on her educational achievement." (Exhibit 4) Conclusions concerning the medical reports 1. Mr Jobson submits that both medico-legal reports recommend treatment, and that I must accordingly award the costs of such treatment, if necessary abating these to allow for the impact of other counselling needs unrelated to the accident. 2. Dr Rikard-Bell, on the issue of causation (p. 9), notes that there are features of anxiety which are consistent with generalised anxiety disorder, but he attributes this to her earlier life as well as to problems at school relating to her bullying and weight issues, noting that she has needed counselling through the school. He concludes that the generalised anxiety disorder is related to factors other than the motor vehicle accident, which he described as "mild" and where any adjustment difficulties he believed had been resolved. 3. That is not the opinion of Dr Gertler, who notes that the plaintiff "has had counselling now for some three years and this appears to have had little effect on her symptomatology" (Exhibit A, p. 4). He considers she requires "further trauma focused counselling, most likely associated with psychotropic medication" (p. 4). He considers to see a child psychiatrist at least every two to three weeks for six months, "tapering off after that time" with the cost of each visit at $350. 4. I was not addressed by either counsel about Dr Gertler's additional recommendation of six months of psychotropic medication. 5. The role of the expert is to furnish the tribunal of fact with a careful and factually accurate analysis of the medical evidence with which he has been provided: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] per Heydon JA. The expert's opinion must have a rational relationship with the facts proved (at [64]): "The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved." 1. The history that each of the medico-legal experts has assumed and that forms the basis of their respective views is not "sufficiently like" the history demonstrated in the general practitioner's notes, the counselling record (slender those these may be) and the warning signs that these practitioners should have picked up on from a young girl with a history of school and social welfare at variance with what were asserted to be her motor vehicle-related problems. The correct approach to take when both experts have made such an error is set out in Stitz v Manpower Services & Anor [2011] QSC 268 (where both experts made factual errors), namely to regard the expert evidence as having no value (see also Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6 at [133] and Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17). 2. This is particularly the case with Dr Gertler, as he has overlooked not only the plaintiff's counselling records but also her medical records concerning her sinus and her anxiety about her weight. I am also unimpressed by his ipse dixit assertion that the plaintiff should take psychotropic medication for approximately six months. 3. I am conscious of the need to exercise caution when rejecting medical evidence and of the many dangers arising from it, which are helpfully discussed in South Western Sydney Local Health District v Gould [2018] NSWCA 69. The failures in the present case, particularly by Dr Gertler, are as significant as they are obvious. His dismissive response to the plaintiff's school counselling when he had not picked up on the reasons for it does not reflect well on his skills at taking an accurate medical history. 4. Having concluded that neither of the experts has taken a correct history of the plaintiff's problems, and that Dr Gertler's opinion in relation to future treatment is wholly unreliable, can a case for counselling be made out from the lay evidence? The evidence of the plaintiff and her mother about her ongoing disabilities 1. The plaintiff's mother described the plaintiff's behaviour over the first few months after the motor vehicle accident as fsollows: "Q. From the motor vehicle accident, the first few months after the motor vehicle accident, what did you notice about [the plaintiff] in relation to the accident? A. Her sleeping habit had changed, her interactions, her fear of going into a car, her - didn't want to travel, I used to live in Sylvania and my parents used to live in Punchbowl and it was like dreading the time that I had to you know - it's either they would come up to my place or I would have to stay down there, it was just - but most of all she never allowed anyone to sleep - she didn't allow any of my kids to sleep…. Q. What would she say to you? A. She would wake me up crying that she couldn't go to sleep, she would see white lights, she was scared that she was - it's - she - she didn't die then, that she's going to die in her sleep, it's just all these stuff that she kept on mentioning in regards to what happened, and what if I was popped down a little bit more, what if - you know just questions and questions and, and she would also be - like I'll be getting her to go to sleep and I'll put her in my bed because that's the only way I could settle her down and then even when she's closing her eyes you find her she'll be bouncing or she'll be - you know, like even when she's unconscious sleeping, she's moving her hands and she's wiggling and then I'd ask her - or sometimes I'd even have to wake her 'cause I was starting to get scared with what the hell was going on, and yeah. Q. Compared to how your daughter was before the accident, how would you describe that change? A. Look there was a massive, massive change because she loved to go outdoor and you know I'd say to her, "Jump in the car, let's go to the park, or let's go to" - you know even just when there was like little festivals that would have - or we'd go to, she would love going there and even till this day we can't even get her to get onto a - any machinery, like you know just like the horses that go around the, the kids, she won't go onto that. She gives me hell." (T 12-13) 1. The plaintiff was asked if she sought medical advice about these problems: "Q. Sometime after the motor vehicle accident did you take her to see your family doctor? A. Yes…." (T 12) 1. The plaintiff's mother described this visit as follows: "Q. On 19 May 2016 did Dr Arefeen come to your house to see your daughter? A. Yes. Q. What was the reason behind you arranging the appointment with Dr Arefeen? A. For him to come see [the plaintiff] and for myself. Q. What was the reasoning behind - what did you want him to see [the plaintiff] for? A. Because she was having problems through her nose, she wasn't eating properly, she couldn't breathe properly, she wasn't sleeping, she was giving me hell, she was agitated. I wanted to see if there was something that I can give her to help her to at least get some sleep. Q. Prior to that visit, how was [the plaintiff] from then, from the date of the accident up until that home visit on 19 May 2016? How was [the plaintiff]? A. Normal seven year old. Q. Speak up, please? A. Normal seven year old. Playful, happy, bubbly. Q. After the accident, from the accident until 19 May, so after the accident till 19 May 2016, how was she? A. She was different. She was changed. She was scared, broken, complicated. I couldn't comprehend what was going on. Q. Was she still at Sylvania School at the time in 2016? A. Don't actually remember. 2016? Q. Did you write a letter to the school indicating that [the plaintiff] would finish school at Sylvania on 25 November 2016? A. Yes, sorry, yes, and then she started the rest at a different school. Sorry. Q. Before the accident, how did [the plaintiff] get on at Sylvania Public School? A. She was fine." (T 16) 1. The plaintiff was moved to Greenacre School for the commencement of the 2017 school year but the plaintiff's condition remained unchanged. "Q. But she commenced school in 2017, [the plaintiff] commenced school? A. Yeah. They, they, they started two weeks at the end of 16 and then 17, yeah, that's right. Q. How was she at Greenacre? A. Well, that's the thing. The whole purpose I decided to move down to Greenacre area is to be closer to my parents to get that help, and you know, I, I thought she would change, it'll be, you know, it'll be something different, maybe, you know, environment and all of that, maybe she would change, she'll be happier, this, that, but she wasn't, yeah, she wasn't interested. Q. You say that it wasn't - what were the problems as at 2017 with [the plaintiff]? A. So we started to realise that there's something not right. My social worker also, you know, she was trying to help with social, you know, the counselling and everything like that and, and getting her counselled, and we couldn't, we couldn't really figure out what we can do to help, but then we realised that through the teachers there and all that, that [the plaintiff] was lip reading, not actually hearing properly. And that, yeah, that caused her a lot of - yeah, and she was just not happy. Q. In 2017 when she was - and the last two weeks of 2016 at Greenacre and following was she still having difficulty sleeping? A. Yes. Q. Did she refer to you about the motor vehicle accident at any time? A. That's something that she doesn't forget." (T 17) 1. The plaintiff is also distressed when a relative of hers was killed in a motor vehicle accident. The plaintiff's mother described this impact as follows: "Q. Did that have any impact upon [the plaintiff], from your observation? A. A lot. Q. In particular, did she express any concerns to you? A. Until this day, she— Q. What are they? A. "What if - would you have to do the same thing? Is it true that you have to go identify, look? How would've I looked?" I mean, even to the extreme, like, like, weird questions, weird theories. I mean, she even observed to this day, like, even a few weeks ago, she was saying, like, "Everybody used to visit him every day and stay there for a few hours. Now they don't visit him at the graveyard. That means they forgot about him. That's what happens." And then she made an issue out of that. Q. Up until that time when that relative was killed, how was [the plaintiff] in terms of driving in a vehicle? A. Put it this way, she gets us all unexcited. Like, I literally end up having - finding it, if I find that it's more than, like, 20 minute drive, literally end up with anxiety. Like, I wouldn't do it. I can't do it. We have to kind of manipulate the whole situation. We - she has to be sitting in the middle in the second row, so right behind us in the middle that she can reach out to both of us or whoever's driving. She has to have her brother near her. If her brother's not in the car there's no way we can get her in the car. She has to be seated not straight. She always sits on, like, an sideways so she knows what's going on around her. We - I mean, sometimes to the extent just so I wouldn't have to hear her and, you know, "Watch out," or, you know, "Oh, my God, you're too close, oh, my God, look." Sometimes she gives me anxiety attacks or she puts me through, you know, doing something wrong while I'm driving so I end up just putting the music so loud that I just don't have to hear her anymore." (T 18) 1. It was in this context that the plaintiff's mother was asked if she had sought counselling for the plaintiff: "Q. You mentioned counselling earlier. Did you take [the plaintiff] to counselling? A. [The plaintiff]'s had counselling at the school. She's had counselling—"(T 18) 1. The plaintiff's mother explained that this had been carried out through her own social worker at Sutherland Family Health, Ms Schreuder (T 19), as well as through the plaintiff's own school (T 19). This included issues concerning bullying, weight and the fact that she was still called "deaf girl". (T 20). 2. The plaintiff's mother stated that she took the plaintiff to see Dr Mattar as well (Transcript 21). She was unable to explain how it was that there were no medical records indicating any visits at all by the plaintiff to Dr Mattar for such treatment, or for record keeping by that doctor omitting any such notes (T 22-23). This was despite the plaintiff being a constant source of family anxiety because she was "severely anxious, distractive [sic], unsettled, gives us hell, she gives us anxiety" and referring to the motor vehicle accident "constantly" (T 25). 3. As the above extracts from the plaintiff's examination in chief show, the plaintiff's mother says the plaintiff's behaviour had become impossible to deal with in terms of disruption of the rest of the family. She gave a similar description to Dr Rikard-Bell: "Currently [the plaintiff] has interrupted sleep at night. She gets anxious and likes to be either with her siblings or her mother. [The plaintiff]'s appetite has increased and her weight has increased. This is a source of great concern for her. [The plaintiff]'s mood is anxious and worried. She's hypersensitive and screams. She doesn't like loud noises, she's fearful about dying or others dying in the family. [The plaintiff] is hypervigilant and does have tantrums. She has a lack of confidence and doesn't like to try new things, such as going to the park when her older sister may be doing handstands. She'll avoid interacting. [The plaintiff] is avoidant of going out with her older sister. [The plaintiff] describes having bad dreams and has a fear of dying. The mother related this to the motor vehicle accident. However, it wasn't clear to me that there was a fear of dying in relation to the motor vehicle accident or whether this was part of a more generalised anxiety condition. There are no OCD symptoms. There are no headaches but there are recurrent stomach aches which appear to be stress related." (Exhibit 4 p.8) 1. When considering the mother's medical evidence, it is important to understand her background and daily life. While Mr Jobson challenged the accuracy of Dr Rikard-Bell's history of the mother being on the run and in hiding with three small children, the mother's evidence of a long history of domestic violence, reliance on a social welfare counsellor and times when she had difficulty coping ring true. Her current relationship with a man many decades older and with nine children of his own has been complicated by the birth of two premature children and further domestic violence problems. While a loving mother to the plaintiff, she missed the fact that the plaintiff's sinus and hearing problems were so acute that she was discovered by her teachers to be lip-reading in class. 2. The plaintiff's mother's true nature came out when she spoke in glowing terms of assistance given at her daughter's two schools and in particular the school counsellor, Ms Pickles, who is seeing the plaintiff fortnightly and, it would appear, assisting the plaintiff a great deal about the problems worrying her. Looking at the list of problems these experts have made, the motor vehicle accident does not appear to be one of them. Conclusions concerning the lay evidence 1. The evidence of the plaintiff and her mother paints a picture of an established counselling regime where the plaintiff can discuss the issues that are troubling her. I see no reason why the plaintiff requires sessions with a psychiatrist for any period of time and am concerned by Dr Gertler's statement that this could include psychotropic medication. 2. The defendant has successfully untangled the skein of causation and has demonstrated that the significant issues in this young woman's life do not include the car accident which occurred five years ago. I do not propose, in light of the absence of lay as well as expert evidence to venture to surmise as to what tiny percentage of any such cost (assuming any such psychiatric treatment takes place) should be attributed to the accident. Accordingly no future out of pockets will be awarded. Claim for past out of pockets 1. Although the plaintiff's general practitioner submitted a fee to Medicare for his attendance on the plaintiff for the purpose of filling out the claim form declaration, this is clearly a medico-legal expense. The charge to Medicare should be regarded as a form of report fee and should be treated as such when the issue of costs of these proceedings is determined. Orders 1. The plaintiff has not demonstrated any loss arising from the circumstances of the motor vehicle accident. I gratefully borrow McCallum J's explanation of the entitlement to award, in such circumstances, damages of $0, as set out in Dank v Nationwide News Pty Ltd [2016] NSWSC 295. 2. I make the following orders: 1. Judgment for the plaintiff for $0. 2. Costs reserved, with liberty to apply. 3. Exhibits retained until further order. ********** Amendments 10 September 2020 - Case name and Parties name have changed from SE to SE by her tutor AH. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020